World Wide Street Preachers Fellowship; Kenneth Coleman, Sr. v. Town of Columbia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-31196
WORLD WIDE STREET PREACHERS FELLOWSHIP; KENNETH
COLEMAN, SR.,
Plaintiffs - Appellants
v.
TOWN OF COLUMBIA,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
Before JONES, Chief Judge, and SMITH and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Officer Robert Miles of the Columbia Police Department violated the First
Amendment rights of World Wide Street Preachers Fellowship members and
Kenneth Coleman, Sr. on February 12, 2005. The question before us on appeal
is whether the Town of Columbia may be held liable under 42 U.S.C. § 1983 for
the actions of its officer. Following a bench trial, the district court determined
that Columbia was not liable for the constitutional deprivation because World
Wide Street Preachers Fellowship and Coleman failed to prove that a Columbia
policy or custom caused the constitutional injury. For the following reasons, we
affirm.
United States Court of Appeals
Fifth Circuit
F I L E D
December 21, 2009
Charles R. Fulbruge III
Clerk

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Columbia does not have its own dispatcher and is within Caldwell Parish.1
2
I.
The facts as found by the district court are as follows: World Wide Street
Preachers Fellowship (“WWSPF”) is an organization of street preachers who
demonstrate along roadways while carrying signs reflective of their religious
beliefs, including their belief that abortion is a sin. Some of their signs are
textual; however, others display pictures of aborted fetuses. Appellant Kenneth
Coleman, Sr. and Allen Russell are street preachers and are members of
WWSPF.
The preachers began demonstrating in Columbia, Louisiana in December
2003 at the intersection of U.S. Highway 165 and Church Street. They preferred
this intersection because they could preach and display their signs to passing
motorists, who were forced to slow down or stop for a traffic signal at the
intersection. The preachers demonstrated at this intersection at least eleven
times between December 2003 and April 2005, usually without police
interruption.
On February 12, 2005, the preachers demonstrated at the southeast corner
of the intersection in front of the First United Methodist Church (“FUMC”),
apparently because the southwest corner of the intersection where they had
demonstrated before was under construction. During the demonstration, the
preachers stood on the shoulder of the state highway and FUMC’s property.
While the preachers were demonstrating, off duty State Trooper John
Wyles observed the preachers standing on the shoulder of the highway. Trooper
Wyles contacted the Caldwell Parish Sheriff’s Department and requested that
an officer move the preachers off the roadway. He was concerned that the1
preachers’ location created a safety issue because northbound traffic would be
distracted by the demonstration, which was approximately 30 feet south of the

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In a previous appeal by WWSPF, we determined that Miles’s arrest of Russell could2
not cause a First Amendment injury to WWSPF because WWSPF as an organization lacks
standing to seek relief for injuries to a single member. World Wide St. Preachers Fellowship
v. Town of Columbia, 245 F. App’x 336, at *5 n.5 (5th Cir. Jun. 6, 2007).
3
traffic light. The Columbia Police Department also received complaints from
FUMC about the preachers.
Because of the calls from Wyles and FUMC, Officers Robert Miles and
Michael Etheridge of the Columbia Police Department were dispatched. Upon
arrival, the officers informed the demonstrators that they needed to leave the
intersection. The officers then left to attend another call.
When the officers later returned, the preachers were demonstrating on
FUMC’s property. Miles informed Russell that the preachers were on church
property, but he disagreed. Miles then pointed to the area adjacent to the
shoulder and stated that “this is church property and they don’t want you here.”
He then pointed to the shoulder and stated “this is state property and they don’t
want you here.” He threatened Russell with arrest if he refused to leave the
intersection. Russell refused and was arrested. Miles then threatened the2
remaining preachers with arrest and said, “You cannot picket, boycott, on state
property or right of way.”
At the time of the arrest, Miles believed Russell was in violation of
Louisiana Revised Statute § 14:108 for resisting an officer. After reviewing the
Louisiana criminal statutes, Miles concluded that Russell also violated
Louisiana Revised Statutes § 32:143 (standing within twenty feet of a traffic
control signal) and § 14:326 (demonstrating without a permit). Russell was
charged with violating the three statutes and was jailed over the weekend.
Thereafter, WWSPF and Coleman filed suit against Columbia under 42
U.S.C. § 1983 complaining that Columbia was liable for the infringement of the
preachers’ right to free speech, free exercise of religion, and freedom of assembly.

