April 2022 - Parks & Recreation - 30

LAW REVIEW
move either the Confederate flag
from their float or their float from
the parade. " If Dodson was a private
actor at the time, the federal
district court would maintain that
" neither the City nor TOTMA is liable
to Plaintiffs. "
In so doing, the court recognized
that " a municipality cannot compel
private parade organizers to include
speech in their parades, " and similarly,
" it cannot compel them to
exclude it. " As a result, the court
found the City could be liable to
Plaintiffs under § 1983 if TOTMA
was compelled by the City to have
Plaintiffs remove the flag or float. In
addition, both the City and TOTMA
could be liable under § 1983, " if the
City was so pervasively entwined in
TOTMA's decision at the parade to
remove Plaintiffs' flag or Plaintiffs'
float that TOTMA's conduct was
fairly attributable to the City. "
Accordingly, to overcome the
City's motion for summary judgment
and proceed to trial, Plaintiffs
would have to demonstrate sufficient
evidence in the pretrial record
to show either compulsion by the
City or pervasive entwinement of
TOTMA with the City in the decision
to remove Plaintiffs' flag.
In the opinion of the federal district
court, there was insufficient evidence
in the pretrial record to indicate the
City had compelled TOTMA to
remove Plaintiffs' flag or float from
the parade. In particular, the court
cited testimony from Dodson that
she had made her decision before
she ever learned that Mayor Hurst
had received public complaints
about Plaintiffs' Confederate Flag
and had indicated " we needed to
have them take it down. " Dodson
had further testified that she saw a
complaint on TOTMA's Facebook
page, which prompted her to ask
Plaintiffs to abide by parade rules
and she " believed they had agreed to
and remove either their flag or their
float. "
While Joy Holman had testified
that she believed Mayor Hurst was
ordering TOTMA to direct Plaintiffs
to remove the flag, the court
found Holman was " not a TOTMA
decision-maker " whose subjective
beliefs were " relevant to whether
TOTMA perceived Mayor Hurst's
communication as compulsion. " In
the opinion of the court, Lindsay
Dodson was the " relevant TOTMA
decision-maker " and there was no
testimony to indicate Dodson " understood
Mayor Hurst's communication
to be an order. "
Based on Holman's opinion,
Plaintiffs had claimed " TOTMA
was compelled to obey because
Mayor Hurst is 'the director of our
city' and 'in charge.' " The federal
district court rejected this argument.
In the opinion of the court,
Holman's opinion did not provide a
rational basis to conclude TOTMA
was required to obey Mayor Hurst:
There is no evidence that the laws
of the City of Van Buren or the
controlling documents for TOTMA
require TOTMA to obey requests or
commands from the Mayor about
what flags are or are not allowed on
a float in TOTMA's parade.
Further, the federal district court
acknowledged: " Private action is
not converted into state action unless
the state has compelled the act;
mere acquiescence is not enough. "
As cited by the court, Dodson's
undisputed
testimony
indicated
she had " decided, independently "
of Mayor Hurst's communication
to have Plaintiffs remove their flag.
Accordingly, the court found the re30
Parks & Recreation | APRIL 2 0 22 | PARK S ANDRECRE AT ION . OR G
cord demonstrated " TOTMA board
member and parade organizer Lindsay
Dodson's decision to exclude
Plaintiffs' flag or Plaintiffs' float was
the decision of a private actor and
was not compelled by the City. "
City Parade Enforcement
Plaintiffs also had argued that " the
City was so pervasively entwined
with the enforcement of parade
rules that TOTMA's decision to have
Plaintiffs remove their flag or float
was fairly attributable to the City. "
In so doing, Plaintiffs cited phone
calls with Perry, in which he identified
himself as a police officer with
regard to enforcing the " American
flags only " rule. During these calls,
however, the court cited testimony
indicating Perry was " not uniformed
at the time he was enforcing the rule "
and was " acting in his capacity as a
TOTMA board member. " That being
said, if Perry had " leaned on his
authority as a police officer when he
enforced the rule, " the court noted " a
reasonable jury could find Perry was
a state actor. "
Assuming Perry was a " state actor "
under these circumstances, the
federal district court, nevertheless,
held Perry's role in enforcing the
private rule was still " not enough
for official capacity liability against
the City and TOTMA " :
Plaintiffs must also show that
Perry's enforcement of private
rules as a state actor was pursuant
to the City's official policies or customs.
They cannot do so. Again,
it is undisputed that the City did
not impose the " American flags
only " rule, and it is not genuinely
disputed that TOTMA was not
compelled by the City to enforce
TOTMA's own rule.
As characterized by the federal

April 2022 - Parks & Recreation

Table of Contents for the Digital Edition of April 2022 - Parks & Recreation

April 2022 - Parks & Recreation - Intro
April 2022 - Parks & Recreation - Cover1
April 2022 - Parks & Recreation - Cover2
April 2022 - Parks & Recreation - 1
April 2022 - Parks & Recreation - 2
April 2022 - Parks & Recreation - 3
April 2022 - Parks & Recreation - 4
April 2022 - Parks & Recreation - 5
April 2022 - Parks & Recreation - 6
April 2022 - Parks & Recreation - 7
April 2022 - Parks & Recreation - 8
April 2022 - Parks & Recreation - 9
April 2022 - Parks & Recreation - 10
April 2022 - Parks & Recreation - 11
April 2022 - Parks & Recreation - 12
April 2022 - Parks & Recreation - 13
April 2022 - Parks & Recreation - 14
April 2022 - Parks & Recreation - 15
April 2022 - Parks & Recreation - 16
April 2022 - Parks & Recreation - 17
April 2022 - Parks & Recreation - 18
April 2022 - Parks & Recreation - 19
April 2022 - Parks & Recreation - 20
April 2022 - Parks & Recreation - 21
April 2022 - Parks & Recreation - 22
April 2022 - Parks & Recreation - 23
April 2022 - Parks & Recreation - 24
April 2022 - Parks & Recreation - 25
April 2022 - Parks & Recreation - 26
April 2022 - Parks & Recreation - 27
April 2022 - Parks & Recreation - 28
April 2022 - Parks & Recreation - 29
April 2022 - Parks & Recreation - 30
April 2022 - Parks & Recreation - 31
April 2022 - Parks & Recreation - 32
April 2022 - Parks & Recreation - 33
April 2022 - Parks & Recreation - 34
April 2022 - Parks & Recreation - 35
April 2022 - Parks & Recreation - 36
April 2022 - Parks & Recreation - 37
April 2022 - Parks & Recreation - 38
April 2022 - Parks & Recreation - 39
April 2022 - Parks & Recreation - 40
April 2022 - Parks & Recreation - 41
April 2022 - Parks & Recreation - 42
April 2022 - Parks & Recreation - 43
April 2022 - Parks & Recreation - 44
April 2022 - Parks & Recreation - 45
April 2022 - Parks & Recreation - 46
April 2022 - Parks & Recreation - 47
April 2022 - Parks & Recreation - 48
April 2022 - Parks & Recreation - 49
April 2022 - Parks & Recreation - 50
April 2022 - Parks & Recreation - 51
April 2022 - Parks & Recreation - 52
April 2022 - Parks & Recreation - 53
April 2022 - Parks & Recreation - 54
April 2022 - Parks & Recreation - 55
April 2022 - Parks & Recreation - 56
April 2022 - Parks & Recreation - Cover3
April 2022 - Parks & Recreation - Cover4
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/august-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/july-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/june-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/may-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/april-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/march-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/february-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/january-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/december-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/november-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/october-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/september-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/august-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/july-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/june-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/may-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/april-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/march-2021
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