Case 1:11-cv-00993-LY Document 1 Filed 11/21/11 Page 1 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

RODOLFO SANCHEZ and KRISTOPHER SLEEMAN, §
Plaintiffs, §

v.

§

ART ACEVEDO, MICHAEL

MCDONALD, MARC OTT, LEE

LEFFINGWELL, MIKE MARTINEZ,

KATHY TOVO, LAURA MORRISON,

SHERYL COLE, BILL SPELMAN,

and CHRIS RILEY,

§

all in their official capacities, §

and

the CITY OF AUSTIN, Defendants.

§
§ Civil Action No. ________
§ § § § § §
§ § § § §

COMPLAINT

Plaintiffs Rodolfo Sanchez and Kristoph er Sleeman file this suit pursuant to

42 U.S.C. §1983 against the City of Austin, Texas and several of its officials t o

force the Defendant s to ceas e their unlawful prior restraint of Plaintiffs’ protected

speech as participants in the Occupy Aus tin protests at Austin’s City Hall and

prevent prospective application of th e city’s policy respecting issuance of

“Criminal Trespass Notices” excluding a reci pient from any or all city property for

a set durat ion. By policy and practice, th e Defendants have unlawfully restricted,

and will continue to restrict, the Firs t Amend ment and due process rights of

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Plaintiffs, other Occupy Austin proteste rs, and all citizens of Austin who m ay

desire to use city-owned property as a forum for free expression or to petition their

government for redress of grievances. These constitutional defects give rise to both

facial and as-applied constitutional challenges to the polic ies, their implementation

by Defendants, and their application to Plaintiffs and others.

PARTIES 1.01 Plaintiff Rodolfo “Rudy” Sanchez is a resident of Westlake Hills, Texas who

regularly attended and participated in the Occupy Austin protests on the City

Hall plaza unti l he was banned from returning unde r threat of arrest by

unidentified City officials through t heir issuance to Mr. Sanchez of a

“Criminal Trespass Notice.” Mr. Sanch ez desires to return to t he Occupy

Austin protest site on City Hall plaza to resume ex

ercising his First

Amendment rights of free expressi on, assem bly, an d petitioning his

government for redress of grievances, but he cannot do so without riski ng

arrest for criminal trespass.

1.02 Plaintiff Kristopher “Kris” Sleeman is a resident of Austi n, Texas who

regularly attended and participated in the Occupy Austin protests on the City

Hall plaza unti l he was banned from returning unde r threat of arrest by

unidentified City official s through thei r issuance to Mr. Sleeman of a

“Criminal Trespass Notice.” Mr. Sleem an desires to return to the Occupy

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Austin protest site on City Hall plaza to resume ex

ercising his First

Amendment rights of free expressi on, assem bly, an d petitioning his

government for redress of grievances, but he cannot do so without riski ng

arrest for criminal trespass.

1.03 Defendant Leffingwell currently serves, and at all tim es relevant to this

action has served, as the Mayor of the City of Austin.

1.04 Defendant Ott currently serves, and at all tim es relevant to this action ha s

served, as the City Manager of the City of Austin.

1.05 Defendant McDonald currently serves, and at all times relevant to this action

has served, as an Assistant City Ma nager of the City of Austin with

responsibility for public safety se rvices, including the Austin Police

Department (APD).

1.06 Defendant Acevedo currently serves, and at all tim es relevant to this action

has served, as Chief of the Austin Police Department.

1.07 Defendants Martinez, Tovo, Morrison, Cole, Spelman, and Riley currentl y

serve, and at all times rele vant to this action have served, as members of the

City Council of the City of Austin.

1.08 Defendant City of Austin is a m unicipal corporation withi n the State of

Texas.

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JURISDICTION

2.01 This Court has jurisdiction over this dispute pursuant to 28 U.S.C. §1331.

VENUE

3.01 Venue is proper before this Court because the acts of Defendants here

complained of all t ook place in Aus tin, Texas, and Austin, Texas is the

primary place where Defendants’ business is conducted.

STATEMENT OF FACTS

A. Austin City Hall

4.01 Austin’s City Hall is “a unique

landmark gateway to Austin City

government”1 that was “designed to prom ote public participation and

interaction with local government.” 2 The City Hall building and pla za,

which opened in 2004, “serve as a ga thering place for public discourse and community collaboration.” 3 As the city’s website acknowledges, the “City

Hall building belongs to our citizenry and the entire design is intended to

embrace the spirit and identity of Aus tin and reinforce the mutual r espect between the [City] Council and the citizens of Austin.”4

4.02 Fostering engagement of the public with Austin city government at City Hall

was thus a key design concept of the City Hall red evelopment project from

1 City of Austin, Austin City Hall—About City Hall, http://www.ci.austin.tx.us/cityhall/about.htm. 2 City of Austin, Austin City Hall—Arts & Culture, http://www.ci.austin.tx.us/cityhall/arts.htm. 3 City of Austin, Austin City Hall—About City Hall, http://www.ci.austin.tx.us/cityhall/about.htm. 4 City of Austin, Austin City Hall—Building Concept, http://www.ci.austin.tx.us/cityhall/concept.htm.
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its very i nception. Indeed, am ong the goals agreed and adopted by the Austin community, City Council, and ci ty staff to guide the redevelopment project were “[p] romot[ing] interacti on, publ ic participation and dialogue” and, specifically, “[d]esign[ing] a pla za that attracts people and prom otes activities throughout the day and evening.”5 4.03 The City Hall plaza that resulted from these efforts “is a focal point for everyone” both i n city government and in the Austin community, and the plaza serv es “as a gathering place for a ll of its citizens and is the public’s ‘living room’ on a grand scale.”6 By design, the “outdoor spaces on the plaza are ideal for free expression a nd can accomm odate large gatherings without interrupting the process inside.”7 But the interior spaces of City Hall are very deliberately not isolated from the plaza—both the Board and Commission Room and the Council Cham bers “visually extend i nto the pla za with large windows as a rem inder to those inside and out side of the balance of government and ci tizens com ing together for the comm on pursuit of exchanging ideas and shapi ng policy.”8 The plaza “is accessible 365 days a year,” 9 and the city’s policy regarding public use of t he pl aza and other
5 Id. 6 City of Austin, Austin City Hall—Building Features—Plaza, http://www.ci.austin.tx.us/cityhall/plaza.htm. 7 City of Austin, Austin City Hall—Building Concept, http://www.ci.austin.tx.us/cityhall/concept.htm. 8 Id. 9 City of Austin, Austin City Hall—Building Features—Plaza, http://www.ci.austin.tx.us/cityhall/plaza.htm.
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areas of City Hall expressly designate s the plaza, i ncluding the mezzanine and amphitheater areas, as a “free speech venue.”10 B. The Occupy Austin Protest And Plaintiffs’ Participation 4.04 Since October 6, 2011, the City Hall pl aza has been the main site of the largest continuous political protest in Austin in a generation—Occupy Austin. Occupy Austin is a protest movement focused on dem ocracy, economic security, corporate responsib ility, and financia l fairness and comprised of local citizens “dedicated to non-violently reclaiming control of our governments from the financial in terests that have corrupted the m.”11 The mission of Occupy Austi n and its par ticipants “is to assert our ri ghtful place within the political process, a nd take the reins of power away from profit-driven interests.”12 4.05 The hallmark of the Occupy m ovement, both in Austin and elsewhere, is continuous occupation of high-visibilit y locales associated with dem ocracy or corporate and financial influence as protest sit es. The protesters’ act of occupying these sites serves as a means of communicating their message that popular control over the means of democratic governance must be renewed.
10 City o f Austin , Austin City Ha ll—Guidelines for No n-City Use at 2 (M ay 12, 2009), available at http://www.ci.austin.tx.us/cityhall/downloads/cityhalluse_05-12-2009.pdf. 11 Occ upy Austin, Occupy Au stin Wi ki—Solidarity S tatement, h ttp://occupyaustin.org/wiki/doku.php?id= groups:mission_and_values:start. 12 Occupy Aust in, Guide t o Thrive at 3 (Oct. 201 1), available at h ttp://occupyaustin.org/wp-content/uploads/ 2011/10/Guide_to_Thrive.pdf.
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4.06 Plaintiff Sleeman began his pa rticipation in the Occupy Aust in protest by attending organizational a nd planning meetings he ld in Republic Square Park a week before the occupation of Austin City Hall plaza. Mr. Sleeman, along with his wife and fo ur-year-old son, has atte nded the protest two t o three times per week since then, regul arly spending nights on the plaza. The message that Mr. Sl eeman has sought to convey through hi s participation in the Occupy Austin movement is that America has s acrificed its middle class and its industrial heri tage in favor of a corrupt and am oral system of crony capitalism.
4.07 Plaintiff Sanchez has likewise participat ed in the Occupy Austin prote st at City Hall since it began on October 6, 2011. To attend the protest, he has taken multiple days off of work. The message Mr. Sanchez has attem pted to convey through participation in the Oc cupy Austi n protest is his belief, grounded in his faith as a Christ ian, that recent developments in our country and our econom y—rewarding Wall Str eet greed with TARP bailouts, escalating inco me and healthcare in equality, and the predom inance of corporate m oney in political cam paigns—are imm oral and antithetical to democratic self-governance.
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C. Defendants’ Banning Of Plaintiffs From City Hall 4.08 As the occupation of City Hall plaza continued through October 2011, th e
relationship between the city and th e protesters became increasi ngly fractious. City staff im posed policies on the protesters’ use of the plaza— thrice-weekly power washings that require relocation of every porti on of the Occupy base cam p, micromanagement of which portions of the plaza could be used for what activities, and others —that appeared to the protesters to have been deliberately designed to make the expressi ve conduct of occupation intolerable, in di rect contravention of the city’s stated policy of encouraging the use of the plaza for free speech and assembly purposes. 4.09 On Friday, October 28, 2011, the Defe ndants issued a memo im posing new restrictions on the Occupy prot esters’ use of City Hall plaza. Am ong these were prohibitions against sleeping or setting up sleeping accommodations on the mezzanine area of th e pla za, exhibit ing unattended prot est signs, and operating the communal food tables organized and m aintained by t he Occupy protesters between the hours of 10:00 p.m. and 6:00 a.m. The memo was posted on a City Hall door and dist ributed to some protesters on the plaza on Saturday, October 29. 4.10 Less than 24 hours l ater, at approxim ately 12:30 a.m. on Sunday, October 30, Defen dants m oved to enforce th e n ew prohibition on nighttim e food
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service, deploying a large num ber of Au stin Polic e Department officers to take down the food t ables and seize a ny food supplies that had not been put away in com pliance with the new po licy. In an act of nonvi olent civil disobedience, some of the Occupy prot esters formed a hum an chain around the tables and were arrested. 4.11 While the chain formed, Mr . Sanchez was videotaping events from behind the food t ables. As the first arrests we re occurring, he decided he did not want to be arrested and tried to m ove away from the tab les. As he was attempting to do so, Mr. San chez was confronted by an APD officer who asked Mr. Sanchez if he wanted to be arrested and then, without giving Mr. Sanchez an effective opportunity to respond or leave th e immediate area, arrested him. Mr. Sanchez did not resist. 4.12 Seventeen other prot esters were arrested at the same ti me. Subsequently, an additional twenty protesters were arrested for refusing to vacate the plaza for an early-morning pressure washing. In total, thirty-eight Occupy protesters, including Mr. Sanchez, were arrested that night and charged with criminal trespass. Speaking to the press about the arrests later, defendant Acevedo acknowledged that “the vast m ajority of the Occupy Austin mem bers, including those who were arrested,” had been “extremely respectful” and described him self as being “very proud of the fact that folks that chose to
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challenge the rules did so in a res violence.”13

ponsible manner without resorting to

4.13 While AP D officers were putting Mr. Sa nchez into a police van after hi s

arrest, he was informed by an unidentif ied city official that he was banned

from returning to any portion of City Hall, including the plaza, for a p eriod

of two years. Mr. Sanchez was tran sported and booked int o t he Travis

County ja il, was charged with one co unt of cri minal trespass, and was

released approximat ely 16 hours later, after posting bond. While he was in

jail, he was again told by an unidentified Travis County jailer that he was not

allowed to return to City Hall for two years and that, if he did, he would

again be arrested for criminal trespass.

4.14 On information and belief, all of th e 38 Occupy protest ers arrested for

criminal trespass on the m orning of October 30 were inform ed that they had

been banned from returning to City Hall for a period of at least one year, and

numerous others among t he arrestees were told, like Mr. Sanchez, that the

duration of the ban was two years.

4.15 Mr. Sleeman was also present on th e City Hal l plaza d uring the early

morning hours of O ctober 30, videotap ing the protest and the conduct of

APD officers taking down the proteste rs’ food tables a nd making arrests.
13 See Nic k Ha djigeorge, Occupy Austin De monstrators Arrested After Law Confusion, D AILY TEXAN (Oct. 3 0, 2011), available at ht tp://www.dailytexanonline.com/news/2011/10/31/occupy-austin-demonstrators-arrested-afterlaw-confusion (quoting defendant Acevedo).

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Mr. Sleeman, who was present at the protest with his son that night, did not obstruct any officers or ot herwise refuse to co mply with the city’s policies respecting use of the plaza, and he wa s not among the 38 protesters arrested. Later that m orning, Mr. Sleeman gave an interview to a local television news crew about the events that had transpired overnight. As part of the interview, Mr. Sleeman gave his name and a description of what he had witnessed. 4.16 That evening, Mr. Sleeman spoke at the Occupy Austin general meeting held on the plaza, expressing his views that the city should permit the protesters to move their base camp to Zilker Park and that more protesters should bring wives and children to protest. At the same time as M r. Sleeman was addressing the general assembly, APD officers began surrounding the protesters. Fearing a clash between th e protesters and APD, Mr. Sleeman set about looking for his son to ensure his safety. 4.17 While he was doing so, a police officer shouted Mr. Sleeman’s name and told him to stop. Mr. Sleeman was approached by num erous police offi cers and placed under arrest. The arrest was based on an outstanding warrant stemming from his failure to pay a tra ffic ticket received for running a stop sign on hi s bicycle several years ago. Neither prior to nor at the time of his arrest was Mr. Sleeman given any notic e that his entry or presence on the
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City Hall plaza was forbidden or that he was required to depart. Mr. Sleeman did not resist arrest. 4.18 Mr. Sleeman was transported t o the Travis County jail, booked on t he open warrant, and additionally ch arged with crim inal trespass an d an ordinance violation. While he was being tran sported, he was inform ed by an unidentified city official that he was banned from returning to any portion of City Hall, including the plaza, for a peri od of one year. After being held in jail for approximately 22 hours, Mr. Sleeman was told that he had served his time on the warrant. The other charges against him were dropped, and Mr. Sleeman was released without bond. 4.19 Since their respective arrests, Mr. Sl eeman’s and Mr. Sanchez’s inability to return to City Hall plaza an d the m ain Occupy Austin protest site has severely restricted their ability to c onvey their message to Austin city officials and entirely precl udes their participation in the expressive conduct—occupation of publi c spaces—tha t lies at the core of the Occupy movement. Both Mr. Sanchez and Mr . Sleeman desire and have every intention of returning to City Hall plaz a to resume their protest activities if the ban on their presence is en ded. In addition, both Mr. Sleeman and Mr. Sanchez desire to return to City Hall during the one- and two-year dura tions of their respective bans for purpose s unrelated to Occup y Austin—for
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example, to attend City Counci l meetings and other civic events, meet with their elected representatives, and engage in the m any other governm ent– citizen interactions that take place at City Hall—but they cannot do so under the terms of their criminal trespass notices without risking future arrest. 4.20 On the morning of October 31, defe ndants Acevedo and M cDonald held a meeting at City Hall with a num ber of Occupy Austin protesters to discuss the events of the previous day. On e day later, Defenda nts rescinded the policy barring food service between the hours of 10:00 p.m . and 6:00 a .m. City of Austin, Response to Requests from Occupy Austin 3 (Nov. 1, 2011), available at http://alt.coxnewsweb.com /shared-blogs/austin/cityhall/upload/ 2011/11/city_to_occupy_austin_proteste/Notice%20of%20City%20Respons e%20to%20Occupy%20Austin%20110111%20(Final).pdf (Ex. A). However, Defendants rejected a request by prote ster representatives that individuals who had previously received notices be allowed to return to City Hall plaza to participate in Occupy Austin, stating that a forthcom ing procedure would perm it recipients of notices to request an adm inistrative review by city officials. Id. at 1. 4.21 Since October 30, Defendant s have enforced and thr eatened to enforce the criminal trespass notices issued to Occupy Austin protesters by arrest ing notice recipients who attem pt to ente r City Hall property on charges of
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criminal trespass. The evening after his release from jail, Mr. Sleeman, while

meeting with several Occupy Austin pr otesters in Margaret Hoffm an Oak

Park across Cesar Chavez St reet from City Hall, was told by an unidentified

APD officer that offi cers had been told to look out for Mr. Sleeman and to

arrest him if he attem pted to return to City Hall plaza. On inform ation and

belief, at least two other Occupy Austin protesters who had received notices

have subsequently been arrested and charged with criminal trespass when

they tried to return to City Hall pl aza and resume protesting at the m ain

Occupy Austin site.

