On July 8, 2024, the Fifth Circuit Court of Appeals decided Verastique v. City of Dallas[i], in which the court examined whether the City of Dallas was liable for the actions of their officers during riots and mass arrests that occurred in 2020.  This article will discuss the plaintiffs’ allegation that the city had a policy on mass arrests that was unconstitutional on its face.  The relevant facts of Verastique are as follows:

In 2020, major metropolitan areas were consumed by demonstrations following the release of a video depicting the well-known George Floyd incident in Minneapolis. Texas was not spared: Some of its cities suffered, inter alia, “widespread [and] severe damage, injury, and property loss.” In Dallas, demonstrations ultimately devolved into “several days of riots, destruction of property, and assaults on police.”

“[I]ndividuals[,] bent on rioting and looting[,]” “rov[ed] throughout the downtown area,” and “[d]estruction quickly followed as [they] began damaging businesses, police vehicles, and starting fires.” After Action Report at 10, 19. Agitators, ignoring orders to disperse, “began inciting the crowd to confront officers.” Id. at 12. Numerous stores—including “[t]wo [f]irearm businesses”—were looted and burglarized. Id. Rioters jumped onto police vehicles and threw “various objects including bricks and rocks at officers.” Id. at 10. Swarms of rioters commandeered I-35E, “forcing motorists to swerve in order to avoid striking pedestrians and eventually stopping traffic.” Id.

All told, the riots inflicted extreme economic harm on Dallas—with one initial damage estimate ascertaining “over five million dollars of property destruction . . . in the central business district alone.” Id. at 7.

B. Plaintiffs Participate in the Dallas Demonstrations

Verastique and Morse, two participants, joined a crowd of demonstrators marching somewhere on or alongside Reunion Boulevard. As the crowd approached I-35E, Verastique and Morse allegedly saw “a [b]lack woman on the ground crying out in pain.” They further claim that officers from the Dallas Police Department (“DPD”) began arresting demonstrators who had “helped th[at] [b]lack woman to her feet.”

Verastique and Morse responded by approaching, and engaging with, those officers—allegedly in an “attempt[] to explain to the officers that the [demonstrators] had not committed any crime[s].” That prompted one of the officers—Roger Rudloff—to order Verastique to “stop and place her hands in the air.” Allegedly, she “immediately complied and remained a lawful peaceful protestor.” She was arrested by Rudloff after being subdued with a less-than-lethal PepperBall round. Rudloff then ordered Morse to the ground and arrested her as well.

While Rudloff was effecting Verastique’s and Morse’s arrests, Nevills approached. Nevills alleges that, running toward the three individuals, he was “hoping to render aid” to Verastique. Nevills was then subdued with PepperBall rounds and arrested.

Little and Baker participated in demonstrations occurring in another part of Dallas. They ended up in a parking garage after tear gas was deployed to disperse the crowds. They allege that DPD officers prevented them from leaving. After repeatedly asking for the officers’ names and badge numbers, they further allege they were roughed up and arrested.

Baker was released from custody shortly thereafter on account of the alleged injuries. The other plaintiffs spent one night in jail. All were charged with various criminal offenses initially, though all charges were dropped approximately two weeks later.[ii]

The plaintiffs filed suit in federal court under § 1983 and alleged that the City of Dallas, Dallas County and the Dallas County Sheriff’s Office violated their constitutional rights.  The district court dismissed all claims because the plaintiffs did not state adequate claims.  The plaintiff’s appealed the dismissal only related to claims against the City of Dallas.

The plaintiffs’ second claim on appeal was that the city should be liable because General Order 609.00 related to mass arrests and protests was unconstitutional on its face.  [NOTE:  The first claim for failing to discipline officers was discussed in Part I.]

Unconstitutional Policy:

A Monell claim is claim against a municipality or county.  To establish Monell claim for a facially unconstitutional policy, the plaintiff must show (1) the official policy of the city was unconstitutional, (2) amounted to deliberate indifference, and (3) the unconstitutional policy was the moving force (or cause) of the violation of the plaintiffs’ constitutional rights.

The plaintiffs’ alleged that City of Dallas Police Department General Order 609.00 was unconstitutional on its face “because (1) it permits the officers ‘to conduct arrests as they saw necessary to quell a civil unrest incident’ with (2) no further ‘guidance or restriction on arrests.’”[iii]  In other words, the plaintiffs’ allege that General Order 609.00 is unconstitutional because it provides officers with discretion to make arrests, and it fails to “comprehensively explain every hypothetical” situation that may impact the legality of an arrest.

The court of appeals then stated

For purposes of a Monell claim, an official, written policy is facially unconstitutional if it “affirmatively allows or compels unconstitutional conduct.”  Edwards, 70 F.4th at 309 (citation omitted).[iv]

Regarding General Order 609.00, the court of appeals stated that it did not affirmatively allow or compel officers to violate the constitutional rights of citizens.  Specifically, the court stated

[The] plaintiffs’ own characterization of General Order 609.00 describes—to a tee—a facially valid policy. An official policy that merely (1) “commits some decisions to an individual officer’s on-the-scene discretion” or (2) “gives some detailed instructions while omitting others” does not “affirmatively allow[] or compel[]” unconstitutional conduct.  Edwards, 70 F.4th at 309.[v]

Additionally, the court of appeals explained that the policy does not, on its face, minimize the effectiveness of the protections provided by the constitution.  The policy simply allows officers to use their discretion to make arrests that are constitutionally valid.  In fact, the court noted

Indeed, counsel for Verastique admitted at oral argument that the Order “doesn’t specifically state [that officers] don’t need probable cause” and that it “does not prohibit” “individualized findings of probable cause.”[vi]

Therefore, the court held that plaintiffs’ allegation that General Order 609.00 is unconstitutional on its face failed because the Order does not “affirmatively allow or compel unconstitutional conduct.”

The court of appeals also noted that the plaintiffs’ attack on General Order 609.00 goes against the limitations that § 1983 and the United States Supreme Court have placed on the scope of municipal liability.  In other words, if the plaintiffs were correct in their interpretation that General Order 609.00 is unconstitutional on its face, municipalities would be liable for their policies (1) if any employee’s exercise of discretion could lead to a constitutional violation or (2) if a policy failed to explicitly provide guidance to avert a possible constitutional violation.  In other words, municipal liability would be the same as respondeat superior.  The court of appeals stated

But that cannot be, for Monell claims predicated on respondeat superior liability are wholly alien to the plain meaning of § 1983.  The statute does not “impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor.” Brown, 520 U.S. at 403 (citation and internal quotation marks omitted).  Accordingly, a municipality is liable only for its own illegal acts. Yet, that’s precisely what plaintiffs’ theory does: It holds municipalities liable for the unsanctioned and unordered acts of others. See id. Unsurprisingly, that yields an end-state that the text of § 1983 will not bear. Piotrowski, 237 F.3d at 578.

Therefore, the court of appeals held that the plaintiffs’ failed to show that General Order 609.00 is unconstitutional on its face and the district court properly dismissed this claim.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 23-10395 (5th Cir. July 8, 2024)

[ii] Id. at 2-5

[iii] Id. at 13

[iv] Id.  (emphasis added)

[v] Id. at 14 (emphasis added)

[vi] Id.