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They sought an injunction prohibiting Columbia from limiting the preachers’
rights and nominal damages. The preachers continued to demonstrate at the
intersection after filing suit.
Following discovery, Columbia moved for summary judgment arguing that
the uncontested evidence demonstrated that Officer Miles did not violate the
preachers’ rights and in the alternative, because no Columbia policy or custom
caused the alleged deprivation of rights, Columbia could not be held liable for
the deprivation. The district court determined that an issue of fact remained
as to whether Miles violated the preachers’ rights. Further, an issue of fact
remained as to whether Columbia had a practice or custom of violating the
preachers’ rights that was so widespread or well settled as to constitute custom.
The district court did, however, hold that the preachers failed to establish
municipal liability on the basis of an alleged failure to train.
A bench trial ensued and the district court found in favor of Columbia.
Specifically, the district court found that Officer Miles was motivated not by the
content of the preachers’ message but by Trooper Wyles’s request and the
complaints by FUMC. Nonetheless, the district court found that Miles violated
the preachers’ rights on February 12, 2005, because Miles’s restriction on the
preachers’ rights was not narrowly tailored to serve a significant government
interest and did not leave open alternative channels of communication.
Although Miles violated the preachers’ rights, the court found that the preachers
failed to prove that Columbia could be held liable for the violation. The
preachers appealed.
II.
In reviewing a bench trial, we review the district court’s legal
determinations de novo and its factual findings for clear error. Flint Hills Res.
LP v. Jag Energy, Inc., 559 F.3d 373, 375 (5th Cir. 2009). We may only find clear
error if:

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We granted The National Legal Foundation’s motion to file a brief as amicus curiae3
in this case. In its brief, The National Legal Foundation argued that a plaintiff need not
establish a municipal policy or custom to obtain declaratory or injunctive relief against a
municipality. As noted in the amicus brief, this argument was not raised in the appellants’
brief. It is well-settled in this circuit that “an amicus curiae generally cannot expand the scope
of an appeal to implicate issues that have not been presented by the parties to the appeal.”
Resident Council of Allen Parkway Vill. v. U.S. Dep’t of Hous. & Urban Dev., 980 F.2d 1043,
1049 (5th Cir. 1993); see also Garcia-Melendez v. Ashcroft, 351 F.3d 657, 663 n.2 (5th Cir.
2003). Accordingly, we will not consider the arguments raised only by the amicus curiae.
However, we note that the First, Second, Fourth, Seventh, and Eleventh Circuits have all held
that Monell v. Department of Social Services requires a plaintiff to establish a municipal policy
or custom to obtain relief against a municipality, whether that relief is monetary, declaratory,
or injunctive. See Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007) (holding that Monell’s
requirement applies even when a party seeks only prospective relief); Dirrane v. Errokline
Police Dep’t, 315 F.3d 65, 71 (1st Cir. 2002) (same); Gernetzke v. Kenosha Unified Sch. Dist.
No. 1, 274 F.3d 464, 468 (7th Cir. 2001) (same); Greensboro Prof’l Fire Fighters Ass’n, Local
3157 v. City of Greensboro, 64 F.3d 962, 967 n.6 (4th Cir. 1995) (same); Bannum, Inc. v. City
5
(1) the findings are without substantial evidence to support them,
(2) the court misapprehended the effect of the evidence, and (3)
although there is evidence which if credible would be substantial,
the force and effect of the testimony, considered as a whole,
convinces the court that the findings are so against the
preponderance of credible testimony that they do not reflect or
represent the truth and right of the case.
S.E.C. v. Gann, 565 F.3d 932, 936 (5th Cir. 2009) (quoting Water Craft Mgmt.
LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006)). Under this
framework, we review the decision of the district court.
III.
Title 42 U.S.C. § 1983 provides a vehicle by which a plaintiff may seek
redress for constitutional injuries. It is uncontested on appeal that Officer Miles
violated the preachers’ First Amendment rights on February 12, 2005, when he
threatened the preachers with arrest if they did not end their demonstration and
disperse. Notwithstanding, to prevail against a municipality under § 1983, a
plaintiff must show that the municipality’s policy or custom caused the
constitutional deprivation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-
91 (1978); Sanders-Burns v. City of Plano, 578 F.3d 279, 290 (5th Cir. 2009).3