D. Austin’s Policy Respecting Criminal Trespass Notices

4.22 On information and belief, prior to Novem ber 1, 2011, the city had no

written policy respecting issua nce by city personnel of warn ings or notice

relating to potential crim inal trespass ch arges, the area of exclusion to be

effected by issuance of such warnings or notice, or the duration of exclusion

to be effected by their issuance.

4.23 On Novem ber 1, 2011, defendant Ott, in his official capacity as City

Manager, signed and caused to be prom ulgated a city administrative bulletin

titled Criminal Tre spass Notices On City Property . City of Austin,

Administrative Bulletin 11- 04, at 1 (Nov. 1, 2011),

available at

http://www.ci.austin.tx.us/cityclerk/downloads/Administrative_Bulletin_201

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11102.pdf (Ex. B). This bulletin “e stablishes rules and procedures for issuing and reviewing a criminal trespass notice resulting from activities that occur in a City-owned or occupied building, or on public lands owned by the City.” Id. A crim inal trespass notice is a ve rbal or written statem ent that an individual must depart or m ay not enter city property, backed up by a threat of arrest on charges of criminal tr espass—effectively, a ban from some area of public property for a set amount time. See id. at 2. 4.24 The policy is prom ulgated pursuant t o the City Manager’s authority, under the City Charter, “to control and main tain the City’s public buildings and lands” and “to manage and control access by the public to City Property.” Id. at 1, 2. The official interests purporte dly served by this policy are the city’s duties (1) “to be a responsi ble stewar d of the public buildi ngs and l ands under its ownership or control, ” (2) “t o maintain these public buildings and lands in a manner that prom otes public safety and hea lth,” and (3) “to provide City-owned facilities where th e City and the public can con duct business and other approved activitie s free from unlawful and disruptive interference.” Id. at 1. 4.25 The policy defines a “Crim inal Trespa ss Notice” as an “oral or written communication to a person that entering by that person onto City Property is forbidden; or [that] the person must immediately depart from City Property.”
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Id. at 2 (capitalizati on altered). The “C ity Property” to which such a no tice applies includes “the City Hall building and surroundi ng property; any other City-owned building or portion of a non-City owned building over which the City has control; City park lands or other recreational areas; and all other City-owned lands,” excepting only such buildings or areas “exem pted from the scope of this Administrative Bulletin in a written document signed by the City Man ager.” Id. On information and belief, no such exem ptions have been made. 4.26 The policy envisions that crim inal tres pass notic es will be issued only by “Authorized Em ployees,” a category th at includes “the City Manager and any other em ployee of the City to w hom authority to issue a Crim inal Trespass Notice has been delegated.” Id. The bulletin i ncludes a nonexclusive delegation of authority to issue criminal trespass notices to:
 all assistant city managers;  the City Manager’s chief of staff;  all department directors, but l imited to buildings a nd lands within
the control or area of responsibility of their respective departments;  other m anagement personnel within a City Department [pursuant
to an express written delegation of authority by the Department Director];  building security em ployees, as designated by the appropriate Department Director in [] writing . . . ; and  park rangers, but lim ited to conduct occurring on City park property.
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Id. (capitalization altered). In addition, the City Manager is em powered to

make additional delegations of authority “to any other City employee.” Id.

4.27 Under the policy, a n authorized em ployee “ may i ssue a Crimin al Trespass

Notice to a person for conduct occu

rring on City Property t hat is

unreasonably disruptive or harm ful to C ity Property, to t he conduct of City

business, or to the conduct of approved non-City activities occurring on City

Property, including but not lim ited to conduct that violates the Austin City

Code.” Id. at 3. No further gui delines are provided to channel the discretion

of authorized employees in determ ining whether conduct warrants issuance

of a notice.

4.28 A notice “may be verbal or written” and is supposed to include “a statement

of the reason(s) the person is being noti fied not to enter an area or to depart

from an area,” a “description of the area from which the person is excluded,”

notification of t he duration of the excl usion, and inform ation describing the

administrative review process for such notices. Id. at 3-4. The statement of

reasons “need not be detailed,” but it “should”—though not must—“relate to

the grounds . . . upon which the notice is i ssued.” Id. at 4. The description of

the area o f exclusion must be sufficien t to allow “a reasonable person [to]

understand the specific area to which the person may not return.” Id. Th e

policy provides no guideline s whatsoev er to channel the discretion of

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authorized employees in determining whether to exclude an indivi dual from

all “City Property” or onl y a porti on th ereof and, if the latt er, from what

portion.

4.29 The policy provides that a crim inal trespass notice will be issued “for a time

period that is based on the seriousness of the conduct” on which the notice is

based. Id. The factors to be considered i nclude whether the conduct at i ssue

“involves intentional damage to City Property,” “in volves intentional injury

or offensi ve contact with any person,” or “was intentionall y disrupti ve to

City business or an authorized non-City event” and whether “the person has

previously engaged in sim ilar conduct.” Id. Based on those factors, the

policy provides guidelines “that th e Authorized Employee may u se to

determine the appropriate duration of a Criminal Tr espass Notice.” Id. The

suggested duration guidelines provided are as follows:

Description of Conduct Suggested

Duration of Exclusion

No harm to persons or propert y, some disrupt ion to City business or other event, and no similar past conduct

0–30 days

Some harm to persons or property, no disruption of City business or othe r event, and no sim ilar past conduct

30–60 days

Some harm to persons or propert y, or som e disruption of City business or ot her event, and history of similar past conduct

30–120 days

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Significant harm to persons or property, or significant disrupt ion of City business or other event, and no similar past conduct
Significant harm to persons or property, or significant disrupt ion of City business or other event, and history of similar past conduct
Significant harm involvi ng se rious bodi ly inj ury or the threat of serious bodily injury to a person or to property, and threat of similar future conduct

90–180 days 90 days–1 year 1 year–permanent

Id. The policy provides no further guide lines to channel the discretion of

authorized em ployees in determ ining an appropriate duration withi n the

specified guideline ranges or in det ermining in which situations not

following the duration guidelines would be appropriate. 4.30 Under normal circu mstances, a cri minal trespass notice m ay be issued onl y
after an individual has receiv ed prio r warning “that their conduct is in violation of law or a City polic y” and been given “a reasonable opportunity to cease t he violation.” Id. at 3. If the individual “promptly ceases the conduct at issue,” the policy di ctates that no crim inal trespass notice should be issued. Id. However, the requirement of pr ior warning and opport unity to cease may be dispensed with under the policy if the individual’s conduct is both unreasonably disruptive or harmful and is either an offense under Texas

law, has caused “injury to any person or damage to any property, ” or

“threatens to cause an imminent breach of the peace.” Id.

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4.31 The policy further provi des for adm inistrative review of crim inal trespass notices by means of an informal heari ng before t he director of t he relevant city department, with an a ppeal to the City Manager. Id. at 4- 5. The iss ues for decision in the administrative revi ew are wheth er the notice was issued for an appropriate reason and whether the area and duration of the notice are appropriate under t he circum stances. Id. at 5. A request for adm inistrative review does not stay or suspend the effect of the notice. Id. at 4. The policy provides that the procedures for adm inistrative review “will be available to any person who has received a Cri minal Trespas s Notice . . . during the ninety days prior to the effective d ate” of the ad ministrative bulletin promulgating the policy. Id. at 5. CAUSES OF ACTION
A. Count I – Violation of First Amendment Rights (42 U.S.C. §1983) 5.01 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs
against Defendants. Under color of st ate law and through a municipal policy or custom , Defendants have deprived an d continue to deprive Plaintiffs of their rights to freedom of expression, including through e xpressive conduct, to peaceably assemble, and to freely petition for redress of grievances under the First Amendment.
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5.02 The city’s policy of banning individuals from City Hall is a prior restraint on the exerci se of each of these rights, and its application and threatened application to Plaint iffs and ot her indi viduals exercising such ri ghts on the City Hall plaza, a tr aditional public foru m, is not narrowly tailored to serve any signi ficant governmental intere st and fail s to leave open am ple alternative channels of communicating Plaintiffs’ messages.
5.03 Moreover, Defendants’ invocation of the city’s policy to enforce a ban of Plaintiffs and other individual s partic ipating i n the Occupy Austin protest from City Hall dem onstrates that the pol icy is not content-neutral; rather, in application, the policy permits and encourages official discrimination among speakers based on the content of thei r speech and does so without being narrowly tailored to advance a com pelling governmental interest. Further, to the extent that Defendants assert th e policy is in fact ap plied only to instances of particular types of cond uct not facially enumerated in the policy, such assertion is m erely pret ext for cont ent discri mination against Plaintiffs and the Occupy Austin protest.
5.04 Additionally, Defendants’ pol icy respecting issuance of “Cri minal Trespass Notices” at City Hall is unconstitutiona lly overbroad and vague, delegating to a wide range of city em ployees effectively unrestrained discreti onary authority to ban any individual from any or all city propert y for substantial
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periods, e ven permanently, merely becau se that individual’s conduct is subjectively viewed by a cit y empl oyee as “unreasonably disruptive or harmful.” Ex. B at 3. As Plaintiffs’ experiences s how, the city’s crimin al trespass notice poli cy sweeps within it an unreasonably broad range of protected First Amend ment activity that, despite enjoying heightened protection under federal law, could nonet heless be subjectively viewed as “unreasonably disruptive or harm ful” by city em ployees lacking any further guidance on im plementation of the polic y. Further, the threat of being banned from City Hall imposes a significant chilling effect on any individual who wishes to ex ercise his Fi rst Am endment rights of free expression and assembly but reasonably fears signifi cant interference with his ability to access and interface with city governm ent should he run afoul of the vague prohibitions of the city’s policy, as interpreted by city em ployees delegated an immense degree of discretion. The unconstit utional overbreadth and vagueness of the city’s policy, coupl ed with its chilling effect on First Amendment rights, renders the policy facially unconstitutional and invalid in all applications. B. Count II – Official Retaliation in Violation of First Am endment Rights (42 U.S.C. §1983) 5.05 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs against Defendants. Defendants’ acti ons to ban Plaintiffs and other
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individuals participating in t he Oc cupy Austin protest from City Hall constitute unlawful official retaliation against those individuals for their exercise o f their First Amen dment rights to fre e expression, peaceable assembly, and petitioning for the redre ss of grievances. Th ose retaliatory actions include, but are not limited to: (1) issuing criminal trespass notices to Occupy Austin prot esters arrested at City Hall in contravention of t he unwritten policy respecting such notices in force prior to November 1, 2011; (2) imposing and threatening enforcement, through criminal trespass notices, of blanket one- and two-year bans on Occupy Austin protesters entering onto City Hall propert y i n cont ravention of t he duratio nal guidel ines provi ded under the city’s pol icy respecting issuance of such notices; and (3) appl ying its policy respecting issuance of crim inal trespass notices only to Occupy Austin protesters at City Hall. C. Count II – Violation of Due Process (42 U.S.C. §1983) 5.06 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs against Defendants. Under color of st ate law and through a municipal policy or custom , Defendants have deprived an d continue to deprive Plaintiffs of their right to substantive due pro cess of law under t he Fourteenth Amendment.
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5.07 Plaintiffs possess a fundamental liber ty interest, protected by the Due Process Clause, in entering and remain ing in City Hall and on its plaza for the purposes of expressing protected speech or engaging in any of th e myriad governmental-individual interactions that regularly take place at City Hall. Plaintiffs likewise possess a fund amental liberty interest, protected by the Due Process Clause, in loitering in public places, like the City Hall plaza, for innocent purposes. Defendants’ policy of banning individuals from City Hall unconstitutionally infringes those protected fundamental liberty interests because it burdens t hose inte rests but i s not narrowly tailored to advance a compelling governmental interest.
D. Count III – Declaratory Relief 5.08 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs
against Defendants. Defenda nts have deprived Plaintiffs of their federal constitutional rights to freedom of e xpression and due process of law, to peaceably assem ble, and to petition their government for redress of grievances, causing irreparable harm to Plainti ffs. Through conti nued enforcement of the city’s policy resp ecting issuance of “Crimin al Tr espass Notices,” Defendants threaten further violations of those same rights. Plaintiffs are thus entitled to a decl aration pursuant to 28 U.S.C. §2201 that their rights arising under the Constitu tion have been violated by the actions
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of the Defendants and that the city’s policy is facially unconstitutional and as applied to the activities of Plaintiffs. E. Count IV – Injunctive Relief 5.09 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs against Defendants. Plaintiffs continue to be deprived of their federal constitutional rights under the First Am endment and the Due Process Clause of the Fourteenth Amendment, ca using the m irreparable harm and threatening additional, immediatel y im pending irreparable injuries. Defendants continue to m aintain thei r policy of preventing Plainti ffs and other participants in the Occup y Austin protest from returning to City Hall through enforcemen t and issuance of “Criminal Trespass Notices” in violation of 42 U.S.C. §1983. Plaintiffs are thus entitled to an injunction preventing Defendants and their agents, employees, and any other persons or entities acting on their behalf, from further enforcement of (1) the “Crim inal Trespass Notices” issued to them and other Occupy Austin protesters at City Hall and (2) the city policy respecting issuance of such notices. 5.10 Plaintiffs continue to be deprived of their federal constitutional rights under the First Amendment as a result of De fendants’ acts in retaliation against Plaintiffs’ exercise of their constitu tional rights, causing them irreparable harm. Defendants’ past practice of re taliation in violation of 42 U. S.C.
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§1983 provides Plaintiffs with a r easonable basis to fear additional retaliatory acts by Defendants based on Plai ntiffs’ planned future exercise of their constitutional rights as part of the Occupy Austin protest. Plaintiffs are thus entitled to an injunction pr eventing Defendants and their agents, employees, and any other persons or entities acting on their behalf, from engaging in any retaliatory acts against Pl aintiffs or other participants in the Occupy Austin prot ests based (1) on such indivi duals’ past, present, or future exercise of ri ghts protected unde r the Fi rst Amendment, or (2) based on the fi ling or prosecution of this or an y other suit seeking to enforce such individuals’ rights.
ATTORNEY’S FEES AND COSTS 6.01 It was necessary for Plaintiffs t o hire t he undersigned attorneys to file t his
lawsuit. Plaintiffs seek the recovery of attorney’s fees incurred in the pursuit of this action pursuant to 42 U .S.C. §1988(b) and expert fees pursuant t o 42 U.S.C. §1988(c). 6.02 Plaintiffs also seek recovery of their expenses and costs of court pursuant to 28 U.S.C. §1920.
DAMAGES 7.01 As a direct and proxim ate result of t he Defendants’ conduct, Plaintiffs
suffered damages for the denial of due process of law and of the First
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Amendment rights of free expression, peaceable a ssembly, and petitioning
for the redress of grievances.
JURY DEMAND
8.01 Plaintiffs demand a trial by jury.
PRAYER
9.01 Plaintiffs ask for judgment against Defendants for the following:
a. A declar ation that Defendant s’ policy of banning indivi duals from City Hall through use of “Crim inal Trespass Notices” violates the First and Fourteenth Amendments to the United States Constitution,
b. Injunctive relief barring Defe ndants from banning individuals from City Hall and enjoining im plementation of the city’s pol icy regarding issuance of “Criminal Trespass Notices” at City Hall,
c. Injunctive relief ba rring Defendants from engaging in any retaliatory acts against Plaintiffs or ot her participants in t he Occupy Austin protests based on such individuals’ past, present, or future exercise of rights protected under the First Amendment,
d. Injunctive relief ba rring Defendants from engaging in any retaliatory acts against Plaintiffs or ot her participants in t he Occupy Austin protests based on the filing or prosecution of this or any other suit seeking to enforce such individuals’ rights,
e. Such damages for denial of due process of law and of the First Amendment rights of free expre ssion, peaceable assembly, an d petitioning for the redress of gr ievances, as the Court finds appropriate,
f. Pre-judgment and post-judgment interest,
g. Reasonable attorney’s fees,
h. Costs of suit, and
i. Any and all other relief the Court deems appropriate.
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Respectfully

submitted,

Ryan rbates@yettercoleman.com Edward edawson@yettercolem Anna arotman@yettercoleman.com
Jam jch@mail.utexas.edu Brian brian@texascivilrightsproject.org

P. Bates State Bar No. 24055152
C. Dawson State Bar No. 24031999
an.com G. Rotman State Bar No. 24046761
YETTER COLEMAN LLP 221 West Sixth Street, Suite 750 Austin, Texas 78701 (512) 533-0150 [Tel.] (512) 533-0120 [Fax]
es C. Harrington State Bar No. 09048500
McGiverin State Bar No. 24067760
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, Texas 78741 (512) 474-5073 [Tel.] (512) 474-0726 [Fax]
ATTORNEYS FOR PLAINTIFFS

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Exhibit A

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Exhibit B

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 Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

RODOLFO SANCHEZ and KRISTOPHER SLEEMAN, §
Plaintiffs, §

v.

