REVISED JANUARY 31, 2000

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-41022

MARK HARRY GABRIEL,

Plaintiff-Appellant,

VERSUS

CITY OF PLANO TEXAS; OFFICER MARK HUNT, in his official capacity

as a member of the City of Plano Police Department; OFFICER TERRY

PAULEY, in his official capacity as a member of the City of Plano

Police Department; and OFFICER ROBERT LEITZ, in his official

capacity as a member of the City of Plano Police Department,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Texas

January 28, 2000

Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges. 

DUHÉ, Circuit Judge:

Appellant Mark Harry Gabriel (“Gabriel”) challenges the

district court's denial of equitable remedies under 42 U.S.C. §

1983. For the reasons stated herein, we AFFIRM the district

court's ruling in favor of Defendants-Appellees.

BACKGROUND

Appellant Gabriel is an itinerant preacher and anti-abortion

activist. Gabriel has engaged in a number of anti-abortion
 

1The Plano Independent School District (“PISD”) operates Clark

High. 

 

2The first regularly scheduled class at Clark High begins at

8:45 a.m. Clark High offers its students a number of “zero hour”

activities that start as early as 7:00 a.m. These activities

include band practice, music lessons, wood shop, athletic

practices, PSAT classes, and tutoring.

 

3According to trial testimony, Leitz believed that this seven

foot area was a city easement in which protesting was authorized.

In actuality, a public right of way extends thirty-three and onehalf feet from the edge of the road running along the southern

boundary of Clark High onto the school grounds across the entire

front of the campus.

2

protests near R.C. Clark High School1 in Plano, Texas. The first

of these protests began at approximately 8:00 a.m. on August 27,

1996. Gabriel, waiving an anti-abortion sign and preaching his

message in a loud voice, stood in an open grassy area at the front

of Clark High. Over 100 students were already at Clark High during

this demonstration and many more arrived by bus over the course of

the protest.2 Officer Robert Leitz, the Plano Police Department's

(“PPD”) liaison officer at Clark High, approached Gabriel and

informed him that he should limit his protest to a seven foot strip

of land within the grassy area.3 Furthermore, Officer Leitz asked

Gabriel not to attempt to draw the students away from the school.

Officer Leitz did not arrest Gabriel, nor did he issue Gabriel a

written warning. Gabriel left at 8:50 a.m.

On August 28, 1996 Gabriel returned to Clark High at 8:30 a.m.

and began protesting and distributing literature. This time

Gabriel limited his activities to a sidewalk located near the
 

4The entire length of the sidewalk in this area is located

within the thirty-three and one-half foot public right of way.

3

school's western boundary.4 Shortly after 8:30 a.m., Vice

Principal Doug Damewood told Officer Leitz that Gabriel had

trespassed on school property in the course of his protest.

Damewood and Officer Leitz approached Gabriel. At Damewood's

request, Officer Leitz issued a verbal warning to Gabriel that he

was trespassing on school property. 

At 7:45 a.m. on September 3, 1996, Gabriel returned to the

grassy area in front of the school and began protesting. Gabriel

waived a foam placard depicting an aborted fetus with the word

“abortion” printed beneath the picture. While waiving the placard

and shouting his religious message, Gabriel attempted to distribute

literature to the students. Officer Leitz along with PPD officers

Mark Hunt and Terry Pauley were present from the beginning of the

demonstration. PPD Sargent Ronald Smithheart and PPD Lieutenant

Paul Rimka arrived later.

Gabriel's protest caused agitation among the students

attending zero hour classes and those arriving to start their

regular class day. School officials had to cancel a number of zero

hour classes that day and delayed the start of other classes by

approximately forty-five minutes. The trial court found that

Gabriel's activities not only caused many students to be late for

class, but also caused dangerous traffic conditions.

As the protest escalated Officers Hunt and Pauley approached
 

5Gabriel contests this issue and insists that he did not swing

his sign at Officer Hunt. The trial court's resolution of this

dispute in favor of Appellees is immaterial to the resolution of

the case. 

 

6Section 37.124 reads in relevant part, “A person commits an

offense if the person, on school property or on public property

within 500 feet of school property, . . . intentionally disrupts

the conduct of classes or other school activities.” TEX. EDUC. CODE

ANN. § 37.124(a) (West 1996). Disrupting “the conduct of classes

or other school activities” includes in relevant part: “enticing or

attempting to entice a student away from a class or other school

activity that the student is required to attend” and/or “preventing

or attempting to prevent a student from attending a class or other

school activity that the student is required to attend.” TEX. EDUC.

CODE ANN. § 37.124(c)(1)(B)-(C) (West 1996). 

 

7 Gabriel alleges that he left under threat of arrest.

4

Gabriel and requested that he identify himself. Gabriel refused.

Officer Hunt left the scene and went to discuss the situation with

the Principal of Clark High, Jimmy Spann (“Spann”). Spann

indicated that he and his staff were having difficulty getting

students off of the school's buses and into the school as a result

of the protest. Officer Hunt returned to the scene and repeatedly

requested that Gabriel put down his sign. Gabriel refused.

Gabriel swung the sign at Officer Hunt's head, at which time

Officer Hunt grasped Gabriel's wrist.5 Upon being grabbed, Gabriel

dropped to the ground and released the sign. Officer Hunt then

informed Gabriel that he was disrupting classes in violation of

section 37.1246 of the Texas Education Code and requested that

Gabriel leave. Gabriel left.7 Officer Hunt did not arrest
 

8According to Appellees, Gabriel has returned to Clark High

several times since September 3, and engaged in peaceful, nondisruptive protests for which he has not been arrested or asked to

leave. Gabriel indicates that he has never returned to protest in

the public right of way in front of Clark High. Both parties agree

that a number of peaceful anti-abortion protests have taken place

at Clark High and other public high schools in Plano since

September 3. 