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of Fort Lauderdale, 901 F.2d 989, 997 (11th Cir. 1990) (same). Only the Ninth Circuit has held
to the contrary and that holding has been called into doubt. Chaloux v. Killeen, 886 F.2d 247,
251 (9th Cir. 1989) (holding that a plaintiff need not establish a policy or custom to obtain
prospective relief); see Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1477 (9th
Cir. 1993) (Fletcher, J., concurring) (observing that Chaloux “is in conflict with Monell.”).
6
No liability exists under the doctrine of respondeat superior in § 1983 actions.
Sanders-Burns, 578 F.3d at 290. Thus, to prevail against Columbia, a
municipality, the preachers must demonstrate: (1) Columbia had a policy or
custom, of which (2) a Columbia policymaker can be charged with actual or
constructive knowledge, and (3) a constitutional violation whose “moving force”
is Columbia’s policy or custom. Pineda v. City of Houston, 291 F.3d 325, 328 (5th
Cir. 2002).
Here, the preachers articulate three bases by which to suggest that
Columbia had a policy or custom of violating the preachers’ rights: 1) Columbia
had a custom or practice of violating the preachers’ rights by applying
inapplicable statutes to limit the preachers’ rights to demonstrate because of the
graphic nature of their signs; 2) Columbia ratified Officer Miles’s decision to
violate the preachers’ rights; and 3) Columbia had a policy of failing to
adequately train its police officers on the rights of protesters. We will consider
each of these alleged bases.
A.
First, the preachers argue that Columbia had a custom or practice of
violating the preachers’ rights by applying inapplicable statutes to limit their
rights to demonstrate because of the graphic nature of their signs. One way
plaintiffs may prove Monell’s municipal policy or custom requirement is to show
a “persistent, widespread practice of city officials or employees which, although
not authorized by officially adopted and promulgated policy, is so common and
well settled as to constitute a custom that fairly represents municipal policy.”
Pineda, 291 F.3d at 328 (quoting Webster v. City of Houston, 735 F.2d 838, 841

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Section 14:108 “provides that it is an offense to intentionally interfere with an officer4
making a lawful arrest, seizing property, or serving process.” World Wide St. Preachers, 245
F. App’x 336, at *7; see LA. REV. STAT. ANN. § 14:108 (2004). We previously determined that
because the preachers were not interfering with an arrest, seizure or property, or service of
process, the resisting statute was not applicable to the preachers’ actions. Id.
Section 32:143 provides in pertinent part: “No person shall stand . . . in any of the5
following places: . . . (7) [w]ithin twenty feet upon the approach to any flashing beacon stop
sign, or traffic control signal located at the side of a roadway . . . .” LA. REV. STAT. ANN. §
32:143 (2002). As we determined previously, “stand” is defined as temporally halting a vehicle
and is inapplicable to human beings who are standing in these areas. World Wide St.
Preachers, 245 F. App’x 336, at *7.
Section 14:326 requires groups within parishes with populations of at least 450,0006
to obtain a permit before staging a parade, march, or demonstration. Id.; see LA. REV. STAT.
ANN. § 14:326 (2004). We determined that the permit statute did not apply to the preachers
because Caldwell Parish, in which Columbia is located, did not meet the population
requirement. Id.
7
(5th Cir. 1984) (en banc)). In its Rule 52 findings of fact and conclusions of law,
the district court rejected the preachers’ theory and found that Columbia did not
have a widespread practice of restricting the preachers’ rights by applying
inapplicable statutes. The preachers aver that finding is clearly erroneous.
On appeal, no party contests that on February 12, 2005, Russell was
arrested and charged on the basis of three inapplicable statutes—Louisiana
Revised Statutes § 14:108 for resisting an officer; § 32:143 for standing within4
twenty feet of a traffic control signal; and § 14:326 for demonstrating without5
a permit. One incident of applying inapplicable statutes to the preachers is,6
however, insufficient to demonstrate a custom. Id. at 329. Again, the preachers
must show a “persistent and widespread practice.” See id.
Thus, to support its position that Columbia had a persistent, widespread
practice of violating the preachers’ rights by applying inapplicable statutes to
limit the preachers’ right to demonstrate because of the graphic nature of their
signs, the preachers point to the following evidence: In December 2003, while the
preachers were demonstrating, Chief of Police Doug Crockett told Russell that
he did not mind the preachers’ protest but asked that they put their signs away.