§

ART ACEVEDO, MICHAEL

MCDONALD, MARC OTT, LEE

LEFFINGWELL, MIKE MARTINEZ,

KATHY TOVO, LAURA MORRISON,

SHERYL COLE, BILL SPELMAN,

and CHRIS RILEY,

§

all in their official capacities, §

and

the CITY OF AUSTIN, Defendants.

§
§ Civil Action No. 1:11-cv-993-LY
§ § § § § §
§ § § § §

FIRST AMENDED COMPLAINT

Plaintiffs Rodolfo Sanchez and Kristoph er Sleeman file this suit pursuant to

42 U.S.C. §1983 against the City of Austin, Texas and several of its officials t o

force the Defendant s to ceas e their unlawful prior restraint of Plaintiffs’ protected

speech as participants in the Occupy Aus tin protests at Austin’s City Hall and

prevent prospective application of th e city’s policy respecting issuance of

“Criminal Trespass Notices” excluding a reci pient from any or all city property for

a set durat ion. By policy and practice, th e Defendants have unlawfully restricted,

and will continue to restrict, the Firs t Amend ment and due process rights of

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 2 of 33
Plaintiffs, other Occupy Austin proteste rs, and all citizens of Austin who m ay desire to use city-owned property as a forum for free expression or to petition their government for redress of grievances. These constitutional defects give rise to both facial and as-applied constitutional challenges to the polic ies, their implementation by Defendants, and their application to Plaintiffs and others.
PARTIES 1.01 Plaintiff Rodolfo “Rudy” Sanchez is a resident of Westlake Hills, Texas who
regularly attended and participated in the Occupy Austin protests on the City Hall plaza unti l he was banned from returning unde r threat of arrest by unidentified City officials through t heir issuance to Mr. Sanchez of a “Criminal Trespass Notice.” Mr. San chez has resumed and intends t o continue exercising his Fi rst Am endment rights of free expression, assembly, and petitioning his governm ent for redress of grievances at the Occupy Austin protest site on City Hall plaza, but although his the exclusionary effect of his ban has be en term inated, he fears he may be subjected to another ban for expressing his pol itical views or out of retaliation. 1.02 Plaintiff Kristopher “Kris” Sleeman is a resident of Austi n, Texas who regularly attended and participated in the Occupy Austin protests on the City Hall plaza unti l he was banned from returning unde r threat of arrest by
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unidentified City official s through thei r issuance to Mr. Sleeman of a “Criminal Trespass Notice.” Mr. Sl eeman has resumed and intends t o continue exercising his Fi rst Am endment rights of free expression, assembly, and petitioning his governm ent for redress of grievances at the Occupy Austin protest site on City Hall plaza, but although his the exclusionary effect of his ban has be en term inated, he fears he may be subjected to another ban for expressing his pol itical views or out of retaliation. 1.03 Defendant Leffingwell currently serves, and during the tim e relevant to this action has served, as the Mayor of the City of Austin. 1.04 Defendant Ott currently serves, and duri ng the time relevant to this action has served, as the City Manager of the City of Austin. 1.05 Defendant McDonald currentl y serves, and during the time relevant to this action has served, as an Assistant City Manager of the Cit y of Austi n with responsibility for public safety se rvices, including the Austin Police Department (APD). 1.06 Defendant Acevedo currently serves, a nd during the time relevant to this action has served, as Chief of the Austin Police Department.
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1.07 Defendants Martinez, Tovo, Morrison, Cole, Spelman, and Riley currentl y

serve, and during the time relevant to this action have served, as members of

the City Council of the City of Austin.

1.08 Defendant City of Austin is a m unicipal corporation withi n the State of

Texas.

JURISDICTION 2.01 This Court has jurisdiction over this dispute pursuant to 28 U.S.C. §1331.

VENUE 3.01 Venue is proper before this Court because the acts of Defendants here

complained of all t ook place in Aus tin, Texas, and Austin, Texas is the

primary place where Defendants’ business is conducted.

A. Austin City Hall

STATEMENT OF FACTS

4.01 Austin’s City Hall is “a unique

landmark gateway to Austin City

government”1 that was “designed to prom ote public participation and

interaction with local government.” 2 The City Hall building and pla za,

which opened in 2004, “serve as a ga thering place for public discourse and community collaboration.” 3 As the city’s website acknowledges, the “City

Hall building belongs to our citizenry and the entire design is intended to
1 City of Austin, Austin City Hall—About City Hall, http://www.ci.austin.tx.us/cityhall/about.htm. 2 City of Austin, Austin City Hall—Arts & Culture, http://www.ci.austin.tx.us/cityhall/arts.htm. 3 City of Austin, Austin City Hall—About City Hall, http://www.ci.austin.tx.us/cityhall/about.htm.

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embrace the spirit and identity of Aus tin and reinforce the mutual r espect between the [City] Council and the citizens of Austin.”4 4.02 Fostering engagement of the public with Austin city government at City Hall was thus a key design concept of the City Hall red evelopment project from its very i nception. Indeed, am ong the goals agreed and adopted by the Austin community, City Council, and ci ty staff to guide the redevelopment project were “[p] romot[ing] interacti on, publ ic participation and dialogue” and, specifically, “[d]esign[ing] a pla za that attracts people and prom otes activities throughout the day and evening.”5 4.03 The City Hall plaza that resulted from these efforts “is a focal point for everyone” both i n city government and in the Austin community, and the plaza serv es “as a gathering place for a ll of its citizens and is the public’s ‘living room’ on a grand scale.”6 By design, the “outdoor spaces on the plaza are ideal for free expression a nd can accomm odate large gatherings without interrupting the process inside.”7 But the interior spaces of City Hall are very deliberately not isolated from the plaza—both the Board and Commission Room and the Council Cham bers “visually extend i nto the pla za with large windows as a rem inder to those inside and out side of the balance of
4 City of Austin, Austin City Hall—Building Concept, http://www.ci.austin.tx.us/cityhall/concept.htm. 5 Id. 6 City of Austin, Austin City Hall—Building Features—Plaza, http://www.ci.austin.tx.us/cityhall/plaza.htm. 7 City of Austin, Austin City Hall—Building Concept, http://www.ci.austin.tx.us/cityhall/concept.htm.
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government and ci tizens com ing together for the comm on pursuit of exchanging ideas and shapi ng policy.”8 The plaza “is accessible 365 days a year,” 9 and the city’s policy regarding public use of t he pl aza and other areas of City Hall expressly designate s the plaza, i ncluding the mezzanine and amphitheater areas, as a “free speech venue.”10 B. The Occupy Austin Protest And Plaintiffs’ Participation 4.04 Since October 6, 2011, the City Hall pl aza has been the main site of the largest continuous political protest in Austin in a generation—Occupy Austin. Occupy Austin is a protest movement focused on dem ocracy, economic security, corporate responsib ility, and financia l fairness and comprised of local citizens “dedicated to non-violently reclaiming control of our governments from the financial in terests that have corrupted the m.”11 The mission of Occupy Austi n and its par ticipants “is to assert our ri ghtful place within the political process, a nd take the reins of power away from profit-driven interests.”12 4.05 The hallmark of the Occupy m ovement, both in Austin and elsewhere, is continuous occupation of high-visibilit y locales associated with dem ocracy
8 Id. 9 City of Austin, Austin City Hall—Building Features—Plaza, http://www.ci.austin.tx.us/cityhall/plaza.htm. 10 City o f Austin , Austin City Ha ll—Guidelines for No n-City Use at 2 (M ay 12, 2009), available at http://www.ci.austin.tx.us/cityhall/downloads/cityhalluse_05-12-2009.pdf. 11 Occ upy Austin, Occupy Au stin Wi ki—Solidarity S tatement, h ttp://occupyaustin.org/wiki/doku.php?id= groups:mission_and_values:start. 12 Occupy Aust in, Guide t o Thrive at 3 (Oct. 201 1), available at h ttp://occupyaustin.org/wp-content/uploads/ 2011/10/Guide_to_Thrive.pdf.
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or corporate and financial influence as protest sit es. The protesters’ act of occupying these sites serves as a means of communicating their message that popular control over the means of democratic governance must be renewed. 4.06 Plaintiff Sleeman began his pa rticipation in the Occupy Aust in protest by attending organizational a nd planning meetings he ld in Republic Square Park a week before the occupation of Austin City Hall plaza. Mr. Sleeman, along with his wife and fo ur-year-old son, has atte nded the protest two t o three times per week since then, regul arly spending nights on the plaza. The message that Mr. Sl eeman has sought to convey through hi s participation in the Occupy Austin movement is that America has s acrificed its middle class and its industrial heri tage in favor of a corrupt and am oral system of crony capitalism. 4.07 Plaintiff Sanchez has likewise participat ed in the Occupy Austin prote st at City Hall since it began on October 6, 2011. To attend the protest, he has taken multiple days off of work. The message Mr. Sanchez has attem pted to convey through participation in the Oc cupy Austi n protest is his belief, grounded in his faith as a Christ ian, that recent developments in our country and our econom y—rewarding Wall Str eet greed with TARP bailouts, escalating inco me and healthcare in equality, and the predom inance of
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corporate m oney in political cam paigns—are imm oral and antithetical to democratic self-governance. C. Defendants’ Banning Of Plaintiffs From City Hall 4.08 As the occupation of City Hall plaza continued through October 2011, th e relationship between the city and th e protesters became increasi ngly fractious. City staff im posed policies on the protesters’ use of the plaza— thrice-weekly power washings that require relocation of every porti on of the Occupy base cam p, micromanagement of which portions of the plaza could be used for what activities, and others —that appeared to the protesters to have been deliberately designed to make the expressi ve conduct of occupation intolerable, in di rect contravention of the city’s stated policy of encouraging the use of the plaza for free speech and assembly purposes. 4.09 On Friday, October 28, 2011, the Defe ndants issued a memo im posing new restrictions on the Occupy prot esters’ use of City Hall plaza. Am ong these were prohibitions against sleeping or setting up sleeping accommodations on the mezzanine area of th e pla za, exhibit ing unattended prot est signs, and operating the communal food tables organized and m aintained by t he Occupy protesters between the hours of 10:00 p.m. and 6:00 a.m. The memo was posted on a City Hall door and dist ributed to some protesters on the plaza on Saturday, October 29.
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4.10 Less than 24 hours l ater, at approxim ately 12:30 a.m. on Sunday, October 30, Defen dants m oved to enforce th e n ew prohibition on nighttim e food service, deploying a large num ber of Au stin Polic e Department officers to take down the food t ables and seize a ny food supplies that had not been put away in com pliance with the new po licy. In an act of nonvi olent civil disobedience, some of the Occupy prot esters formed a hum an chain around the tables and were arrested.
4.11 While the chain formed, Mr . Sanchez was videotaping events from behind the food t ables. As the first arrests we re occurring, he decided he did not want to be arrested and tried to m ove away from the tab les. As he was attempting to do so, Mr. San chez was confronted by an APD officer who asked Mr. Sanchez if he wanted to be arrested and then, without giving Mr. Sanchez an effective opportunity to respond or leave th e immediate area, arrested him. Mr. Sanchez did not resist.
4.12 Seventeen other prot esters were arrested at the same ti me. Subsequently, an additional twenty protesters were arrested for refusing to vacate the plaza for an early-morning pressure washing. In total, thirty-eight Occupy protesters, including Mr. Sanchez, were arrested that night and charged with criminal trespass. Speaking to the press about the arrests later, defendant Acevedo acknowledged that “the vast m ajority of the Occupy Austin mem bers,
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including those who were arrested,” had been “extremely respectful” and

described him self as being “very proud of the fact that folks that chose to

challenge the rules did so in a res violence.”13

ponsible manner without resorting to

4.13 While AP D officers were putting Mr. Sa nchez into a police van after hi s

arrest, he was informed by an unidentif ied city official that he was banned

from returning to any portion of City Hall, including the plaza, for a p eriod

of two years. Mr. Sanchez was tran sported and booked int o t he Travis

County ja il, was charged with one co unt of cri minal trespass, and was

released approximat ely 16 hours later, after posting bond. While he was in

jail, he was again told by an unidentified Travis County jailer that he was not

allowed to return to City Hall for two years and that, if he did, he would

again be arrested for criminal t respass. Mr. Sanchez subsequently received a

letter from the city indicating that the duration of his ban was one year and

advising him of his right to administrative review of the ban.

4.14 On information and belief, all of th e 38 Occupy protest ers arrested for

criminal trespass on the m orning of October 30 were inform ed that they had

been banned from returning to City Hall for a period of at least one year, and

13 See Nic k Ha djigeorge, Occupy Austin De monstrators Arrested After Law Confusion, D AILY TEXAN (Oct. 3 0, 2011), available at ht tp://www.dailytexanonline.com/news/2011/10/31/occupy-austin-demonstrators-arrested-afterlaw-confusion (quoting defendant Acevedo).
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numerous others among t he arrestees were told, like Mr. Sanchez, that the duration of the ban was two years. 4.15 Mr. Sleeman was also present on th e City Hal l plaza d uring the early morning hours of O ctober 30, videotap ing the protest and the conduct of APD officers taking down the proteste rs’ food tables a nd making arrests. Mr. Sleeman, who was present at the protest with his son that night, did not obstruct any officers or ot herwise refuse to co mply with the city’s policies respecting use of the plaza, and he wa s not among the 38 protesters arrested. Later that m orning, Mr. Sleeman gave an interview to a local television news crew about the events that had transpired overnight. As part of the interview, Mr. Sleeman gave his name and a description of what he had witnessed. 4.16 That evening, Mr. Sleeman spoke at the Occupy Austin general meeting held on the plaza, expressing his views that the city should permit the protesters to move their base camp to Zilker Park and that more protesters should bring wives and children to protest. At the same time as M r. Sleeman was addressing the general assembly, APD officers began surrounding the protesters. Fearing a clash between th e protesters and APD, Mr. Sleeman set about looking for his son to ensure his safety.
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4.17 While he was doing so, a police officer shouted Mr. Sleeman’s name and told him to stop. Mr. Sleeman was approached by num erous police offi cers and placed under arrest. The arrest was based on an outstanding warrant stemming from his failure to pay a tra ffic ticket received for running a stop sign on hi s bicycle several years ago. Neither prior to nor at the time of his arrest was Mr. Sleeman given any notic e that his entry or presence on the City Hall plaza was forbidden or that he was required to depart. Mr. Sleeman did not resist arrest.
4.18 Mr. Sleeman was transported t o the Travis County jail, booked on t he open warrant, and additionally ch arged with crim inal trespass an d an ordinance violation. While he was being tran sported, he was inform ed by an unidentified city official that he was banned from returning to any portion of City Hall, including the plaza, for a peri od of one year. After being held in jail for approximately 22 hours, Mr. Sleeman was told that he had served his time on the warrant. The other charges against him were dropped, and Mr. Sleeman was released without bond.
4.19 Following their respective arrests, Mr. Sleeman’s and Mr. Sanchez’s inability to return to City Hall plaza a nd the main Occupy Austin protest site severely restricted their ability to c onvey their political message to Austin city officials and entirely precluded th eir partic ipation in the expressive
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conduct—occupation of publi c spaces—tha t lies at the core of the Occupy

movement. Both Mr. Sanchez and Mr . Sleeman desired and intended to

continue their protest activities at C ity Hall plaza b ut for the ban on their

presence. In addit ion, both Mr. Sleem an and Mr. Sanchez de sired to return

to City Hall during the periods in which their respective bans were in ef fect

for purposes unrelated to Occupy Aus tin—for exam ple, to attend City

Council meetings and other civic ev

ents, meet with their elected

representatives, remonstrate, and e ngage in the many other government–

citizen interactions that take p lace at City Hall—but they could not do so

under the terms of their criminal trespass notices without risking arrest.

4.20 On the morning of October 31, defe ndants Acevedo and M cDonald held a

meeting at City Hall with a num ber of Occupy Austin protesters to discuss

the events of the previous day. On e day later, Defenda nts rescinded the

policy barring food service between the hours of 10:00 p.m . and 6:00 a .m.

