Lawyers representing five members of the Democracy Coalition were in court last week in front of a three-judge panel of the 3rd Court of Appeals, arguing that a Travis Co. district judge incorrectly dismissed their complaint that Austin Police Department policy regarding peaceful protests violates protestors’ First Amendment rights. Texas Civil Rights Project attorney Wayne Krause, who is representing the “DC Five,” argued that Judge Margaret Cooper incorrectly dropped the city of Austin as a defendant last January, after agreeing with Assistant City Attorney Robin Sanders that plaintiffs had failed to demonstrate that the city had an unconstitutional “custom, policy, or practice” for dealing with protestors.
The demonstrators claim that APD officers violated their free speech rights during an April 27, 2001, protest of George W. Bush by preventing them from walking to the traditional protest site on the west side of Lavaca across from the Governor’s Mansion. The group of 30 to 40 people had walked from the Bullock Museum and was stopped at the northeast corner of 11th and Lavaca, a block from their destination. Tempers flared and an APD horse either charged or was spooked and bolted into the demonstrators; no one was hurt. During their January 2003 trial, a civil jury cleared two APD mounted patrol officers – Kenneth Farr and Michael Carlson – of liability for violating the demonstrators’ rights.
On appeal, Krause argued that APD’s crowd-control policies “lack any regard for First Amendment rights” and told justices Bea Ann Smith, Jan Patterson, and Bob Pemberton that Cooper applied the wrong standard of evidence in dropping the protestors’ state and federal constitutional claims. Krause said that, under law, he was only required to supply “probative evidence” of a violation, which he did by supplying copies of APD policies and training. If the judges agree, the case could be remanded to district court for further proceedings; a decision is expected later this year.
This article appears in February 6 • 2004.