REVISED JANUARY 31, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-41022
MARK HARRY GABRIEL,
Plaintiff-Appellant,
VERSUS
CITY OF PLANO TEXAS; OFFICER MARK HUNT, in his official capacity
as a member of the City of Plano Police Department; OFFICER TERRY
PAULEY, in his official capacity as a member of the City of Plano
Police Department; and OFFICER ROBERT LEITZ, in his official
capacity as a member of the City of Plano Police Department,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
January 28, 2000
Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.
DUHÉ, Circuit Judge:
Appellant Mark Harry Gabriel (“Gabriel”) challenges the
district court's denial of equitable remedies under 42 U.S.C. §
1983. For the reasons stated herein, we AFFIRM the district
court's ruling in favor of Defendants-Appellees.
BACKGROUND
Appellant Gabriel is an itinerant preacher and anti-abortion
activist. Gabriel has engaged in a number of anti-abortion
protests near R.C. Clark High School1 in Plano, Texas. The first
of these protests began at approximately 8:00 a.m. on August 27,
1996. Gabriel, waiving an anti-abortion sign and preaching his
message in a loud voice, stood in an open grassy area at the front
of Clark High. Over 100 students were already at Clark High during
this demonstration and many more arrived by bus over the course of
the protest.2 Officer Robert Leitz, the Plano Police Department's
(“PPD”) liaison officer at Clark High, approached Gabriel and
informed him that he should limit his protest to a seven foot strip
of land within the grassy area.3 Furthermore, Officer Leitz asked
Gabriel not to attempt to draw the students away from the school.
Officer Leitz did not arrest Gabriel, nor did he issue Gabriel a
written warning. Gabriel left at 8:50 a.m.
On August 28, 1996 Gabriel returned to Clark High at 8:30 a.m.
and began protesting and distributing literature. This time
Gabriel limited his activities to a sidewalk located near the
1
The Plano Independent School District (“PISD”) operates Clark
High.
2
The first regularly scheduled class at Clark High begins at
8:45 a.m. Clark High offers its students a number of “zero hour”
activities that start as early as 7:00 a.m. These activities
include band practice, music lessons, wood shop, athletic
practices, PSAT classes, and tutoring.
3
According to trial testimony, Leitz believed that this seven
foot area was a city easement in which protesting was authorized.
In actuality, a public right of way extends thirty-three and one-
half feet from the edge of the road running along the southern
boundary of Clark High onto the school grounds across the entire
front of the campus.
2
school's western boundary.4 Shortly after 8:30 a.m., Vice
Principal Doug Damewood told Officer Leitz that Gabriel had
trespassed on school property in the course of his protest.
Damewood and Officer Leitz approached Gabriel. At Damewood's
request, Officer Leitz issued a verbal warning to Gabriel that he
was trespassing on school property.
At 7:45 a.m. on September 3, 1996, Gabriel returned to the
grassy area in front of the school and began protesting. Gabriel
waived a foam placard depicting an aborted fetus with the word
“abortion” printed beneath the picture. While waiving the placard
and shouting his religious message, Gabriel attempted to distribute
literature to the students. Officer Leitz along with PPD officers
Mark Hunt and Terry Pauley were present from the beginning of the
demonstration. PPD Sargent Ronald Smithheart and PPD Lieutenant
Paul Rimka arrived later.
Gabriel's protest caused agitation among the students
attending zero hour classes and those arriving to start their
regular class day. School officials had to cancel a number of zero
hour classes that day and delayed the start of other classes by
approximately forty-five minutes. The trial court found that
Gabriel's activities not only caused many students to be late for
class, but also caused dangerous traffic conditions.
As the protest escalated Officers Hunt and Pauley approached
4
The entire length of the sidewalk in this area is located
within the thirty-three and one-half foot public right of way.
3
Gabriel and requested that he identify himself. Gabriel refused.
Officer Hunt left the scene and went to discuss the situation with
the Principal of Clark High, Jimmy Spann (“Spann”). Spann
indicated that he and his staff were having difficulty getting
students off of the school's buses and into the school as a result
of the protest. Officer Hunt returned to the scene and repeatedly
requested that Gabriel put down his sign. Gabriel refused.
Gabriel swung the sign at Officer Hunt's head, at which time
Officer Hunt grasped Gabriel's wrist.5 Upon being grabbed, Gabriel
dropped to the ground and released the sign. Officer Hunt then
informed Gabriel that he was disrupting classes in violation of
section 37.1246 of the Texas Education Code and requested that
Gabriel leave. Gabriel left.7 Officer Hunt did not arrest
5
Gabriel contests this issue and insists that he did not swing
his sign at Officer Hunt. The trial court's resolution of this
dispute in favor of Appellees is immaterial to the resolution of
the case.
6
Section 37.124 reads in relevant part, “A person commits an
offense if the person, on school property or on public property
within 500 feet of school property, . . . intentionally disrupts
the conduct of classes or other school activities.” TEX. EDUC. CODE
ANN. § 37.124(a) (West 1996). Disrupting “the conduct of classes
or other school activities” includes in relevant part: “enticing or
attempting to entice a student away from a class or other school
activity that the student is required to attend” and/or “preventing
or attempting to prevent a student from attending a class or other
school activity that the student is required to attend.” TEX. EDUC.
CODE ANN. § 37.124(c)(1)(B)-(C) (West 1996).
7
Gabriel alleges that he left under threat of arrest.