City of Austin, Response to Requests from Occupy Austin 3 (Nov. 1, 2011),

available at http://alt.coxnewsweb.com /shared-blogs/austin/cityhall/upload/

2011/11/city_to_occupy_austin_proteste/Notice%20of%20City%20Respons

e%20to%20Occupy%20Austin%20110111%20(Final).pdf (Ex. A).

However, Defendants rejected a request by prote ster representatives that

individuals who had previously received notices be allowed to return to City

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Hall plaza to participate in Occupy Austin, stating that a forthcom ing procedure would perm it recipients of notices to request an adm inistrative review by city officials. Id. at 1. 4.21 Since October 30, Defendant s have enforced and thr eatened to enforce the criminal trespass notices issued to Occupy Austin protesters by arrest ing notice recipients who attem pt to ente r City Hall property on charges of criminal trespass. The evening after his release from jail, Mr. Sleeman, while meeting with several Occupy Austin pr otesters in Margaret Hoffm an Oak Park across Cesar Chavez St reet from City Hall, was told by an unidentified APD officer that offi cers had been told to look out for Mr. Sleeman and to arrest him if he attem pted to return to City Hall plaza. On inform ation and belief, at least two other Occupy Austin protesters who had received notices have subsequently been arrested and charged with criminal trespass when they tried to return to City Hall pl aza and resume protesting at the m ain Occupy Austin site. D. Austin’s Policy Respecting Criminal Trespass Notices 4.22 On information and belief, prior to Novem ber 1, 2011, the city had no written policy respecting issua nce by city personnel of warn ings or notice relating to potential crim inal trespass ch arges, the area of exclusion to be
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effected by issuance of such warnings or notice, or the duration of exclusion

to be effected by their issuance.

4.23 On Novem ber 1, 2011, defendant Ott, in his official capacity as City

Manager, signed and caused to be prom ulgated a city administrative bulletin

titled Criminal Tre spass Notices On City Property . City of Austin,

Administrative Bulletin 11- 04, at 1 (Nov. 1, 2011),

available at

http://www.ci.austin.tx.us/cityclerk/downloads/Administrative_Bulletin_201

11102.pdf (Ex. B). This bulletin “e stablishes rules and procedures for

issuing and reviewing a criminal trespass notice resulting from activities that

occur in a City-owned or occupied building, or on public lands owned by the

City.” Id. A crim inal trespass notice is a ve rbal or written statem ent that an

individual must depart or m ay not enter city property, backed up by a threat

of arrest on charges of criminal tr espass—effectively, a ban from some area

of public property for a set amount time. See id. at 2.

4.24 The policy is prom ulgated pursuant t o the City Manager’s authority, under

the City Charter, “to control and main tain the City’s public buildings and

lands” and “to manage and control access by the public to City Property.” Id.

at 1, 2. The official interests purporte dly served by this policy are the city’s

duties (1) “to be a responsi ble stewar d of the public buildi ngs and l ands

under its ownership or control, ” (2) “t o maintain these public buildings and

15

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 16 of 33
lands in a manner that prom otes public safety and hea lth,” and (3) “to provide City-owned facilities where th e City and the public can con duct business and other approved activitie s free from unlawful and disruptive interference.” Id. at 1. 4.25 The policy defines a “Crim inal Trespa ss Notice” as an “oral or written communication to a person that entering by that person onto City Property is forbidden; or [that] the person must immediately depart from City Property.” Id. at 2 (capitalizati on altered). The “C ity Property” to which such a no tice applies includes “the City Hall building and surroundi ng property; any other City-owned building or portion of a non-City owned building over which the City has control; City park lands or other recreational areas; and all other City-owned lands,” excepting only such buildings or areas “exem pted from the scope of this Administrative Bulletin in a written document signed by the City Man ager.” Id. On information and belief, no such exem ptions have been made. 4.26 The policy envisions that crim inal tres pass notic es will be issued only by “Authorized Em ployees,” a category th at includes “the City Manager and any other em ployee of the City to w hom authority to issue a Crim inal Trespass Notice has been delegated.” Id. The bulletin i ncludes a nonexclusive delegation of authority to issue criminal trespass notices to:
16

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 17 of 33

 all assistant city managers;  the City Manager’s chief of staff;  all department directors, but l imited to buildings a nd lands within
the control or area of responsibility of their respective departments;  other m anagement personnel within a City Department [pursuant
to an express written delegation of authority by the Department Director];  building security em ployees, as designated by the appropriate Department Director in [] writing . . . ; and  park rangers, but lim ited to conduct occurring on City park property.
Id. (capitalization altered). In addition, the City Manager is em powered to

make additional delegations of authority “to any other City employee.” Id.

4.27 Under the policy, a n authorized em ployee “ may i ssue a Crimin al Trespass

Notice to a person for conduct occu

rring on City Property t hat is

unreasonably disruptive or harm ful to C ity Property, to t he conduct of City

business, or to the conduct of approved non-City activities occurring on City

Property, including but not lim ited to conduct that violates the Austin City

Code.” Id. at 3. No further gui delines are provided to channel the discretion

of authorized employees in determ ining whether conduct warrants issuance

of a notice.

4.28 A notice “may be verbal or written” and is supposed to include “a statement

of the reason(s) the person is being noti fied not to enter an area or to depart

from an area,” a “description of the area from which the person is excluded,”

notification of t he duration of the excl usion, and inform ation describing the

17

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 18 of 33
administrative review process for such notices. Id. at 3-4. The statement of reasons “need not be detailed,” but it “should”—though not must—“relate to the grounds . . . upon which the notice is i ssued.” Id. at 4. The description of the area o f exclusion must be sufficien t to allow “a reasonable person [to] understand the specific area to which the person may not return.” Id. Th e policy provides no guideline s whatsoev er to channel the discretion of authorized employees in determining whether to exclude an indivi dual from all “City Property” or onl y a porti on th ereof and, if the latt er, from what portion. 4.29 The policy provides that a crim inal trespass notice will be issued “for a time period that is based on the seriousness of the conduct” on which the notice is based. Id. The factors to be considered i nclude whether the conduct at i ssue “involves intentional damage to City Property,” “in volves intentional injury or offensi ve contact with any person,” or “was intentionall y disrupti ve to City business or an authorized non-City event” and whether “the person has previously engaged in sim ilar conduct.” Id. Based on those factors, the policy provides guidelines “that th e Authorized Employee may u se to determine the appropriate duration of a Criminal Tr espass Notice.” Id. The suggested duration guidelines provided are as follows:
18

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 19 of 33

Description of Conduct Suggested

Duration of Exclusion

No harm to persons or propert y, some disrupt ion to City business or other event, and no similar past conduct

0–30 days

Some harm to persons or property, no disruption of City business or othe r event, and no sim ilar past conduct

30–60 days

Some harm to persons or propert y, or som e disruption of City business or ot her event, and history of similar past conduct

30–120 days

Significant harm to persons or property, or significant disrupt ion of City business or other event, and no similar past conduct

90–180 days

Significant harm to persons or property, or significant disrupt ion of City business or other event, and history of similar past conduct

90 days–1 year

Significant harm involvi ng se rious bodi ly inj ury or the threat of serious bodily injury to a person or to property, and threat of similar future conduct

1 year–permanent

Id. The policy provides no further guide lines to channel the discretion of authorized em ployees in determ ining an appropriate duration withi n the specified guideline ranges or in det ermining in which situations not

following the duration guidelines would be appropriate.

4.30 Under normal circu mstances, a cri minal trespass notice m ay be issued onl y

after an individual has receiv ed prio r warning “that their conduct is in

violation of law or a City polic y” and been given “a reasonable opportunity

to cease t he violation.” Id. at 3. If the individual “promptly ceases the

19

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 20 of 33
conduct at issue,” the policy di ctates that no crim inal trespass notice should be issued. Id. However, the requirement of pr ior warning and opport unity to cease may be dispensed with under the policy if the individual’s conduct is both unreasonably disruptive or harmful and is either an offense under Texas law, has caused “injury to any person or damage to any property, ” or “threatens to cause an imminent breach of the peace.” Id. 4.31 The policy further provi des for adm inistrative review of crim inal trespass notices by means of an informal heari ng before t he director of t he relevant city department, with an a ppeal to the City Manager. Id. at 4- 5. The iss ues for decision in the administrative revi ew are wheth er the notice was issued for an appropriate reason and whether the area and duration of the notice are appropriate under t he circum stances. Id. at 5. A request for adm inistrative review does not stay or suspend the effect of the notice. Id. at 4. The policy provides that the procedures for adm inistrative review “will be available to any person who has received a Cri minal Trespas s Notice . . . during the ninety days prior to the effective d ate” of the ad ministrative bulletin promulgating the policy. Id. at 5. E. Subsequent Developments 4.32 Before filing t his suit, bot h M r. Slee man and Mr. Sanchez invoked t heir right t o administrative review of thei r respective bans. At the time the suit
20

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 21 of 33
was filed, neither Mr. Sleeman nor Mr . Sanchez had been contacted by any city official regarding their invocation of that right or th e scheduling of any administrative review proceeding. 4.33 In response to the filing of t his suit and Plaintiffs’ request for a tem porary restraining order enjoining enforcement of their respective bans, Defen dants agreed, as a means of a voiding the need for a hearing on t he request for immediate, tem porary injunctive relief, to request that the city official responsible for the adm inistrative revi ew process, Mr. Eric Stockton, hold expedited hearings on Plaintiffs’ pri or requests for review and provide an immediate review of the documentary record with respect to each of them. Dkt. No. 6. Mr. Stockton undertook that immediate review on November 22, 2011. 4.34 As a result of that immedi ate review by Mr. Stockton, Defendants agreed that, under the post hoc guida nce provided by City Adm inistrative Bulletin 11-04 with respect to criminal trespass notices issued prior to Novem ber 1, 2011, the notices i ssued to Mr. Sl eeman and Mr. Sanchez warranted modification. Id. Both notices were accordingly modified so that the pe riod during which each plaintiff was barred from entering onto City Hall property expired on Monday, Novem ber 21, 2011, the date this suit and Plaintiffs’ request for tem porary injunc tive relief were filed. Id. Defendants provided
21

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 22 of 33
Plaintiffs, through counsel, copies of Mr. Stockton’s written decision on the documentary review and advised Plain tiffs, through counsel, that expedited hearings on their review requests were scheduled for t he afternoon of Wednesday, November 23. In addition, counsel for Defendants represented that, at least as of the afternoon of November 23, all necessary steps to inform city officials responsi ble for enforcing bans from City Hall about the modifications to Mr. Sleeman’s and Mr. Sanchez’s bans had been taken. 4.35 The ad ministrative proceedings for revi ew of Plaintiffs’ respective bans scheduled for Novem ber 23, 2011 we re cancelled without any noti ce to Plaintiffs or their counsel. Mr. Slee man was accordingly deprived of the opportunity, which he had int ended to exercise, to seek to have his ban rescinded entirely as being wholly inappropriate under the terms of the city’s policy on issuing bans. 4.36 On Novem ber 26, 2011, Mr. Sleeman trie d to return to City Hall plaza to engage in protected expressive political activity as part of the Occupy Austin protest. Mr. Sleeman was told by an uni dentified city official that his ban from City Hall property had not been lifted and re mained in effect. When Mr. Sleeman inform ed the city official about t he review decision issue d by Mr. Stockton, the official said th at only one ban had been lifted and demanded that Mr. Sleeman produce th e paperwork to prove his ban had
22

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 23 of 33
been m odified. Mr. Sleeman was unabl e to produce a copy of the re view decision at that time, and Mr. Sleeman was escorted from City Hall property by city officials and again told that, if he returned to City Hall, he would be arrested for criminal trespass.
CAUSES OF ACTION A. Count I – Violation of First Amendment Rights (42 U.S.C. §1983) 5.01 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs
against Defendants. Under color of st ate law and through a municipal policy or custom , Defendants have deprived an d continue to deprive Plaintiffs of their rights to freedom of expression, including through e xpressive conduct, to peaceably assemble, and to freely petition for redress of grievances under the First Amendment. 5.02 The bans issued to protesters, includi ng Plaintiffs, and the city’s polic y of banning individuals from City Hall im pose a prior restraint on the exercise of each of these rights, and the applica tion and threatened application of the city’s policy to Plaintiffs and other indivi duals exercising such rights on the City Hall plaza, a tr aditional public foru m, is not narrowly tailored to serve any signi ficant governmental intere st and fail s to leave open am ple alternative channels of communicating Plaintiffs’ messages.
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Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 24 of 33

5.03 Moreover, Defendants’ invocation of the city’s policy to enforce a ban of

Plaintiffs and other individual s partic ipating i n the Occupy Austin protest

from City Hall demonstrates that the policy is not content-neutral. Rather, in

application, the policy permits and encourages official discrimination among

speakers based on the content of thei r speech and does so without being

narrowly tailored to advance a com pelling governmental interest. Further, to

the extent that Defendants assert th e policy is in fact ap plied only to

instances of particular types of cond uct not facially enumerated in the

policy, such assertion is m erely pret ext for cont ent discri mination against

Plaintiffs and the Occupy Austin protest.

5.04 Defendants’ exclusion of Mr. Sl eeman from City Hall property on

November 26—even after his ban was

modified to expire five days

beforehand—constitutes an separate an d additional infringement on Mr.

Sleeman’s First Amendment right to engage in protected political speech

activities in the traditional public foru m of City Hall plaza. Defend ants’

baseless exclusion of Mr. Sleeman was not content-neutral and fails every

aspect of t he strict scrutiny to which it is subject. Alternatively, ev en if this

exclusion were content-neutral, its re striction on Mr. Sleeman’s speech is

not narrowly tailored to advance any substantial government interest and

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Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 25 of 33
fails to leave open am ple alternative channels through which Mr. Sleeman could convey his intended political message. 5.05 Additionally, Defendants’ pol icy respecting issuance of “Cri minal Trespass Notices” at City Hall is unconstitutiona lly overbroad and vague, delegating to a wide range of city em ployees effectively unrestrained discreti onary authority to ban any individual from any or all city propert y for substantial periods, e ven permanently, merely becau se that individual’s conduct is subjectively viewed by a cit y empl oyee as “unreasonably disruptive or harmful.” Ex. B at 3. As Plaintiffs’ experiences s how, the city’s crimin al trespass notice poli cy sweeps within it an unreasonably broad range of protected First Amend ment activity that, despite enjoying heightened protection under federal law, could nonet heless be subjectively viewed as “unreasonably disruptive or harm ful” by city em ployees lacking any further guidance on im plementation of the polic y. Further, the threat of being banned from City Hall imposes a significant chilling effect on any individual who wishes to ex ercise his Fi rst Am endment rights of free expression and assembly but reasonably fears signifi cant interference with his ability to access and interface with city governm ent should he run afoul of the vague prohibitions of the city’s policy, as interpreted by city em ployees delegated an immense degree of discretion. The unconstit utional overbreadth and
25

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 26 of 33
vagueness of the city’s policy, coupl ed with its chilling effect on First Amendment rights, renders the policy facially unconstitutional and invalid in all applications. B. Count II – Official Retaliation in Violation of First Am endment Rights (42 U.S.C. §1983) 5.06 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs against Defendants. Defendants’ acti ons to ban Plaintiffs and other individuals participating in t he Oc cupy Austin protest from City Hall constitute unlawful official retaliation against those individuals for their exercise o f their First Amen dment rights to fre e expression, peaceable assembly, and petitioning for the redre ss of grievances. Th ose retaliatory actions include, but are not limited to: (1) issuing criminal trespass notices to Occupy Austin prot esters arrested at City Hall in contravention of t he unwritten policy respecting such notices in force prior to November 1, 2011; (2) imposing and threatening enforcement, through criminal trespass notices, of blanket one- and two-year bans on Occupy Austin protesters entering onto City Hall propert y i n cont ravention of t he duratio nal guidel ines provi ded under the city’s pol icy respecting issuance of such notices; and (3) appl ying its policy respecting issuance of crim inal trespass notices only to Occupy Austin protesters at City Hall.
26

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 27 of 33

C. Count III – Violation of Due Process (42 U.S.C. §1983)

5.07 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs

against Defendants. Under color of st ate law and through a municipal policy

or custom , Defendants have deprived an d continue to deprive Plaintiffs of

their right to due process of law under the Fourteenth Amendment.

5.08 Plaintiffs possess a fundamental liber ty interest, protected by the Due

Process Clause, in entering and remain ing in City Hall and on its plaza for

the purposes of expressing protected speech or engaging in any of th e

myriad governmental-individual interactions that regularly take place at City

Hall.

5.09 Through im plementation of the polic y perm itting issuance of bans, and

through enforcemen t of those bans to prevent Plaintiffs from returning to

City Hall, Defendants inten tionally deprived Plaintiffs of that fundamental

liberty interest without providing any adequate procedural remedy.