 

9Gabriel did not appeal the district court's unfavorable

rulings on his unreasonable force, free exercise, and vagueness

claims. Accordingly, these issues are not properly before this

5

Gabriel, nor did he issue Gabriel a citation.8

As a result of the September 3rd incident, Gabriel sued the

City of Plano (the ”City”) and Officers Leitz, Hunt, and Pauley, in

their official capacities, under 42 U.S.C. § 1983. Gabriel asserted

six theories of recovery: (i) City custom and policy abridged his

First Amendment right to free speech; (ii) City custom and policy

abridged his right to free exercise of religion; (iii) unreasonable

use of force; (iv) section 37.124 was void for vagueness as applied

to Gabriel; (v) section 37.124 as applied by the PPD to Gabriel was

unconstitutionally overbroad; and (vi) the City has selectively

enforced section 37.124 in violation of the equal protection clause

of the Fourteenth Amendment. Gabriel sought equitable remedies

under section 1983: a declaratory judgment that his speech and

activities around Clark High were constitutionally protected and a

permanent injunction prohibiting the defendants from enforcing

section 37.124. The district court ruled for the Defendants on all

counts. Gabriel appealed, challenging a number of the district

court's findings of fact and conclusions of law9 as well as six of
court. 

6

the court's evidentiary rulings.

STANDARDS OF REVIEW

We review a denial of declaratory or injunctive relief for

abuse of discretion. See In re Schimmelpenninck, 183 F.3d 347, 353

(5th Cir. 1999). In reviewing judgments on the merits in non-jury

civil cases, we review conclusions of law de novo and conclusions

of fact for clear error. See North Alamo Water v. City of San

Juan, 90 F.3d 910, 915 (5th Cir. 1996).

We review evidentiary rulings for abuse of discretion.

Johnson v. Ford Motor, Co., 988 F.2d 573, 578 (5th Cir. 1993). “A

trial judge sitting without a jury is entitled to greater latitude

in the admission or exclusion of evidence.” Southern Pacific

Trans. Co. v. Chabert, 973 F.2d 441, 448 (5th Cir. 1992). We

reverse judgments for improper evidentiary rulings only “where the

challenged ruling affects a substantial right of a party.”

Johnson, 988 F.2d at 578. “The burden of proving substantial

prejudice lies with the party asserting error.” McDonald v.

Steward, 132 F.3d 225, 232 (5th Cir. 1998).

DISCUSSION

In order to recover under section 1983, Gabriel must prove

that his constitutional rights were violated as a result of a

custom or policy of the City. See Monell v. New York City Dep't of

Soc. Servs., 436 U.S. 658, 694 (1978). Gabriel insists that the
7

City's failure to train its police officers in the Texas Education

Code, property boundaries of Clark High, and First Amendment rights

of access to public fora resulted from a policy or custom of the

City.

Section 1983 liability for failure to train police officers

arises only when “the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come

into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).

In other words, Gabriel's burden is three-fold; he must prove that:

(1) his rights were violated as a result of (2) a municipal custom

or policy of (3) deliberate indifference to his rights. 

In failure to train cases, the plaintiff can prove the

existence of a municipal custom or policy of deliberate

indifference to individuals' rights in two ways. First, he can 

show that a municipality deliberately or consciously chose not to

train its officers despite being on notice that its current

training regimen had failed to prevent tortious conduct by its

officers. See Board of County Comm'rs of Bryan County v. Brown,

520 U.S. 397, 405 (1997). Second, under the “single incident

exception” a single violation of federal rights may be sufficient

to prove deliberate indifference. See Bryan County, 520 U.S. at

409. The single incident exception requires proof of the

possibility of recurring situations that present an obvious

potential for violation of constitutional rights and the need for

additional or different police training. See id. We have
8

consistently rejected application of the single incident exception

and have noted that “proof of a single violent incident ordinarily

is insufficient to hold a municipality liable for inadequate

training.” Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir.

1998); see also, Rodriguez v. Avita, 871 F.2d 552, 554-55 (5th Cir.

1989).

Appellant argues that the trial court erred in failing to

consider the single-incident exception. Gabriel bases his argument

on a statement from the bench that it would “let [Gabriel] save

that [single incident] argument for the Fifth Circuit Court of

Appeals. And then if need be, for the Supreme Court of the United

States.” What Appellant fails to cite is the trial court's next

statement, which explained that the court rejected the single

incident argument because it was “not persuaded by it.” Contrary

to the Appellant's assertion, the district court did not ignore his

single incident exception argument; but rather, simply found it

unpersuasive. Moreover, judging from the trial court's extensive

reliance on Canton and Bryan County in its conclusions of law, we

are convinced that the trial court gave the Appellant's argument

due consideration.

Turning to the merits of Appellant's failure to train claim,

we find no error in the trial court's conclusions that Gabriel did

not meet his burden of proving a municipal policy or practice of

infringement of federal rights. Moreover, we do not find any abuse

of discretion rising to the level of substantial prejudice in the
9

trial court's contested evidentiary rulings. Accordingly, we

AFFIRM the trial court's judgment in favor of Defendants-Appellees.