The mayor’s not really the mayor. The city manager’s not really the manager. The City Council – well, they’re just a council. Whenever something does go wrong, the typical posture of city officials is like the Three Stooges giving each other noogies.
The best thing about last week’s federal appeals court opinion (copied below) in the Robert Groden case – he’s the Dealey Plaza Kennedy conspiracy bookseller — is that the court kind of said, not in so many words, “Are you kidding us? You don’t know who’s in charge? That’s your defense?”
Groden sued Dallas over a crackdown campaign in 2010 aimed against vendors and tourist guides at the Kennedy assassination site. In the crackdown, Groden, a nationally recognized author and assassination expert, was jailed even though the city had to know he was not breaking any law by giving lectures and selling books and tapes at a table he sets up most weekends on the grassy knoll.
How would the city know? Well, for one, it is, after all, the city. If they don’t know their own laws, who does?
They went after him for violating a law that governs parks. Dealey Plaza is not a park. More to the point, they had ticketed him for the same thing more than 80 times in the past, and every single time the municipal courts – the city’s own courts – threw out the tickets because Groden hadn’t broken the law.
At some point in 2010, somebody at City Hall ordered the cops at Central Division to put Groden in jail again, even though, as the arresting police officer eventually admitted in court, the city knew in advance the charges would be thrown out. The reasoning, as the officer testified, was that getting arrested and spending the night in jail would be bad enough to break Groden’s will and run him off, even if the charges were eventually dismissed — that nasty tradition known as, “You can beat the rap, but you can’t beat the ride.”
When Groden finally sued them in federal court for civil rights violations, the city invoked municipal immunity, the rule in state law that says, normally, you can’t sue a city. Bradley Kizzia, Groden’s dutiful and brilliant lawyer, got through the immunity shield, but not without some work.
Kizzia argued that the immunity doctrine did not apply and that Groden could still sue the city, if he could show that the city had deliberately adopted an ordinance or policy that violated Groden’s civil rights.
The city then went to court and argued that Groden couldn’t name the specific city official responsible for the crackdown, so he didn’t have a lawsuit. When Kizzia asked for “discovery” – a set of questions the city would have to answer under oath about who ordered the crackdown – the city argued that Kizzia couldn’t command discovery because he didn’t have a lawsuit.
Yeah. I don’t know what they call that in the law, but most of us would call it a Catch-22. You can’t sue us unless you can name the official who ordered the crackdown. You can’t make us answer questions about who ordered the crackdown, because you can’t sue us.
The federal trial court judge, Royal Furgeson Jr., agreed and dismissed Groden’s suit against the city. Shortly thereafter, Furgeson, who had authored an article for The Texas Bar Journal complaining that federal judges didn’t make enough money, left the bench and was made dean of the new UNT Dallas law school.
But Kizzia persisted, appealing Furgeson’s ruling to the 5th U.S. Circuit Appeals Court in New Orleans. In agreeing with Kizzia last week and overruling Furgeson, the appeals court said “the identity of the policy-maker is a question of law.”
Rough translation: “Are you kidding? Your defense is that no one can tell who’s in charge? Look it up, genius.”
The city was arguing that it couldn’t be sued because Groden couldn’t tell the court – because nobody could tell the court – who at City Hall was in charge of the crackdown, because nobody can tell who’s in charge of anything at Dallas City Hall. Kind of like a freight train where nobody is given the actual title, “the engineer,” so if anything does go wrong no one will be in trouble.
But the court said it wasn’t Groden’s job to be Inspector Clouseau and figure out who at Dallas City Hall had done what. The court said the identity of the responsible party at City Hall is a matter of law, in the law, in the city charter and in the state constitution: “Here,” the court said, “the statutorily authorized policymaker is the Dallas City Council.”
In other words, the council is responsible for anything and everything that city government does. If no one in the city staff will accept responsibility, then fine, sue the damn council. It’s their fault for employing the kind of mountebanks and jackanapes who won’t take responsibility for anything.
The 5th Circuit ruling means Groden gets a fresh trial back in Dallas if the city won't settle first. Kizzia told me Monday he hopes the city will settle the case, but he and Groden are ready to go to trial or deal with any appeals.
I spoke to Groden, who was visiting family in Pennsylvania. When I asked him if he was up for another trial, he said, “I visited President Kennedy’s grave back in 1965 and made a solemn promise to him that I would do everything within my knowledge to find the truth and publish it no matter how much time it took, and I have kept my word. I’m going to keep doing it as long as I am breathing.”
This opinion could have meaning and weight for the city outside the issues specific to the lawsuit. The pattern of ducking and dodging is not just a legal stratagem but is ingrained in the very way City Hall operates day-to-day, a part of its institutional culture. That tangled vine of obfuscation and buck-passing has always formed a thorny protective barrier, allowing the city to feel as if it is unrestrained by the normal laws and customs of business.
Kizzia said, in his case anyway, “They’re not going to be able to rely purely on shell games and Catch-22s.”
That could be a game changer.