5.10 Defendants’ exclusion of Mr. Sl eeman from City Hall property on

November 26—even after his ban was

modified to expire five days

beforehand—constitutes an separate an d additional infringement on Mr.

Sleeman’s right to due process of la w. Defendants’ arb itrary and baseless

exclusion of Mr. Sleeman was an inten tional deprivation of his fundamental

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Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 28 of 33
liberty i nterest in exercising his First Amendment ri ghts without a ny adequate procedural remedy. D. Count IV – Declaratory Relief 5.11 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs against Defendants. Defenda nts have deprived Plaintiffs of their federal constitutional rights to freedom of e xpression and due process of law, to peaceably assem ble, and to petition their government for redress of grievances, causing irreparable harm to Plainti ffs. Through conti nued enforcement of the city’s policy resp ecting issuance of “Crimin al Tr espass Notices,” Defendants threaten further violations of those same rights. Plaintiffs are thus entitled to a decl aration pursuant to 28 U.S.C. §2201 that their rights arising under the Constitu tion have been violated by the actions of the Defendants and that the city’s policy is facially unconstitutional and as applied to the activities of Plaintiffs. E. Count V – Injunctive Relief 5.12 Plaintiffs reallege t he materi al fact s al leged in the preceding paragraphs against Defendants. Plaintiffs continue to be deprived of their federal constitutional rights under the First Am endment and the Due Process Clause of the Fourteenth Amendment, ca using the m irreparable harm and threatening additional, immediatel y im pending irreparable injuries.
28

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 29 of 33
Defendants continue to m aintain thei r policy of preventing Plainti ffs and other participants in the Occup y Austin protest from returning to City Hall through enforcemen t and issuance of “Criminal Trespass Notices” in violation of 42 U.S.C. §1983. Plaintiffs are thus entitled to an injunction preventing Defendants and their agents, employees, and any other persons or entities acting on their behalf, from further enforcement of (1) the “Crim inal Trespass Notices” issued to them and other Occupy Austin protesters at City Hall and (2) the city policy respecting issuance of such notices. 5.13 Plaintiffs continue to be deprived of their federal constitutional rights under the First Amendment as a result of De fendants’ acts in retaliation against Plaintiffs’ exercise of their constitu tional rights, causing them irreparable harm. Defendants’ past practice of re taliation in violation of 42 U. S.C. §1983 provides Plaintiffs with a r easonable basis to fear additional retaliatory acts by Defendants based on Plai ntiffs’ planned future exercise of their constitutional rights as part of the Occupy Austin protest. Plaintiffs are thus entitled to an injunction pr eventing Defendants and their agents, employees, and any other persons or entities acting on their behalf, from engaging in any retaliatory acts against Pl aintiffs or other participants in the Occupy Austin prot ests based (1) on such indivi duals’ past, present, or future exercise of ri ghts protected unde r the Fi rst Amendment, or (2) based
29

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 30 of 33
on the fi ling or prosecution of this or an y other suit seeking to enforce such individuals’ rights.
ATTORNEY’S FEES AND COSTS 6.01 It was necessary for Plaintiffs t o hire t he undersigned attorneys to file t his
lawsuit. Plaintiffs seek the recovery of attorney’s fees incurred in the pursuit of this action pursuant to 42 U .S.C. §1988(b) and expert fees pursuant t o 42 U.S.C. §1988(c). 6.02 Plaintiffs also seek recovery of their expenses and costs of court pursuant to 28 U.S.C. §1920.
DAMAGES 7.01 As a direct and proxim ate result of t he Defendants’ conduct, Plaintiffs
suffered damages for the denial of due process of law and of the First Amendment rights of free expression, peaceable a ssembly, and petitioning for the redress of grievances.
JURY DEMAND 8.01 Plaintiffs demand a trial by jury.
PRAYER 9.01 Plaintiffs ask for judgment against Defendants for the following:
a. A declar ation that Defendant s’ policy of banning indivi duals from City Hall through use of “Crim inal Trespass Notices” violates the First and Fourteenth Amendments to the United States Constitution,
30

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 31 of 33
b. Injunctive relief barring Defe ndants from banning individuals from City Hall and enjoining im plementation of the city’s pol icy regarding issuance of “Criminal Trespass Notices” at City Hall,
c. Injunctive relief ba rring Defendants from engaging in any retaliatory acts against Plaintiffs or ot her participants in t he Occupy Austin protests based on such individuals’ past, present, or future exercise of rights protected under the First Amendment,
d. Injunctive relief ba rring Defendants from engaging in any retaliatory acts against Plaintiffs or ot her participants in t he Occupy Austin protests based on the filing or prosecution of this or any other suit seeking to enforce such individuals’ rights,
e. Such damages for denial of due process of law and of the First Amendment rights of free expre ssion, peaceable assembly, an d petitioning for the redress of gr ievances, as the Court finds appropriate,
f. Pre-judgment and post-judgment interest, g. Reasonable attorney’s fees, h. Costs of suit, and i. Any and all other relief the Court deems appropriate.
31

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 32 of 33

Respectfully

submitted,

Ryan rbates@yettercoleman.com Edward edawson@yettercolem Anna arotman@yettercoleman.com
Jam jch@mail.utexas.edu Brian brian@texascivilrightsproject.org

P. Bates State Bar No. 24055152
C. Dawson State Bar No. 24031999
an.com G. Rotman State Bar No. 24046761
YETTER COLEMAN LLP 221 West Sixth Street, Suite 750 Austin, Texas 78701 (512) 533-0150 [Tel.] (512) 533-0120 [Fax]
es C. Harrington State Bar No. 09048500
McGiverin State Bar No. 24067760
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, Texas 78741 (512) 474-5073 [Tel.] (512) 474-0726 [Fax]
ATTORNEYS FOR PLAINTIFFS

32

Case 1:11-cv-00993-LY Document 20 Filed 12/01/11 Page 33 of 33
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing pl eading on the attorney of record for the defendants, in compliance with the Federal Rules of Civil Procedure on December 1, 2011, via hand delivery and email.
Chris Edwards Assistant City Attorney chris.edwards@austintexas.gov David Douglas Assistant City Attorney david.douglas@austintexas.gov CITY OF AUSTIN LAW DEPARTMENT Post Office Box 1546 Austin, Texas 78767 [Tel.] (512) 974-2667 [Fax] (512) 974-2912

Ryan

P. Bates

33

 
 Case 1:11-cv-00993-LY Document 58 Filed 12/22/11 Page 1 of 2

IN TI-IF UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FILED

RODOLFO SANCHEZ and KRISTOPHER SLEEMAN,
Plaint ffs,

S. O$Y1C COURT
OF TEXAS
'BY__________

V.
ART ACEVEDO, MICHAEL MCDONALD, MARC OTT, LEE LEFFINGWELL, MIKE MARTINEZ, KATHY TOVO, LAURA MORRISON, SI-IERYL COLE, BILL SPELMAN, and CHRIS RILEY, all in their official capacities,

Civil Action No. 1:1 1-cv-00993-LY

and

the CITY OF AUSTIN, Defendants

ORDER

On December 22, 2011, the Court considered the defendants' Rule 12 Motion to Dismiss filed on December 8. Having reviewed the motion, the plaintiffs' response, and the record, the Court finds that the plaintiffs' claims against defendants Art Acevedo, Michael McDonald, Marc Ott, Lee Leffingwell, Mike Martinez, Kathy Tovo, Laura Morrison, Sheryl Cole, Bill Spelman,

and Chris Riley, all in their official capacities, are redundant of the plaintiffs' claims against defendant City of Austin.
Accordingly, the defendants' Rule 12 Motion to Dism(iAsi's .he'reby GRANTED in part.
The plaintiffs' claims against the individual defendants in their official capacities are DISMISSED. Dismissal of these claims is without prejudice to claims against those defendants in their individual capacities.

Case 1:11-cv-00993-LY Document 58 Filed 12/22/11 Page 2 of 2

thi!y Signed

of December, 2011

UNT D STATE DISTRICT JUDGE

 
 Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FILED
SEP 2 7 2012

RODOLFO SANCHEZ AND

§

KRISTOPHER SLEEMAN,

§

PLAINTIFFS,

§

WCELSETREKRNU.SD.ISDTIRSITCRTIC0T COURT

§

V.

§ CAUSE NO. A-1 1-CV-993-LY

§

CITY OF AUSTIN,

§

DEFENDANT.

§

FINDINGS OF FACT AND CONCLUSIONS OF LAW BE IT REMEMBERED that on December 21, 2011, the court called the above-styled cause for bench trial. Plaintiffs Rodolfo Sanchez ("Sanchez") and Kristopher Sleeman ("Sleeman") and Defendant City of Austin (the "City") appeared in person or by counsel. Having carefully considered the evidence presented at trial, the parties' stipulated facts, the case law applicable to this action, the argument of counsel, and the parties' post-trial letters, the court concludes that the City's policy on issuing criminal-trespass notices violates Plaintiffs' First and Fourteenth Amendment rights under the United States Constitution. In so deciding, the court makes the following findings of fact and conclusions of law.1 Jurisdiction and Venue The court has jurisdiction over this cause as Plaintiffs' claims arise under the United States Constitution and federal law. See 28 U.S.C. § 1331. Venue is proper because the underlying events giving rise to this action occurred in the Austin Division of the Western District of Texas, which is also the City's primary place of business.

All findings of fact contained herein that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusion of law more appropriately considered a finding of fact shall be so deemed.

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 2 of 18
Facts The following facts incorporate those stipulated by the parties. It has always been the City's intent to hold out the City Hall Plaza (the "Plaza") to the public
as a free-speech venue without limiting speech to particular subjects. The City's policy regarding public use of the Plaza and other areas of City Hall expressly designates the Plaza, including the mezzanine and amphitheater areas, as a free-speech venue. The Plaza is accessible to the public 365 days a year. No permit is required to use the Plaza, but citizens may make reservations.2 Events in the Plaza sometimes host hundreds or more people. Frequent use of the Plaza for public events is exactly what the City expected and intended to happen when the Plaza was designed.
The City Hall building houses the offices of City Council members, the Mayor, the City
Manager, and the City Clerk, among other departments and offices. City Hall is the location for City Council meetings, zoning meetings, and early voting. Visitors to City Hall may come to get records from the City Clerk, to meet with City Council members and the Mayor, to meet with the City Manager and his assistants, to attend or participate in city meetings, or even just to see artwork or other displays. Normal business hours for City Hall are from approximately 8 a.m. to 5 p.m., with some variation for evening events.
Security at City Hall is provided by the City's Building Services department. Eric Stockton is the department director for the Building Services department. At City Hall, there are both security officers who are employees of the Building Services department and contract security officers who are employees hired on contract from Allied Barton, a security firm.
2 Pursuant to the City's new rules, which took effect on February 3, 2012, any group planning to use the mezzanine and amphitheater areas is required to make a reservation.

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 3 of 18
Occupy Austin describes itself as a protest movement focused on democracy, economic security, corporate responsibility, and financial fairness and is comprised of local citizens dedicated to "non-violently reclaiming control of our governments from the financial interests that have corrupted them." From October 6, 2011 through trial, the Plaza was the main site of an Occupy Austin protest. Not everyone who visited the Plaza during that period, however, was a member of Occupy Austin or a protestor.3
Sanchez began participating in the Occupy Austin protest on October 6, 2011. In the early
morning hours of October 30,2011, Sanchez was arrested by an Austin Police Department ("APD") officer during the City's efforts to enforce a restriction on nighttime food service included in a notice of cleanup that was issued by the City on October 28, 2011, posted on a City Hall door, and
distributed to some protestors on the Plaza on October 29, 2011. Sanchez was issued a criminal-
trespass notice by a member of the City Hall security staff who had authority to issue such notices. Sanchez subsequently received a letter from the City indicating that the duration of his ban was one year and advising him of his right to administrative review of the ban. Sanchez continued to demonstrate with the Occupy Austin protest the day of his release fromj ail on October 31,2011, but
across the street from City Hall at the Margaret Hoffman Oak Park. He continued to regularly
demonstrate with Occupy Austin at various downtown protests at least until the time of trial.4
The Occupy Austin protest at the Plaza ended on Friday, February 3, 2012, when APD
officers cleared the Plaza after the City enacted new rules prohibiting the use of the Plaza between the hours of 10:00 p.m. and 6:00 a.m.
Sanchez subsequently was arrested during an Occupy Austin march from City Hall to the State Capitol on December 8, 2011.
3

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 4 of 18
Sleeman began participating in the Occupy Austin protest by attending organizational and planning meetings held before October 6, 2011. Sleeman was approached by APD officers on October 30, 2011, and placed under arrest. The arrest was based on an outstanding warrant stemming from Sleeman's failure to pay a traffic ticket received for running a stop sign on his bicycle several years before. He was transported to the Travis County jail, booked on the open warrant, and additionally charged with criminal trespass and an ordinance violation. As he was being transported to jail, he was informed by an unidentified city official that he was restricted from
returning to any portion of City Hall, including the Plaza, for a period of one year. Sleeman was issued a criminal-trespass notice by a member of the City Hall security staff who had authority to issue such notices. Sleeman demonstrated with Occupy Austin the day of his release from jail on October 31,2011, also across the street from City Hall at the Margaret Hoffman Oak Park. Sleeman
continued to regularly demonstrate with Occupy Austin at various downtown protests at least until
the time of trial. On November 1,2011, Marc Ott, in his official capacity as City Manager, signed and caused
to be promulgated City Administrative Bulletin 11-04, titled Criminal Trespass Notices On City Properly (referred hereafter as the "policy"). The City developed wriften criminal-trespass-notice forms pursuant to the policy. The policy establishes rules and procedures for issuing and reviewing a criminal-trespass notice resulting from activities that occur in a City-owned or occupied building, or on public lands owned by the City.
A criminal-trespass notice is a verbal or written statement that an individual must depart or
may not enter City property, effectively serving as a ban from some area of public property for a set
amount time. At City Hall, only City-employed security officers can issue criminal-trespass notices

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 5 of 18

under the policy; contract security officers are not authorized to do so. The policy provides
guidelines to determine the duration of a criminal-trespass notice, including six lengths of duration,
depending on the conduct involved. The suggested duration guidelines are as follows:

Description ofConduct
No harm to persons or property, some disruption to City business or other event, and no similar past conduct
Some harm to persons or property, no disruption of City
business or other event, and no similar past conduct
Some harm to persons or property, or some disruption of City business or other event, and history of similar past
conduct
Significant harm to persons or property, or significant
disruption of City business or other event, and no similar
past conduct
Significant harm to persons or property, or significant
disruption of City business or other event, and history of
similar past conduct
Significant harm involving serious bodily injury or the
threat of serious bodily injury to a person or to property, and threat of similar future conduct

Suggested Duration of Exclusion 0-30 days 30-60 days 30-120 days
90-180 days
90 daysi year
i yearpermanent

The policy further provides for post-issuance administrative review of criminal-trespass notices by means of an informal review by the director of the relevant city department, with an
appeal to the City Manager. For notices issued at City Hall and the Plaza, the Building Services department is the relevant city department. As director of the Building Services department, Eric Stockton conducts the administrative-review process for criminal-trespass notices issued at City Hall.
The City conducted an administrative review of Sanchez's criminal-trespass notice and completed that review on November 22, 201 i. The City conducted an administrative review of

5

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 6 of 18
Sleeman' s criminal-trespass notice and completed that review on November 22, 2011. As of December 12, 2011, all criminal-trespass notices for which administrative reviews had been requested and conducted have been modified. In all of these cases, the restriction was modified to end the day of, the day after, or, in the cases of Sanchez and Sleeman, the day before the administrative review was held.
On November 26, 2011, Sleeman tried to return to the Plaza. Sleeman was told by APD Sergeant Sam Shurley that his criminal-trespass notice had not been lifted and remained in effect. Because Sleeman was unable to produce documentation proving that the City had modified his
criminal-trespass notice, he was escorted from City Hall property and told that, ifhe returned to the
Plaza, he would be arrested. Officer Shurley was mistaken about Sleeman's notice still being in effect at that time.
Plaintiffs' First Amended Complaint alleges violations of the First and Fourteenth
Amendments to the United States Constitution pursuant to Title 42, United States Code Section 1983. Specifically, Plaintiffs allege that the bans imposed through their criminal-trespass notices fail First Amendment scrutiny and that the City's policy on issuing criminal-trespass notices is facially unconstitutional due to its lack ofobjective standards, vagueness, and overbreadth. Plaintiffs further assert that the administrative-review procedure in the City's policy violates Plaintiffs' rights to procedural due process under the Fourteenth Amendment. Plaintiffs seek both injunctive relief
against the City's enforcement of its criminal-trespass-notice policy at the Plaza and monetary
damages stenmiing from Defendants' unconstitutional actions in banning Plaintiffs from participating in the Occupy Austin protest at the Plaza.