4
Gabriel, nor did he issue Gabriel a citation.8
As a result of the September 3rd incident, Gabriel sued the
City of Plano (the ”City”) and Officers Leitz, Hunt, and Pauley, in
their official capacities, under 42 U.S.C. § 1983. Gabriel asserted
six theories of recovery: (i) City custom and policy abridged his
First Amendment right to free speech; (ii) City custom and policy
abridged his right to free exercise of religion; (iii) unreasonable
use of force; (iv) section 37.124 was void for vagueness as applied
to Gabriel; (v) section 37.124 as applied by the PPD to Gabriel was
unconstitutionally overbroad; and (vi) the City has selectively
enforced section 37.124 in violation of the equal protection clause
of the Fourteenth Amendment. Gabriel sought equitable remedies
under section 1983: a declaratory judgment that his speech and
activities around Clark High were constitutionally protected and a
permanent injunction prohibiting the defendants from enforcing
section 37.124. The district court ruled for the Defendants on all
counts. Gabriel appealed, challenging a number of the district
court's findings of fact and conclusions of law9 as well as six of
8
According to Appellees, Gabriel has returned to Clark High
several times since September 3, and engaged in peaceful, non-
disruptive protests for which he has not been arrested or asked to
leave. Gabriel indicates that he has never returned to protest in
the public right of way in front of Clark High. Both parties agree
that a number of peaceful anti-abortion protests have taken place
at Clark High and other public high schools in Plano since
September 3.
9
Gabriel did not appeal the district court's unfavorable
rulings on his unreasonable force, free exercise, and vagueness
claims. Accordingly, these issues are not properly before this
5
the court's evidentiary rulings.
STANDARDS OF REVIEW
We review a denial of declaratory or injunctive relief for
abuse of discretion. See In re Schimmelpenninck, 183 F.3d 347, 353
(5th Cir. 1999). In reviewing judgments on the merits in non-jury
civil cases, we review conclusions of law de novo and conclusions
of fact for clear error. See North Alamo Water v. City of San
Juan, 90 F.3d 910, 915 (5th Cir. 1996).
We review evidentiary rulings for abuse of discretion.
Johnson v. Ford Motor, Co., 988 F.2d 573, 578 (5th Cir. 1993). “A
trial judge sitting without a jury is entitled to greater latitude
in the admission or exclusion of evidence.” Southern Pacific
Trans. Co. v. Chabert, 973 F.2d 441, 448 (5th Cir. 1992). We
reverse judgments for improper evidentiary rulings only “where the
challenged ruling affects a substantial right of a party.”
Johnson, 988 F.2d at 578. “The burden of proving substantial
prejudice lies with the party asserting error.” McDonald v.
Steward, 132 F.3d 225, 232 (5th Cir. 1998).
DISCUSSION
In order to recover under section 1983, Gabriel must prove
that his constitutional rights were violated as a result of a
custom or policy of the City. See Monell v. New York City Dep't of
Soc. Servs., 436 U.S. 658, 694 (1978). Gabriel insists that the
court.
6
City's failure to train its police officers in the Texas Education
Code, property boundaries of Clark High, and First Amendment rights
of access to public fora resulted from a policy or custom of the
City.
Section 1983 liability for failure to train police officers
arises only when “the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come
into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).
In other words, Gabriel's burden is three-fold; he must prove that:
(1) his rights were violated as a result of (2) a municipal custom
or policy of (3) deliberate indifference to his rights.
In failure to train cases, the plaintiff can prove the
existence of a municipal custom or policy of deliberate
indifference to individuals' rights in two ways. First, he can
show that a municipality deliberately or consciously chose not to
train its officers despite being on notice that its current
training regimen had failed to prevent tortious conduct by its
officers. See Board of County Comm'rs of Bryan County v. Brown,
520 U.S. 397, 405 (1997). Second, under the “single incident
exception” a single violation of federal rights may be sufficient
to prove deliberate indifference. See Bryan County, 520 U.S. at
409. The single incident exception requires proof of the
possibility of recurring situations that present an obvious
potential for violation of constitutional rights and the need for
additional or different police training. See id. We have
7
consistently rejected application of the single incident exception
and have noted that “proof of a single violent incident ordinarily
is insufficient to hold a municipality liable for inadequate
training.” Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir.
1998); see also, Rodriguez v. Avita, 871 F.2d 552, 554-55 (5th Cir.
1989).
Appellant argues that the trial court erred in failing to
consider the single-incident exception. Gabriel bases his argument
on a statement from the bench that it would “let [Gabriel] save
that [single incident] argument for the Fifth Circuit Court of
Appeals. And then if need be, for the Supreme Court of the United
States.” What Appellant fails to cite is the trial court's next
statement, which explained that the court rejected the single
incident argument because it was “not persuaded by it.” Contrary
to the Appellant's assertion, the district court did not ignore his
single incident exception argument; but rather, simply found it
unpersuasive. Moreover, judging from the trial court's extensive
reliance on Canton and Bryan County in its conclusions of law, we
are convinced that the trial court gave the Appellant's argument
due consideration.
Turning to the merits of Appellant's failure to train claim,
we find no error in the trial court's conclusions that Gabriel did
not meet his burden of proving a municipal policy or practice of
infringement of federal rights. Moreover, we do not find any abuse
of discretion rising to the level of substantial prejudice in the
8
trial court's contested evidentiary rulings. Accordingly, we
AFFIRM the trial court's judgment in favor of Defendants-Appellees.
9