April 2022 - Parks & Recreation - 29

Nuts, bolts
& everthing
in-between.
ment right to make rules for their
own private parade participants. The
First Amendment would, therefore,
not require TOTMA " to allow participants
in its parade to engage in
any expressive conduct they like. "
Section 1983 Claim
Turning to the substance of Plaintiffs'
merely
between the state and the
private party, but between the state
and the alleged deprivation itself.
In this particular instance, the
claims, the federal district
court cited 42 U.S.C. § 1983, which
would allow governmental liability
under federal civil rights law when
a statute, ordinance, regulation,
custom or usage deprives an individual
of " any rights, privileges,
or immunities secured by the Constitution
and laws. " 42 U.S.C. §
1983. Further, the court noted: " A
municipality constitutes a person
for purposes of § 1983 but is liable
only when action pursuant to official
municipal policy of some nature
caused a constitutional tort. "
While 42 U.S.C. § 1983 and " the
First Amendment guarantee of
free speech guards against abridgment
through state action alone, "
the federal district court acknowledged
the First Amendment " does
not inhibit private restrictions on
speech. " Within the context of this
particular case, the federal district
court would, therefore,
find the
City liable to Plaintiffs under §
1983 " only if the City, or a private
person whose action may be fairly
treated as that of the municipality
itself, restricted Plaintiffs' speech. "
Public/Private Nexus
According to the court, " Private
action may be fairly attributed to a
municipality only when there is a
close nexus between the municipality
and the challenged action " :
The one unyielding requirement
is that there be a " close nexus " not
court found " no dispute of fact
that when TOTMA, through board
member and parade organizer Lindsay
Dodson, imposed the 'American
Flags only' rule on the reverse
Christmas parade...TOTMA did so
solely as a private actor " :
TOTMA applied for a parade
permit and the City granted the
permit in January 2020, allowing
TOTMA to block off a portion of
Main Street to non-parade traffic...TOTMA
established rules
and reviewed applications for parade
participation without input
from the City. The City added the
parade to its online calendar of
events occurring in the City and
sent police officers to control traffic
around the parade area.
Under such circumstances, the
federal
district court
held: " No
reasonable juror could find that
this conduct pervasively entwined
the City and TOTMA such that it
made TOTMA's parade the City's
parade. " Similarly, the court could
not find any indication of a " nexus,
close or otherwise, between
TOTMA's decision to impose an
'American flags only' rule on its
parade and the City's decision to
grant TOTMA a parade permit. "
City's Role in Flag Removal
Under these circumstances, the
primary legal issue before the federal
district court was, therefore,
whether TOTMA parade organizer
Dodson was a " private actor " when
she enforced TOTMA's " American
flags only " rule by asking Perry, a
TOTMA member and City police
officer, to " direct Plaintiffs to rereplacement
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April 2022 - Parks & Recreation

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