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 7 of 18
First Amendment The First Amendment to the United States Constitution provides that "Congress shall make no law. . . abridging the freedom of speech. . . or the right of the people peaceably to assemble and to petition the Government for a redress of grievances." U.S. C0NSI. amend. I. The First
Amendment applies to states and municipalities through the Fourteenth Amendment. See Members
ofCity Council v. Taxpayersfor Vincent, 466 U.S. 789, 792 n.2, (1984) (citing Lovell v. GrfJIn, 303
U.S. 444,450(1938)). "[M]unicipal ordinances adopted under state authority constitute state action and are within the prohibition of the [First] [A]mendment". Lovell, 303 U.S. at 450. "The First
Amendment reflects 'a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Snyder v. Phelps, ____U.S. ____, 131 5. Ct. 1207,
1215 (2011) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Therefore,
"speech on public issues occupies the 'highest rung of the hierarchy of First Amendment values,'
and is entitled to special protection." Connickv. Myers, 461 U.S. 138, 145 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)).
However, the protection ofspeech and assemblyunder the First Amendmentis not absolute.
Although the First Amendment applies to a municipality's conduct, a municipal government "need
not permit all forms of speech on property that it owns and controls." International Soc. for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). Thus, courts follow a three-step process to assess whether the governmental restrictions are valid under the First Amendment. See Mahoney v. Doe, 642 F.3d 1112, 1116 (D.C. Cir. 2011) (citing Cornelius v. NAACPLega1Def &Educ. Fund, Inc., 473 U.S. 788, 797 (1985)). First, the court determines whether the First Amendment protects
the speech at issue; second, the court identifies the nature of the forum; and third, the court assesses
7

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 8 of 18
whether the government's justifications for restricting speech satisfy the requisite standard. Id. (quoting Cornelius, 473 U.S. at 797).
The City concedes that much of the conduct by Occupy Austin and its participants falls within the protection of the First Amendment and the City does not dispute that Plaintiffs' participation in the "occupation" of the Plaza (even on the October 30, 2011, the day of their arrest) is a matter of public concern and is within the protection of the First Amendment. Therefore, the
court finds that the First Amendment protects Plaintiffs' protest speech with Occupy Austin at the Plaza.
Courts distinguish three types of forums in public property: traditional public forums; forums
created by government designation; and nonpublic forums. Cornelius, 473 U.S. at 802. Places which by long tradition or by government authorization have been devoted to assembly and debate
fall into the first category of traditional public forums. Perry Educ. Ass 'n, 460 U.S. at 45. The second category consists of public property which the state has opened for use by the public as a place for expressive activity. Id. The third categorypublic property which is not by tradition or designation a forum for public communication is governed by different standards. Id. at 46. The
United States Supreme Court has recognized that with regard to such nonpublic forums, the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Serv. v. Greenburgh Civic Ass 'n, 453 U.S. 114, 129 (1981).
As stated in the parties' Agreed Joint Stipulations of Fact, the City has always held out the Plaza to the public for speech and has always kept it open for use for speech. See Perry Educ. Ass 'ii
8

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 9 of 18
v. Perry Local Educators 'Ass 'n, 460 U.S. 37, 45 (1983). Thus, the court finds that the Plaza falls
under the category of a traditional public forum.5
In traditional public forums, which "have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions,"6 the rights of government to limit expressive
activity are sharply circumscribed. See id. Thus, for a government to enforce a content-based
exclusion, it must show that its regulation is necessary to serve a compelling state interest and that
it is narrowly drawn to achieve that end. See Carey v. Brown, 447 U.S. 455, 461 (1980). A
government may also impose reasonable time, place, and manner constraints in traditional public
forums, however, so long as it does not ban a speaker entirely from engaging in First Amendment-
protected speech in those forums without satisfying the strictest of scrutiny. See Clark v. Comly. for
Creative Non-Violence, 468 U.S. 288, 293 (1984).
As noted above, the second category consists of public property which the government has opened for use by the public as a place for expressive activity. See Perry Educ. Ass 'n, 460 U.S. at 45-46. To create a forum of this type, the government must intend to make or designate the property "generally available" to a class of speakers. Widmar v. Vincent, 454 U.S. 263,264(1981). Although a municipality is not required to indefinitely retain the open character of its facilities, as long as it
does so it is bound by the same standards as apply in a traditional public forum; reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Id. at 269-7 0. The court notes that having found that the City holds out the Plaza as a traditional public forum, which would qualify under the first
category of public forum with a tradition devoted to assembly and debate, it also qualifies as a
designated public forum as the City has not only expressly identified the Plaza as a designated public
forum, but has also retained the open character of the Plaza such that it is bound by the same
standards as apply in a traditional public forum. See Arkansas Educ. Television Comm 'n v. Forbes, 523 U.S. 666, 677 (1998); Estiverne v. La. State BarAss'n, 863 F.2d 371, 376 (5th Cir. 1989).
6 Hague v. ClO, 307 U.S. 496, 515 (1939).

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 10 of 18
A government may regulate expressive conduct in a public forum to protect public health,
safety, or welfare. See Beckerman v. City of Tupelo, Miss., 664 F.2d 502, 509-10 (5th Cir. 1981). If a content-based regulation is to be allowed, the government "must show that its regulation is
necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Educ. Ass 'n, 460 U.S. at 45, (citing Carey, 447 U.S. at 461). That standard is one of "strict scrutiny." Chiu v. Piano Indep. Sch. Dist., 260 F.3d 330, 344-45 (5th Cir. 2001). A content-based
regulation of speech will not satisfy strict scrutiny ifthere is a less restrictive means that "would be
at least as effective in achieving the legitimate purpose" that is being served. Reno v. A CL U, 521
U.s. 844, 874 (1997). See also Serv. Employees Int'l Union, Local 5 v. City ofHouston, 595 F.3d
588, 596 (5th Cir. 2010). A content-based regulation has been defined as one that creates distinctions between "favored
speech" and "disfavored speech." Horton v. City ofHouston, 179 F.3d 188, 193 (5th Cir. 1999). Such a regulation creates a "substantial risk of eliminating certain ideas or viewpoints" from the public forum. Id. A regulatory scheme that requires the government to "examine the content of the message that is conveyed" is content-based regardless of its motivating purpose. Ark Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987) (quoting FCC v. League of Women Voters of
Calif, 468 U.S. 364, 383 (1984)). However, content-neutral regulations of "time, place, and manner of expression" in public
forums are permitted when they are "narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication." Perry Educ. Ass 'n, 460 U.S. at 45. See also UnitedStates Postal Service v. Council ofGreenburgh, 453 U.S. 114, 132(1981); Consolidated Edison Co. v. Public Service Comm 'n, 447 U.S. 530, 535-36 (1980); Graynedv. City ofRockford,
10

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 11 of 18
408 U.S. 104, 115 (1972); Cantwell v. Connecticut, 310 U.S. 296 (1940); Schneider v. State ofNew Jersey, 308 U.S. 147 (1939). Using this test to judge the constitutionality of a regulation is an
application of "intermediate scrutiny." Horton, 179 F.3d at 192-93. In the context of intermediate
scrutiny, narrow tailoring does not require that the least restrictive means be used. Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). As long as the restriction promotes a substantial governmental interest that would be achieved less effectively without the restriction, it is sufficiently narrowly tailored. Id. at 799. See also City ofHouston, 595 F.3d at 596.
The City argues that it has a substantial interest in maintaining the Plaza "in an attractive and intact condition," see Clark, 468 U.S. at 296, as well as ensuring that the Plaza remains readily
available to other members of the public, and that its policy does not single out any type of speech
or provide differential treatment based on the idea expressed. The City further asserts that its policy is narrowly tailored because it is limited to proscribing intrusions upon the maintenance, use, and
enjoyment of public space; it only temporarily restricts the use of one City-owned building or land;
and it allows ample alternative channels for communication, including the Margaret Hoffman Oak Park across the street from the Plaza, so not to preclude Plaintiffs from communicating their message.
Plaintiffs contend that the ability to be physically present in public forums is necessary to
engaging in free speech in those forums. See Yeakle v. City ofPortland, 322 F. Supp. 2d 1119, 1127
(D. Or. 2004). Plaintiffs assert that the City's policy does not merely regulate nonexpressive conduct; rather, it regulates physical presence in a public forum, which is intimately related and essential to a broad variety of protected speech conduct; and it also prevents a banned person from engaging in any form ofspeech, assembly, or other protest-related activity at the Plaza for the duration ofthe ban.
11

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 12 of 18
See Hodgkins v. Peterson, 355 F.3d 1048, 1058-59 (7th Cir. 2004); Yeakle, 322 F. Supp. 2d at 1127. Finally, Plaintiffs argue that the City's policy does not include a less restrictive alternative to a complete ban that would protect Plaintiffs' speech, such as through the enforcement of existing criminal sanctions, nor does it allow for alternative channels of communication as the Plaza is an essential part and primary location of the Occupy Austin protest.
The City's stated interests in the body of the policy are the city's duties (1) "to be a responsible steward" ofproperty it owns or controls, (2) to maintain public property "in a manner that
promotes public safety and health," and (3) "to provide City-owned facilities where the City and the public can conduct business and other approved activities free from unlawful and disruptive interference." The policy allows authorized employees to issue a notice for "conduct occurring on City Property that is unreasonably disruptive or harmful to City Property, to the conduct of City
business, or to the conduct of approved non-City activities occurring on City Property, including but
not limited to conduct that violates the Austin City Code." The policy includes a nonexclusive list of conduct that violates the Austin City Code. Criminal-trespass notices are usually issued only after
an individual has been warned that their conduct is in violation oflaw or "City policy" and given "a reasonable opportunity to cease the violation." However, if an individual's conduct is both
unreasonably disruptive or harmful and is an offense under Texas law, has caused "injury to any
person or damage to any property," or "threatens to cause an imminent breach of the peace," a
criminal-trespass notice may be issued by an authorized employee without prior warning.
Plaintiffs assert that the bans they received are content-based restrictions of speech and expressive conduct. Specifically, Plaintiffs argue that the City's implementation of a newly written policy on criminal-trespass notices, less than a month after the start ofthe Occupy Austin protest, was
12

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 13 of 18
solely in response to the Occupy Austin protests. Therefore, Plaintiffs contend, any content-neutral justifications offered for the bans and the policy must be taken as pretextual. See Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 86 (1st Cir. 2004).
A court generally looks to the terms of an ordinance to see if the ordinance distinguishes favored speech from disfavored speech on the basis of the ideas or views expressed to determine
whether a governmental ordinance or policy is content neutral or content based. See Turner Broad. Sys., v. FCC, 512 U.S. 622, 643 (1994). The City's policy on its face does not specifically address
speech. Despite Plaintiffs' assertions questioning the motive and timing of the City's policy in this case, Plaintiffs have not identified any terms on the face of the policy that distinguish speech.
Although the City's policy does not specifically address speech, however, by completely banning Plaintiffs from the Plaza it precludes Plaintiffs and others from being physically present to participate in clearly protected activities such as those of the Occupy Austin protest. It is necessary to be physically present in a public forum to engage in free speech in that forum. Yeakle, 322 F. Supp. 2d at 1127. Thus, the City's policy in this case does regulate conduct through the physical presence at the Plaza that is essential to protected-speech conduct. See id.
The City's policy prevents a banned person from engaging in any form of speech, assembly, or other protected activity at the Plaza for the duration of the ban. The policy imposes such a ban without first using less restrictive alternatives, including as Plaintiffs suggest, the enforcement of existing criminal sanctions. Morever, by banning Plaintiffs from the Plaza, the City reduces the quantity and quality of expression available. Id.
The City contends that the policy leaves open alternative avenues for communication because a person banned from the Plaza can still engage in protected speech activity in other public forums,
13

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 14 of 18
including Margaret Hoffman Oak Park, located just across the street from the Plaza. An alternative
location is constitutionally inadequate, however, if the banned person is no longer able to
communicate effectively or is unable to reach his intended audience. Id. (citing Members of City Council ofCity ofLosAngeles v. Taxpayersfor Vincent, 466 U.S. 789, 812 (1984); BayArea Peach Navy v. United States, 914 F.2d 1224, 1229(9th Cir. 1990)). Leaving the banned Plaintiffs and others with alternative locations, such as a park across the street from the heart of the protest, is constitutionally inadequate.
A speech restriction must be narrowlytailored to advance a substantial governmental interest
and leave open ample alternative channels of communication. Hays County Guardian v. Supple, 969 F.2d 111, 118 (5th Cir. 1992). Thus, a regulation is narrowly tailored only if it does not burden substantially more speech than is necessary to further the government's legitimate interests, ifthe cost
to speech is carefully calculated, and there are not obvious, less burdensome alternatives. Ward v. RockAgainst Racism, 491 U.S. 781, 799 (1989); Supple, 969 F.2d at 118. Applying this standard to the City's policy in this case, the court concludes that the policy and the bans imposed on Plaintiffs are not narrowly tailored and therefore fail constitutional scrutiny under the First Amendment.
Plaintiffs note that similar bans have failed constitutional scrutiny when applied to First Amendment activity in other courts. In Yeakle, a pre-Occupy case, plaintiffs were banned from Portland's Pioneer Courthouse Square for violating a city ordinance on unattended displays while conducting a petition signature drive. 322 F. Supp. 2d at 1122. The plaintiffs were banned pursuant to a city ordinance permitting issuance of "exclusion notices" for up to 30 days based on any violation
ofstate law, city ordinances, or park rules and regulations. Id. at 1122-23. Analyzing the exclusion ordinance as a content-neutral regulation of speech in a traditional public forum, the district court
14

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 15 of 18 struck it down for violating the First Amendment, both as applied and on its face, holding that the ordinance was not narrowly tailored. Id. at 1125-28.
Plaintiffs further noted at trial that protestors at Occupy Tacoma recently challenged and successfully temporarily restrained a similar policy. See Order Granting Mot. for TRO, Dkt. No. 11,
Canfieldv. Batiste, No. Cli -5 994RJB (W.D. Wash. filed Dec. 6, 2011 )7 Plaintiffs arguethat Yeakle,
CanjIeld, and this case fit into a broad and well-defined pattern of cases striking down or modifying
On February 2,2012, Judge Robert J. Bryan signed the parties' Agreement and Stipulation of Settlement and Permanent Injunction. See Agreement and Stipulation of Settlement and
Permanent Injunction, Dkt. No. 31, Canfield v. Batiste, No. Cii -5994RJB (W.D. Wash. filed Feb.
2, 2012).
15

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 16 of 18
public-forum bans that restrict First Amendment activity.8 See, e.g., Hodgkins, 355 F.3d at 1056-57;
Johnson v. City of Cincinnati, 310 F.3d 484, 502-06 (6th Cir. 2002).
Other Occupy cases are not inconsistent with this court's opinion in this case. See, e.g., Occupy Sacramento v. City ofSacramento, 2011 WL 5374748 (E.D. Cal. Nov. 4, 2011) (denying TRO against enforcement of ordinance prohibiting "remaining or loitering in parks during certain hours"); Occupy Tucson v. City ofTucson, 2011 WL 5401840 (D. Ariz. Nov. 8,201 1)(denying TRO
against enforcement ofpark regulations to prohibit picketing, protesting, etc.); Occupy Fort Myers v. City ofFort Myers, 2011 WL 5554034 (M.D. Fla. Nov. 15, 2011) (granting, in part, preliminary inj unction against enforcement ofordinances requiring permits for parades and protests, setting park
hours, and barring camping and loitering; holding occupation to be expressive conduct protected by
First Amendment); Wailer v. City ofNew York, 933 N.Y.S. 2d 541 (N.Y. Sup. Ct. Nov. 15, 2011) (denying TRO against eviction of Occupy protesters from Zuccotti Park and against preventing reentry to park with tents and other equipment); Occupy Minneapolis v. County ofHennepin, 2011 WL 5878359 (D. Minn. Nov. 23, 2011) (granting TRO against enforcement of prohibition on signs
or posters, and denying it as against prohibitions on sidewalk chalk, sleeping, and erecting structures on plaza and decision to cut off access to electricity; holding sleeping on plaza and erecting tents or
other structures to be protected expressive activity in context of Occupy protests); Davidovich v. City San Diego, 2011 WL 6013010 (S.D. Cal. Dec. 1, 2011) (denying TRO against enforcement of ordinance barring erection or placement of any object on public property or rights-of-way); Isbell v. City of Oklahoma City, 2011 WL 6016906 (W.D. Okia. Dec. 2, 2011) (granting TRO against closure of park and enforcement of curfew); Isbeii v. City of Oklahoma City, 2011 WL 6152852 (W.D. Okia. Dec. 12,2011) (denying preliminary injunction against enforcement of park curfew and bans on camping and overnight sleeping); Occupy Boston v. City ofBoston, No. 11-41 52-G (Mass.
Sup. Ct. Dec. 7, 2011) (vacating TRO and denying preliminary injunction against eviction from
public square); Occupy Denver v. City & County ofDenver, 2011 WL 6096501 (D. Cob. Dec. 7, 2011) (denying TRO against allegedly retaliatory enforcement of ordinances imposing park curfew
and prohibiting encumbrances in public rights-of-way); Freeman v. Morris, 2011 WL 6139216 (D. Me. Dec. 9, 2011) (denying preliminary injunction against enforcement of camping ban and permitting requirement; holding that occupation constitutes protected expressive activity); Occupy Columbia v. Haley, 2011 WL 6318587 (D.S.C. Dec. 16, 2011) (granting preliminary injunction against policy barring after-hours use of statehouse grounds, including camping and sleeping; holding camping and sleeping to be protected expressive activity in the context of Occupy protests; "The court is merely enjoining Defendants from making up rules that do not comport with the First Amendment as a knee-jerk response to Plaintiffs' occupation."); Occupy Fresno v. County ofFresno, 2011 WL 6182325 (E.D. Cal. Dec. 13, 2011) (granting preliminary injunction against permitting requirements and ban on handbills, though denying it as against park hours restriction).
16