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Russell declined and told Crockett that they would continue to demonstrate with
their signs until Crockett showed him a law rendering their activities illegal.
Crockett left, and the preachers continued to demonstrate. On another occasion
in December Officer Miles asked if the preachers had to hold up the pictures of
aborted fetuses. He stated that he did not agree with the pictures and that they
were offensive, but he allowed the preachers to continue their demonstration.
Six days after the February 12 incident, the preachers’ attorney
overnighted a letter to Chief Crockett explaining that the actions of Columbia’s
officers violated the preachers’ rights. James Carroll, whose law firm
represented Columbia, responded to the preachers’ letter stating that the officers
acted within the law for several reasons including the fact that the preachers
were too close to the intersection. He also wrongly informed the preachers that
they must acquire a permit to demonstrate on state property. Columbia has no
policies regarding public demonstrations, the display of signs, assembly in public
areas, or street preachers. No group or individual is required to obtain a permit
merely to demonstrate in Columbia. The preachers argue that the letter
demonstrates Columbia’s policy of applying the inapplicable Louisiana Revised
Statutes § 32:143 and § 14:326 to the preachers.
The preachers further point to evidence that while demonstrating on
March 25, 2005, Officer Clay Bennett told them they had to leave the
intersection because they did not have a permit to demonstrate. The preachers
later inquired about the process to obtain a permit, and Officer Bennett
erroneously explained that the town council would have to vote on the issue.
And finally, the preachers point to evidence that on May 21, 2005, while
demonstrating at a different intersection during a festival, Columbia officers
restricted the distance the preachers could stand from the intersection. They
argue that the restriction is consistent with the improper use of the standing
statute. Further, they point to evidence that Russell and Coleman were arrested

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for resisting arrest for failing to move when ordered to do. They argue that the
resisting arrest statute is inapplicable because the elements of resisting arrest
were not met.
Although the above evidence could arguably support a finding that
Columbia had a persistent, widespread practice of applying inapplicable statutes
to the preachers, we hold that such finding is not compelled when considering
all of the evidence in the record. In addition to the evidence cited by the
preachers, there is evidence that the preachers demonstrated at the Highway
165 intersection on May 15, 2004, December 11, 2004, and April 2, 7, 8, and 10,
2005, without any police interference despite Columbia’s awareness of the
demonstrations. Even after the preachers were informed that they would need
a permit to demonstrate, the preachers continued to demonstrate in Columbia
without a permit, and were not arrested again or threatened with arrest on the
basis of the standing or permit statute.
As for the demonstration that occurred near the festival on May 21, 2005,
the evidence demonstrates that officers did not restrict the distance the
preachers could stand from the intersection because of the standing statute but
because of an agreement the preachers made with the officers. Further, there
is evidence that Chief Crockett acquired additional security for the festival, in
part to protect the preachers because he believed they had a right to
demonstrate and he had heard that some members of the public might want to
interfere with that right. And finally, there is evidence that after the festival,
the preachers continued to demonstrate in Columbia without interference.
The district court having reviewed all of the evidence in the record found
that there was no persistent, widespread practice of applying inappropriate
statutes to the preachers to restrict their First Amendment rights because of the

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There appears to be some discrepancy about whether the district court considered the7
events on May 21, 2005, in its determination that there was no widespread practice of
applying inapplicable statutes to restrict the preachers’ constitutional rights. Although the
district court questioned the appropriateness of considering the events on May 21, 2005, we
find that the district court considered the events that day when it reached the conclusion that
“the events that occurred after the Preachers’ break do not show that Columbia had a
widespread practice of applying inapplicable statutes to restrict their constitutional rights.”
Accordingly, we do not find that the district court failed to consider the events on May 21,
2005, in determining whether a widespread policy existed.
10
content of their signs. This finding is supported by the evidence that generally7
Columbia officers allowed the preachers to demonstrate without interference.
There were only a few isolated incidents where officers sought to restrict the
preachers’ rights. We hold that the district court’s finding is supported by
substantial evidence and not so against the preponderance of credible testimony
that the finding does not reflect or represent the truth and right of the case.
Accordingly, the district court’s finding is not clearly erroneous.
B.
Relying on City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) the
preachers argue that Columbia is liable for the deprivation of the preachers’
rights because Columbia ratified the unconstitutional actions of Officer Miles.
In Praprotnik, the Supreme Court provided that if “authorized policymakers
approve a subordinate’s decision and the basis for it, their ratification would be
chargeable to the municipality because their decision is final.” 485 U.S. at 127.
The theory of ratification, however, has been limited to “extreme factual
situations.” Peterson v. City of Fort Worth, Tex., — F.3d —, No. 08-10258, 2009
WL 3818826, at *7 (5th Cir. Nov. 17, 2009); Coon v. Ledbetter, 780 F.2d 1158,
1161 (5th Cir. 1986). Therefore, unless the subordinate’s actions are sufficiently
extreme—for instance, an obvious violation of clearly established law—a
policymaker’s ratification or defense of his subordinate’s actions is insufficient
to establish an official policy or custom. See Peterson, 2009 WL 3818826, at *7;
Grandstaff v. City of Borger, Tex., 767 F.2d 161, 170 (5th Cir. 1985).