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 17 of 18
Procedural Due Process "[D]ue process is flexible and calls for such procedural protections as the particular situation
demands." Morrissey v. Brewer, 408 U.s. 471, 481(1972). Thus, a court's determination regarding whether procedures provided are constitutionally sufficient requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the value of any additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. City ofLosAngeles v. David, 538 U.S. 715, 716 (2003); Mathews v. Eldridge, 424 U.S. 319, 334-35 (U.S. 1976); Marco Outdoor Adver., Inc. v. Regional TransitAuthority, 489 F.3d 669, 673 (5th Cir. 2007); Sys. Contractors Corp. v. Orleans Parish Sch. Bd., 148 F.3d 571,575 (5th Cir. 1998).
Applying these factors, the court finds first that the private interests at stake are Plaintiffs' First Amendment rights and their ability to exercise those rights at the Plaza. Second, the risk of
erroneous deprivation of Plaintiffs' interest is high due to the broad guidelines provided for use by officials in implementing the policy, the lack of notice and post-deprivation-only nature of the
administrative-review process, and the burden placed on the ban recipient to seek appeal, prove that
ban on improper on appeal, and prove final modification of the ban by supplying appropriate
documentation to officials when requested. Balancing these first two factors with the third factor,
which is the City's interest in preserving governmental function and general use of City Hall and the Plaza against disruption while minimizing the fiscal and administrative burdens of additional or other procedural safeguards, the court finds that the City's policy, and notably its postdeprivation appeal process, cannot minimize the risk of erroneous deprivation. See Yeakle, 322 F. Supp. 2d at 1131.
17

Case 1:11-cv-00993-LY Document 67 Filed 09/27/12 Page 18 of 18

Accordingly, the court concludes that the City's policy violates Plaintiffs' procedural due-process rights.

Conclusion
Having determined that the actions of the Occupy Austin protestors, including Plaintiffs in this case, are protected by the First Amendment; that the City's policy regarding the issuing of
criminal-trespass notices does not serve as a valid time, place, and manner restriction and is not narrowly tailored to achieve a significant public interest; and that no suitable alternative channels for protected expression exist, the court concludes that the City's policy does not survive strict scrutiny.
IT IS THEREFORE ORDERED AND DECLARED that City Administrative Bulletin 11-

04, titled Criminal Trespass Notices On City Property is unconstitutional on its face and Defendant City of Austin, its agents, employees, and any other persons or entities acting on its behalf, are enjoined from further enforcement of the City's policy respecting issuance of criminal-trespass

notices.

A Final Judgment shall be filed subsequently in this cause.

SIGNED this

of September, 2012.

UNI DSTATE DIST

18

 
 Case 1:11-cv-00993-LY Document 68 Filed 09/27/12 Page 1 of 2

FILED

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

SEP 2 7 2012

RODOLFO SANCHEZ AND

AUSTIN DIVISION
§

WCELESRTKENU.SD.ISDTIRSITCRTICOTFCTOEUXRATS

BY

(9-7

DEPUTy ct

KRISTOPHER SLEEMAN,

§

PLAINTIFFS,

§

§

V.

§ CAUSE NO. A-i 1-CV-993-LY

§

CITY OF AUSTIN,

§

DEFENDANT.

§

FINAL JUDGMENT

Before the court is the above-styled cause of action. By Findings of Fact and Conclusions

of Law rendered this day, the court has concluded and declared that City Administrative Bulletin 11-

04, titled Criminal Trespass Notices On City Properly is unconstitutional on its face and Defendant

City of Austin, its agents, employees, and any other persons or entities acting on its behalf, are enjoined from further enforcement of the City's policy respecting issuance of criminal-trespass

notices. Accordingly,

IT IS ORDERED that Judgment is rendered in favor of Plaintiffs Rodolfo Sanchez and

Kristopher Sleeman, declaring that City Administrative Bulletin 11-04, titled Criminal Trespass

Notices On City Property is unconstitutional on its face and Defendant City of Austin, its agents,

employees, and any other persons or entities acting on its behalf, are enjoined from further
enforcement of the City's policy respecting issuance of criminal-trespass notices.

IT IS FURTHER ORDERED that Plaintiffs Rodolfo Sanchez and Kristopher Sleeman are

awarded all costs.

Case 1:11-cv-00993-LY Document 68 Filed 09/27/12 Page 2 of 2

All other requested relief is DENIED.

IT IS FINALLY ORDERED that this action is hereby CLOSED.

this1 SIGNED

day of September, 2012.

LEE EAKEL UN ED STATE DISTRICT JUDGE

 
 Case: 1:11-cv-993 As of: 05/24/2014 08:45 AM CDT 1 of 10
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:11−cv−00993−LY

APPEAL

Sanchez et al v. Acevedo et al Assigned to: Judge Lee Yeakel Case in other court: USCA Fifth Circuit, 13−50916 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/21/2011 Date Terminated: 09/27/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Rodolfo Sanchez

represented by Anna Rotman Yetter Coleman, LLP 221 West Sixth Street, Suite 750 Austin, TX 78701 512−553−0150 Fax: 512−533−0120 Email: arotman@yettercoleman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Rolland McGiverin Texas Civil Rights Project 4920 N. I−35 Austin, TX 78751 (512) 474−5073 Fax: (512) 474−0726 Email: bmcgiver@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741−3438 (512) 474−5073 Fax: (512) 474−0726 Email: jch@mail.utexas.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan P. Bates Bates PLLC 3300 Harris Park Avenue Austin, TX 78705 (512) 694−5268 Email: rbates@batespllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Dawson Yetter Coleman LLP 221 West 6th Street, Suite 750 Austin, TX 78701 (512) 533−0150 Fax: (512) 533−0120 Email: edawson@yettercoleman.com TERMINATED: 05/17/2012 ATTORNEY TO BE NOTICED

Plaintiff Kristopher Sleeman

represented by

Case: 1:11-cv-993 As of: 05/24/2014 08:45 AM CDT 2 of 10
Anna Rotman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Rolland McGiverin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan P. Bates (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Dawson (See above for address) TERMINATED: 05/17/2012 ATTORNEY TO BE NOTICED

V. Defendant Art Acevedo in his Official Capacity TERMINATED: 12/22/2011
Defendant Michael McDonald in his Official Capacity TERMINATED: 12/22/2011
Defendant Marc Ott in his Official Capacity TERMINATED: 12/22/2011
Defendant Mayor Lee Leffingwell in his Official Capacity TERMINATED: 12/22/2011
Defendant

represented by Christine G. Edwards Assistant City Attorney P.O. Box 1546 Austin, TX 78767−1546 (512) 974−2419 Fax: 512/974−6490 Email: chris.edwards@austintexas.gov TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christine G. Edwards (See above for address) TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christine G. Edwards (See above for address) TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christine G. Edwards (See above for address) TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:11-cv-993 As of: 05/24/2014 08:45 AM CDT 3 of 10

Mike Martinez in his Official Capacity TERMINATED: 12/22/2011

represented by Christine G. Edwards (See above for address) TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kathy Tovo in her Official Capacity TERMINATED: 12/22/2011

represented by Christine G. Edwards (See above for address) TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Laura Morrison in her Official Capacity TERMINATED: 12/22/2011

represented by Christine G. Edwards (See above for address) TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sheryl Cole in her Official Capacity TERMINATED: 12/22/2011

represented by Christine G. Edwards (See above for address) TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Bill Spelman in his Official Capacity TERMINATED: 12/22/2011

represented by Christine G. Edwards (See above for address) TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Chris Riley in his Official Capacity TERMINATED: 12/22/2011

represented by Christine G. Edwards (See above for address) TERMINATED: 12/22/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant City of Austin

represented by Christine G. Edwards (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/21/2011 11/21/2011
11/21/2011

# Docket Text
1 COMPLAINT ( Filing fee $ 350 receipt number 0542−4118300). No Summons requested at this time, filed by Kristopher Sleeman, Rodolfo Sanchez. (Attachments: # 1 Civil Cover Sheet)(Bates, Ryan) (Entered: 11/21/2011)
Case Assigned to Judge Lee Yeakel. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (tdk, ) (Entered: 11/21/2011)
DEMAND for Trial by Jury by Rodolfo Sanchez &Kristopher Sleeman, contained in the complaint. (os) (Entered: 11/21/2011)

Case: 1:11-cv-993 As of: 05/24/2014 08:45 AM CDT 4 of 10

11/21/2011 11/21/2011 11/21/2011 11/21/2011
11/23/2011 11/29/2011
11/29/2011 11/30/2011 11/30/2011 11/30/2011 11/30/2011 11/30/2011 11/30/2011 11/30/2011 11/30/2011 11/30/2011 11/30/2011 11/30/2011 12/01/2011

2 MOTION for Temporary Restraining Order by Rodolfo Sanchez, Kristopher Sleeman. (Attachments: # 1 Proposed Order)(klw, ) (Entered: 11/21/2011)
3 BRIEF and Appendix in Support of 2 MOTION for Temporary Restraining Order by Rodolfo Sanchez, Kristopher Sleeman. (Attachments: # 1 Appendix)(klw, ) (Entered: 11/21/2011)
4 Summons Issued as to Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (klw, ) (Entered: 11/21/2011)
5 Minute Entry for proceedings held before Judge Lee Yeakel: Telephone Conference held In Chambers on 11/21/2011. Order for parties to confer re: need for an immediate trial. (Minute entry documents are not available electronically.). (Court Reporter Arlinda Rodriguez.)(klw, ) (Entered: 11/21/2011)
6 NOTICE of Withdrawal of Application for Temporary Restraining Order by Rodolfo Sanchez, Kristopher Sleeman re 2 MOTION for Temporary Restraining Order (Bates, Ryan) (Entered: 11/23/2011)
7 Minute Entry for proceedings held before Judge Lee Yeakel: Conference Call held In Chambers on 11/29/2011. Bench trial on merits set. Written order forthcoming. (Minute entry documents are not available electronically.) (Court Reporter Arlinda Rodriguez.)(klw, ) (Entered: 11/29/2011)
19 ORDER Setting Bench Trial for 12/21/2011 09:00 AM before Judge Lee Yeakel. Signed by Judge Lee Yeakel. (klw, ) (Entered: 11/30/2011)
8 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Marc Ott served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
9 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Lee Leffingwell served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
10 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Kathy Tovo served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
11 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Laura Morrison served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
12 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Michael McDonald served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
13 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Mike Martinez served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
14 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Art Acevedo served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
15 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. City of Austin served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
16 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Chris Riley served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
17 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Sheryl Cole served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
18 SUMMONS Returned Executed by Kristopher Sleeman, Rodolfo Sanchez. Bill Spelman served on 11/21/2011, answer due 12/12/2011. (klw, ) (Entered: 11/30/2011)
20 AMENDED COMPLAINT against All Defendants amending 1 Complaint., filed by Kristopher Sleeman, Rodolfo Sanchez.(Bates, Ryan) (Entered: 12/01/2011)

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12/01/2011 12/02/2011 12/02/2011 12/02/2011 12/08/2011 12/08/2011 12/15/2011 12/15/2011
12/16/2011
12/16/2011
12/16/2011 12/17/2011

21 NOTICE of Withdrawal of Jury Demand by Rodolfo Sanchez, Kristopher Sleeman re 20 Amended Complaint (Bates, Ryan) (Entered: 12/01/2011)
22 ANSWER to 1 Complaint by Art Acevedo, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo.(Edwards, Christine) Modified on 12/2/2011 to remove City of Austin as as filer as they were not listed in Answer (klw, ). (Entered: 12/02/2011)
23 AMENDED ANSWER to by City of Austin, Rodolfo Sanchez, Kristopher Sleeman, Art Acevedo, Michael McDonald, Marc Ott, Lee Leffingwell, Mike Martinez, Kathy Tovo, Laura Morrison, Sheryl Cole, Bill Spelman, Christ Riley. (Edwards, Christine) Modified on 12/5/2011 to add filers (klw, ). (Entered: 12/02/2011)
24 STIPULATION Regarding Confidential Information by City of Austin, Rodolfo Sanchez, Kristopher Sleeman, Art Acevedo, Michael McDonald, Marc Ott, Lee Leffingwell, Mike Martinez, Kathy Tovo, Laura Morrison, Sheryl Cole, Bill Spelman, Christ Riley. (Edwards, Christine) Modified on 12/5/2011 to add filers (klw, ). (Entered: 12/02/2011)
25 Defendants' Second Amended ANSWER to 20 Amended Complaint by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo.(Edwards, Christine) (Entered: 12/08/2011)
26 MOTION to Dismiss by Art Acevedo, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (Attachments: # 1 Proposed Order)(Edwards, Christine) (Entered: 12/08/2011)
27 MOTION to Compel to Kristopher Sleeman by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (Attachments: # 1 Proposed Order)(Edwards, Christine) (Entered: 12/15/2011)
28 Response in Opposition to Motion, filed by Rodolfo Sanchez, Kristopher Sleeman, re 27 MOTION to Compel to Kristopher Sleeman filed by Defendant Mike Martinez, Defendant Laura Morrison, Defendant Chris Riley, Defendant Kathy Tovo, Defendant Bill Spelman, Defendant Michael McDonald, Defendant Marc Ott, Defendant Lee Leffingwell, Defendant Sheryl Cole, Defendant City of Austin, Defendant Art Acevedo (Attachments: # 1 Exhibit Sleeman's Resp. to RFP, # 2 Exhibit Dfs' Second RFP to Sleeman, # 3 Exhibit Dfs' Second Req. for ROGS to Sleeman)(Bates, Ryan) (Entered: 12/15/2011)
29 REPLY to Response to Motion, filed by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo, re 27 MOTION to Compel to Kristopher Sleeman filed by Defendant Mike Martinez, Defendant Laura Morrison, Defendant Chris Riley, Defendant Kathy Tovo, Defendant Bill Spelman, Defendant Michael McDonald, Defendant Marc Ott, Defendant Lee Leffingwell, Defendant Sheryl Cole, Defendant City of Austin, Defendant Art Acevedo (Edwards, Christine) (Entered: 12/16/2011)
30 DEFICIENCY NOTICE to Ryan P. Bates: re 28 Response in Opposition to Motion. Pursuant to the Administrative Policies and Procedures, Proposed Orders are Required when a Response to a Motion is filed. DO NOT RE−FILE the entire document. Please, file ONLY the Proposed Order. Use the "ATTACHMENT" event from the menu and LINK the Proposed Order to your Response. In the Docket Text, type "(Proposed Order)". (klw, ) (Entered: 12/16/2011)
31 ATTACHMENT Proposed Order to 28 Response in Opposition to Motion,, by Rodolfo Sanchez, Kristopher Sleeman. (Bates, Ryan) (Entered: 12/16/2011)
32 MOTION to Compel to Rodolfo Sanchez by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (Attachments: # 1 Proposed

Case: 1:11-cv-993 As of: 05/24/2014 08:45 AM CDT 6 of 10

12/17/2011 12/17/2011 12/17/2011 12/18/2011 12/18/2011
12/18/2011 12/19/2011 12/19/2011
12/19/2011

Order)(Edwards, Christine) (Entered: 12/17/2011)
33 Witness List by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (Edwards, Christine) (Entered: 12/17/2011)
34 MOTION for Discovery Spoliation of Evidence Adverse Inference by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (Attachments: # 1 Proposed Order)(Edwards, Christine) (Entered: 12/17/2011)
35 Exhibit List by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo.. (Edwards, Christine) (Entered: 12/17/2011)
36 RESPONSE to Motion, filed by Rodolfo Sanchez, Kristopher Sleeman, re 26 MOTION to Dismiss filed by Defendant Mike Martinez, Defendant Laura Morrison, Defendant Chris Riley, Defendant Kathy Tovo, Defendant Bill Spelman, Defendant Michael McDonald, Defendant Marc Ott, Defendant Lee Leffingwell, Defendant Sheryl Cole, Defendant Art Acevedo (Attachments: # 1 Proposed Order Proposed Order re: Motion to Dismiss)(Bates, Ryan) (Entered: 12/18/2011)
37 Response in Opposition to Motion, filed by Rodolfo Sanchez, Kristopher Sleeman, re 32 MOTION to Compel to Rodolfo Sanchez filed by Defendant Mike Martinez, Defendant Laura Morrison, Defendant Chris Riley, Defendant Kathy Tovo, Defendant Bill Spelman, Defendant Michael McDonald, Defendant Marc Ott, Defendant Lee Leffingwell, Defendant Sheryl Cole, Defendant City of Austin, Defendant Art Acevedo, 27 MOTION to Compel to Kristopher Sleeman filed by Defendant Mike Martinez, Defendant Laura Morrison, Defendant Chris Riley, Defendant Kathy Tovo, Defendant Bill Spelman, Defendant Michael McDonald, Defendant Marc Ott, Defendant Lee Leffingwell, Defendant Sheryl Cole, Defendant City of Austin, Defendant Art Acevedo (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Bates, Ryan) (Entered: 12/18/2011)
38 Witness List by Rodolfo Sanchez, Kristopher Sleeman. (Bates, Ryan) (Entered: 12/18/2011)
39 First Amended Witness List by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (Edwards, Christine) Modified on 12/19/2011 to modify text (klw, ). (Entered: 12/19/2011)
40 REPLY to Response to Motion, filed by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo, re 26 MOTION to Dismiss filed by Defendant Mike Martinez, Defendant Laura Morrison, Defendant Chris Riley, Defendant Kathy Tovo, Defendant Bill Spelman, Defendant Michael McDonald, Defendant Marc Ott, Defendant Lee Leffingwell, Defendant Sheryl Cole, Defendant Art Acevedo, 32 MOTION to Compel to Rodolfo Sanchez filed by Defendant Mike Martinez, Defendant Laura Morrison, Defendant Chris Riley, Defendant Kathy Tovo, Defendant Bill Spelman, Defendant Michael McDonald, Defendant Marc Ott, Defendant Lee Leffingwell, Defendant Sheryl Cole, Defendant City of Austin, Defendant Art Acevedo, 34 MOTION for Discovery Spoliation of Evidence Adverse Inference filed by Defendant Mike Martinez, Defendant Laura Morrison, Defendant Chris Riley, Defendant Kathy Tovo, Defendant Bill Spelman, Defendant Michael McDonald, Defendant Marc Ott, Defendant Lee Leffingwell, Defendant Sheryl Cole, Defendant City of Austin, Defendant Art Acevedo, 27 MOTION to Compel to Kristopher Sleeman filed by Defendant Mike Martinez, Defendant Laura Morrison, Defendant Chris Riley, Defendant Kathy Tovo, Defendant Bill Spelman, Defendant Michael McDonald, Defendant Marc Ott, Defendant Lee Leffingwell, Defendant Sheryl Cole, Defendant City of Austin, Defendant Art Acevedo (Edwards, Christine) (Entered: 12/19/2011)
41 ATTACHMENT Amended Certificate of Service to 38 Witness List, 37 Response in Opposition to Motion,,, 36 Response to Motion, by Rodolfo Sanchez. (Bates, Ryan) (Entered: 12/19/2011)

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12/19/2011 12/19/2011
12/20/2011 12/20/2011 12/20/2011
12/20/2011
12/20/2011 12/21/2011
12/21/2011 12/21/2011 12/21/2011
12/21/2011 12/22/2011 12/22/2011
12/22/2011 12/22/2011
12/22/2011
12/22/2011 12/22/2011 12/22/2011 12/22/2011

42 Exhibit List by Rodolfo Sanchez, Kristopher Sleeman.. (Bates, Ryan) (Entered: 12/19/2011)
43 TRIAL BRIEF of Plaintiffs by Rodolfo Sanchez, Kristopher Sleeman. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Bates, Ryan) (Entered: 12/19/2011)
44 STIPULATION Agreed Joint Stipulations of Fact by Rodolfo Sanchez, Kristopher Sleeman. (Bates, Ryan) (Entered: 12/20/2011)
45 Exhibit List Amended Exhibit List by Rodolfo Sanchez, Kristopher Sleeman.. (Bates, Ryan) (Entered: 12/20/2011)
46 Exhibit List First Amended by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo.. (Edwards, Christine) (Entered: 12/20/2011)
47 Exhibit List Second Amended by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo.. (Edwards, Christine) (Entered: 12/20/2011)
48 Proposed Findings of Fact by Rodolfo Sanchez, Kristopher Sleeman. (Bates, Ryan) (Entered: 12/20/2011)
49 Proposed Findings of Fact by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (Edwards, Christine) (Entered: 12/21/2011)
50 DEFICIENCY NOTICE: re 45 Exhibit List (mc2, ) (Entered: 12/21/2011)
51 Exhibit List Corrected Amended Exhibit List by Rodolfo Sanchez, Kristopher Sleeman.. (Bates, Ryan) (Entered: 12/21/2011)
53 Minute Entry for proceedings held before Judge Lee Yeakel: Bench Trial begun on 12/21/2011 (Minute entry documents are not available electronically.), Bench Trial held on 12/21/2011 (Minute entry documents are not available electronically.), ( Bench Trial recessed until 12/22/2011 09:00 AM before Judge Lee Yeakel.). (Court Reporter Arlinda Rodriguez.)(mc2, ) (Entered: 12/22/2011)
Oral ORDER DENYING 27 Motion to Compel; DENYING 32 Motion to Compel by Judge Lee Yeakel. (mc2, ) (Entered: 12/22/2011)
52 ATTACHMENT Agreed Proposed Order to 36 Response to Motion, by Rodolfo Sanchez, Kristopher Sleeman. (Bates, Ryan) (Entered: 12/22/2011)
54 Minute Entry for proceedings held before Judge Lee Yeakel: Bench Trial held on 12/22/2011 (Minute entry documents are not available electronically.), Bench Trial completed on 12/22/2011 (Minute entry documents are not available electronically.). (Court Reporter Arlinda Rodriguez.)(mc2, ) (Entered: 12/22/2011)
Oral ORDER DENYING 34 Motion for Discovery. Signed by Judge Lee Yeakel. (mc2, ) (Entered: 12/22/2011)
Oral MOTION for Judgment as a Matter of Law by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (mc2, ) (Entered: 12/22/2011)
Oral ORDER DENYING [] Motion for Judgment as a Matter of Law; GRANTING IN PART AND DENYING IN PART 26 Motion to Dismiss (agreement reached) Signed by Judge Lee Yeakel. (mc2, ) (Entered: 12/22/2011)
55 Witness List for 53 , 54 Bench Trial.(klw, ) (Entered: 12/27/2011)
56 Plaintiffs' Exhibit List for 53 , 54 Bench Trial.(klw, ) (Entered: 12/27/2011)
57 Defendants' Exhibit List for 53 , 54 Bench Trial.(klw, ) (Entered: 12/27/2011)
58 ORDER GRANTING IN PART Defendants' 26 MOTION to Dismiss. It is ORDERED that the claims against Laura Morrison, Chris Riley, Kathy Tovo, Bill

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12/28/2011 12/29/2011 05/16/2012 05/17/2012 06/04/2012 06/12/2012 06/12/2012
07/25/2012 09/27/2012 09/27/2012 10/03/2012
10/10/2012
10/10/2012
10/15/2012
10/18/2012
10/18/2012 10/25/2012
10/25/2012 11/01/2012

Spelman, Michael McDonald, Marc Ott, Lee Leffingwell, Sheryl Cole, Art Acevedo and Mike Martinez in their Official Capacity are DISMISSED without Prejudice to refiling in their Individual Capacities. Signed by Judge Lee Yeakel. (klw, ) (Entered: 12/27/2011)
59 RESPONSE to Dfs Submission of Caselaw by Rodolfo Sanchez, Kristopher Sleeman. (Bates, Ryan) (Entered: 12/28/2011)
60 ADVISORY TO THE COURT by City of Austin. (Edwards, Christine) (Entered: 12/29/2011)
61 MOTION to Withdraw as Attorney Edward C. Dawson by Rodolfo Sanchez, Kristopher Sleeman. (Bates, Ryan) (Entered: 05/16/2012)
62 ORDER GRANTING 61 Motion for Edward C. Dawson to Withdraw as Attorney for Plaintiffs. Signed by Judge Lee Yeakel. (klw, ) (Entered: 05/17/2012)
63 ADVISORY TO THE COURT by City of Austin Vacation Letter. (Edwards, Christine) (Entered: 06/04/2012)
64 Letter Brief by Rodolfo Sanchez, Kristopher Sleeman. (klw, ) (Entered: 06/12/2012)
65 ADVISORY TO THE COURT by Art Acevedo, City of Austin, Sheryl Cole, Lee Leffingwell, Mike Martinez, Michael McDonald, Laura Morrison, Marc Ott, Chris Riley, Bill Spelman, Kathy Tovo. (Edwards, Christine) (Entered: 06/12/2012)
66 NOTICE to the court regarding court settings by Rodolfo Sanchez, Kristopher Sleeman. (klw, ) (Entered: 07/25/2012)
67 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Lee Yeakel. (klw) (Entered: 09/27/2012)
68 FINAL JUDGMENT in favor of Plaintiffs against Defendants. Signed by Judge Lee Yeakel. (klw) (Entered: 09/27/2012)
69 MOTION for Extension of Time to File Motion for Fees, Costs, and Expenses by Rodolfo Sanchez, Kristopher Sleeman. (Attachments: # 1 Proposed Order)(Bates, Ryan) (Entered: 10/03/2012)
70 ORDER GRANTING 69 Motion for Extension of Time to File Motion for Fees, Costs and Expenses until 10/18/12. Signed by Judge Lee Yeakel. (klw) (Entered: 10/10/2012)
71 Unopposed MOTION for Extension of Time to File Motion for Attorney's Fees by City of Austin. (Attachments: # 1 Proposed Order)(Edwards, Christine) (Entered: 10/10/2012)
72 ORDER GRANTING Defendant's 71 Motion for Extension of Time to File Motion for Attorney's Fees until 10/22/12. Signed by Judge Lee Yeakel. (klw) (Entered: 10/16/2012)
73 MOTION for Attorney Fees by Rodolfo Sanchez, Kristopher Sleeman. (Attachments: # 1 Proposed Order, # 2 Exhibit A−1, # 3 Exhibit A−2, # 4 Exhibit B)(Bates, Ryan) (Entered: 10/18/2012)
74 BILL OF COSTS by Rodolfo Sanchez, Kristopher Sleeman. (Attachments: # 1 Exhibit)(Bates, Ryan) (Entered: 10/18/2012)
75 RESPONSE to Motion, filed by City of Austin, re 73 MOTION for Attorney Fees filed by Plaintiff Kristopher Sleeman, Plaintiff Rodolfo Sanchez (Attachments: # 1 Proposed Order)(Edwards, Christine) (Entered: 10/25/2012)
76 MOTION to Amend Judgment by City of Austin. (Attachments: # 1 Proposed Order)(Edwards, Christine) (Entered: 10/25/2012)
77 REPLY to Response to Motion, filed by Rodolfo Sanchez, Kristopher Sleeman, re 73 MOTION for Attorney Fees filed by Plaintiff Kristopher Sleeman, Plaintiff Rodolfo Sanchez (Bates, Ryan) (Entered: 11/01/2012)

Case: 1:11-cv-993 As of: 05/24/2014 08:45 AM CDT 9 of 10

11/01/2012 11/05/2012 11/08/2012 02/04/2013 04/05/2013 04/12/2013 04/17/2013 06/25/2013 08/28/2013 09/03/2013 09/25/2013 09/25/2013
10/03/2013 10/03/2013 11/04/2013
11/04/2013

78 Response in Opposition to Motion, filed by Rodolfo Sanchez, Kristopher Sleeman, (Attachments: # 1 Proposed Order Proposed Order)(Bates, Ryan) (Entered: 11/01/2012)
79 ADVISORY TO THE COURT by Rodolfo Sanchez, Kristopher Sleeman. (Attachments: # 1 Exhibit opinion)(Bates, Ryan) (Entered: 11/05/2012)
80 REPLY to Response to Motion, filed by City of Austin, re 76 MOTION to Amend Judgment filed by Defendant City of Austin (Edwards, Christine) (Entered: 11/08/2012)
81 ORDER DENYING Defenant's 76 Motion to Amend Judgment. Signed by Judge Lee Yeakel. (klw) (Entered: 02/04/2013)
82 NOTICE to Counsel of Record to pickup exhibits no later than 04/16/13 or they will be destroyed. (klw) (Entered: 04/05/2013)
83 EXHIBIT RECEIPT by Plaintiff for trial binder.(klw) (Entered: 04/15/2013)
EXHIBITS DESTROYED: Defendants' 57 Trial Exhibits (1 binder).(klw) (Entered: 04/17/2013)
84 ADVISORY TO THE COURT by Rodolfo Sanchez, Kristopher Sleeman. (Bates, Ryan) (Entered: 06/25/2013)
85 Costs Taxed in the amount of $3,951.20 against City of Austin. (klw) (Entered: 08/28/2013)
86 ORDER DENYING Plaintiffs' 73 Motion for Attorney Fees, Costs and Expenses. Signed by Judge Lee Yeakel. (klw) (Entered: 09/03/2013)
87 Appeal of Order entered by District Judge 86 by Rodolfo Sanchez, Kristopher Sleeman. ( Filing fee $ 455 receipt number 0542−5881904) (Bates, Ryan) (Entered: 09/25/2013)
NOTICE OF APPEAL following 87 Notice of Appeal (E−Filed) by Rodolfo Sanchez, Kristopher Sleeman. Filing fee $ 455, receipt number 0542−5881904. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (klw) (Entered: 09/25/2013)
88 TRANSCRIPT REQUEST for dates of 11/21/11 and 11/29/11. Proceedings Transcribed: Teleconfernces. Court Reporter: Arlinda Rodriguez. (klw) (Entered: 10/03/2013)
89 TRANSCRIPT REQUEST for dates of 12/21−22/11. Proceedings Transcribed: Bench Trial. Court Reporter: Arlinda Rodriguez. (klw) (Entered: 10/03/2013)
90 Transcript filed of Proceedings held on November 21, 2011, Proceedings Transcribed: Telephone Conference. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−391−8791. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 11/25/2013, Redacted Transcript Deadline set for 12/5/2013, Release of Transcript Restriction set for 2/3/2014, Appeal Record due by 11/19/2013, (Rodriguez, Arlinda) (Entered: 11/04/2013)
91 Transcript filed of Proceedings held on November 29, 2011, Proceedings Transcribed: Telephone Conference. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−391−8791. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be

Case: 1:11-cv-993 As of: 05/24/2014 08:45 AM CDT 10 of 10

11/04/2013
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filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 11/25/2013, Redacted Transcript Deadline set for 12/5/2013, Release of Transcript Restriction set for 2/3/2014, Appeal Record due by 11/19/2013, (Rodriguez, Arlinda) (Entered: 11/04/2013)
92 Transcript filed of Proceedings held on December 22, 2011, Proceedings Transcribed: Bench Trial Volume 2 of 2. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−391−8791. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 11/25/2013, Redacted Transcript Deadline set for 12/5/2013, Release of Transcript Restriction set for 2/3/2014, Appeal Record due by 11/19/2013, (Rodriguez, Arlinda) (Entered: 11/04/2013)
93 Transcript filed of Proceedings held on December 21, 2011, Proceedings Transcribed: Bench Trial Volume 1 of 2. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−391−8791. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 11/25/2013, Redacted Transcript Deadline set for 12/5/2013, Release of Transcript Restriction set for 2/3/2014, Appeal Record due by 11/19/2013, (Rodriguez, Arlinda) (Entered: 11/04/2013)
NOTICE of Certification of Electronic Record on Appeal accepted by the USCA, Fifth Circuit re Notice of Appeal. There are no exhibits related to this appeal. (klw) (Entered: 11/14/2013)
Request for Electronic ROA made by Defts' counsel. E−mail link sent. (klw) (Entered: 12/03/2013)
Request for Electronic ROA made by Plaintiff's Counsel. E−mail link sent. (klw) (Entered: 12/09/2013)