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Here, the preachers maintain that Columbia ratified the unconstitutional
actions of Officer Miles by defending his actions and the basis for those action
in a letter to the preachers’ counsel. In pertinent part the letter states:
As the Town of Columbia understands the facts to date, Mr. Russell
and his followers were demonstrating on private property owned by
the First United Methodist Church, as well as within 24 inches of
the white line of U.S. Highway 165 and within 20 feet of a traffic
light at the intersection of U.S. 165 and Church Street. Finally, as
I am sure the video taken by Mr. Russell’s followers reflects, their
demonstrating was within a construction zone on US [sic] 165. As
such, the police officers were well within the law to ask Mr. Russell
to relocate his demonstration to another location.
The letter does not demonstrate that Columbia approved the actions of Officer
Miles or the basis for those actions. Miles did not ask the preachers to relocate
their demonstration but instead, ordered the preachers to leave the intersection.
Further, although the letter listed some of the violations Miles erroneously
believed “fit” the preachers’ actions, the letter clearly lists other bases for why
Miles’s actions were within the law. Accordingly, the letter is insufficient to
demonstrate that Columbia approved Miles’s actions and the basis for those
actions.
C.
The preachers also contend that Columbia is liable for the preachers’
constitutional deprivation because Columbia failed to adequately train its
officers in protester rights. A municipality’s failure to train its police officers can
without question give rise to § 1983 liability. See City of Canton, Ohio v. Harris,
489 U.S. 378, 387 (1989); Brown v. Bryan County, OK, 219 F.3d 450, 456 (5th
Cir. 2000). However, “the inadequacy of police training may serve as the basis
for § 1983 liability only where the failure to train amounts to deliberate
indifference to the rights of a person with whom the police come into contact.”
City of Canton, 489 U.S. at 388. To demonstrate deliberate indifference, a

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plaintiff must show that “in light of the duties assigned to specific officers or
employees, need for more or different training is obvious, and the inadequacy so
likely to result in violations of constitutional rights, that the policymakers of the
city can reasonably be said to have been deliberately indifferent to the need.” Id.
at 390. The failure to train must reflect a “‘deliberate’ or ‘conscious’ choice by a
municipality.” Id. at 389.
Accordingly, to prevail on a failure to train theory of municipal liability
against Columbia, the preachers must demonstrate: (1) Columbia’s training
procedures were inadequate, (2) Columbia was deliberately indifferent in
adopting its training policy, and (3) the inadequate training policy directly
caused the infringement of the preachers’ rights. See Sanders-Burns, 578 F.3d
at 290. Here, the preachers fail to demonstrate that Columbia’s training
procedures were inadequate. The only evidence the preachers elicited to
demonstrate that the training procedures were inadequate was evidence that
Officer Miles did not receive any training on the rights of protesters after he
became assistant chief. However, there is evidence that Miles did receive
training on First Amendment rights at the police academy and at Grambling
State University. He also attended Louisiana Police Officers Standard Training
and received his certification. Further, he admitted that he was aware that the
preachers had a right to demonstrate in Columbia. Evidence alone that Miles
did not receive specific training on the rights of protesters after he became
assistant chief is insufficient to demonstrate inadequate training.
IV.
For the reasons stated herein, we affirm the district court’s decision
finding that the Town of Columbia may not be held liable under 42 U.S.C. § 1983
for the unconstitutional actions of its officer. Accordingly, the district court
properly denied WWSPF and Coleman’s claims for relief.
AFFIRMED.

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