INDIANA UNIVERSITY CHAPTER OF TURNING POINT USA et al v. CITY OF BLOOMINGTON, INDIANA et al

1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
INDIANA UNIVERSITY CHAPTER OF
TURNING POINT USA, et al.,
)
)
)
Plaintiffs, 	)
)
v. 	) 	No. 1:22-cv-00458-SEB-TAB
)
CITY OF BLOOMINGTON, INDIANA, et al., 	)
)
Defendants. 	)
FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING BENCH
TRIAL
A one-day bench trial was conducted on November 17, 2025 to resolve the
remnants of a lawsuit that was substantially resolved on summary judgment to address
Plaintiffs' First Amendment viewpoint discrimination claims related to Defendants' denial
of their 2021 request to paint an "All Lives Matter" street mural in Bloomington, Indiana.
Plaintiffs Indiana University Chapter of Turning Point USA and Kyle Reynolds1 seek
monetary damages and injunctive relief from Defendants City of Bloomington (the
"City") and Director of Public Works Adam Wason and former City Attorney Michael
Rouker, who were sued in their individual capacities. Plaintiffs claim that their street
mural request was denied based on a policy or widespread custom of the City that gave
1 Tim Wheeler was initially included as a Plaintiff during his tenure as President of the Indiana
University Chapter of Turning Point USA. Mr. Wheeler has since graduated from Indiana
University, and Plaintiffs concede he is no longer a proper party. Accordingly, Mr. Wheeler is
dismissed as a Plaintiff and the Clerk is directed to remove his name from the case caption.
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City employees unbridled discretion in deciding whether to approve or deny individual
requests to place art in the public right of way.
Following the trial, the parties submitted post-trial briefs, including proposed
findings of fact and conclusions of law. Having considered the evidence along with those
arguments and contentions, the Court now enters the following Findings of Fact and
Conclusions of Law in accordance with Rule 52(a)(1) of the Federal Rules of Civil
Procedure.
Findings of Fact
I. 	The Parties
In March 2022, when this lawsuit commenced, Mr. Reynolds was a student at
Indiana University and a Board Member of Indiana University Turning Point USA. Mr.
Reynolds graduated from Indiana University in 2023 but is authorized by the current
Indiana University Chapter of Turning Point USA to continue to represent it in this
lawsuit. Tr. at 8–9.
Defendant Adam Wason has served as the Public Works Director for the City of
Bloomington since 2016. Tr. at 111–112. Defendant Michael Rouker served as the City
Attorney from 2016 through November 2023. As City Attorney, Mr. Rouker provided
legal advice, as needed, to the Board of Public Works as well as other City officials. Tr.
at 173; Exh. 80.
II. 	Procedural Background
This lawsuit commenced in state court on March 2, 2022, naming as Defendants
the City, Mr. Wason, and Mr. Rouker, along with three members of the City's Board of
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Public Works who have since been dismissed. The gravamen of the Complaint was that
the City had allowed three "Black Lives Matter" street murals to be displayed while
denying Plaintiffs' "All Lives Matter" mural, which action Plaintiffs alleged violated their
rights under the First Amendment by discriminating against them based on the viewpoint
of their proposed speech. The case was removed to federal court on March 9, 2022.
Following the filing of this lawsuit, Mr. Reynolds's search of public records
disclosed three prior instances when the City had permitted private neighborhood groups
to paint designs on City-owned streets: First, in 2017, the Board of Public Works had
approved a Special Event Application from the McDoel Neighborhood Association's
"Dodds and Fairview Street Painting Group" to "paint and partially close the intersection
of Fairview and Dodds Street" for a "Street Mural Painting Party." The design painted on
the intersection consisted of colorful spiraling sections that formed a turtle in the middle
of the circle. Dkt. 113 at 6. The design included no words or letters.
Second, in 2018, the Board of Public Works had approved a Special Event
Application from the Prospect Hill Neighborhood Association to paint the intersection of
Fairview and Howe Streets. Prior to the presentation of this request to the Board of
Public Works, the Prospect Hill Neighborhood Association had submitted an application
and been awarded a Neighborhood Improvement Grant for the street mural project, as
public art subject to the design constraints of the City. The design selected and used for
the project was titled "Common Pollen" and consisted of a circular shape with points
suggesting the radiating petals of a sunflower. Id. at 5–6. The mural included no words
or letters.
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Third, in 2021, the Board of Public Works had approved a request from the
Westside Neighborhood Association to hold "a neighborhood block party and traffic
calming mural painting." The "traffic calming" depictions referenced were concrete
circles that surrounded planters located in the middle of intersections on Seventh Street in
Bloomington. The design consisted of blue and yellow-colored petals painted around the
traffic circle to form a flower. Id. at 6–7. There were no words or letters incorporated in
the design.
On March 10, 2022, Plaintiffs filed a motion for a preliminary injunction in which
they sought an order enjoining Defendants from enforcing their "right-of-way art policy"
against Plaintiffs and permitting Plaintiffs to paint their proposed "All Lives Matter"
street mural. After briefing, the Court ruled that while the previously authorized "Black
Lives Matter" murals were likely government speech, which would not create a public
forum for citizens to paint on City streets, Plaintiffs were nonetheless likely to succeed in
showing that the City had created a limited public forum by allowing the neighborhood
groups to apply for and receive permission to paint on City streets. The Court therefore
ordered the City to promulgate and disseminate the procedural steps whereby private
individuals and groups, including Plaintiffs, could seek approval for an encroachment on
the City's rights-of-way for the purpose of displaying public art and to permit Plaintiffs to
access those procedures.
In December 2022, the City promulgated the City of Bloomington Policy and
Procedures on Private Art Installations within the Public Right of Way (the "2022
Policy"). The 2022 Policy forbids "speech" in permanent or semi-permanent art
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installations, which would include the street mural Plaintiffs sought to have painted.
"Speech" is defined under the 2022 Policy as "Words, letters, numbers, universally
recognized symbols, or logos of any kind." Exh. 66. Thereafter, Plaintiffs submitted a
Special Event Application with a request to paint the words "All Lives Matter" on
Kirkwood Avenue, a City-owned street. The design included a thin blue line and a thin
red line that bisected the words. The Board of Public Works denied Plaintiffs' application
on the grounds that their proposed mural constituted semi-permanent or permanent art
that contained words and letters and thus violated the 2022 Policy.
All parties moved for summary judgment in response to which the Court has ruled
that the three "Black Lives Matter" street murals authorized by the City constituted
government speech to which First Amendment protections do not apply. The Court
further held that the 2022 Policy was not unconstitutional as applied to Plaintiffs because
the 2022 Policy's prohibition on the use of words and letters in semi-permanent and
permanent art displayed in its public rights-of-way was content-neutral. Regarding
Plaintiff's 2021 request to paint their "All Lives Matter" mural, the Court determined that
no party had sufficiently briefed the issue of the City's culpability or the application of
Monell v. Department of Social Services, 436 U.S. 658 (1978). The Court also held that
genuine issues of material fact remained regarding the motives of Mr. Wason and Mr.
Rouker as well as questions regarding causation that were not properly fleshed out by any
party, thus precluding summary judgment on Plaintiff's viewpoint discrimination claims
against Defendants Wason and Rouker in their individual capacities.
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Plaintiffs sought reconsideration of the Court's summary judgment order on two
grounds: that the Court erred in finding that Plaintiffs' proposed street mural did not
contain a universally recognized symbol, and that Defendants had denied Plaintiffs mural
application in 2023 solely because it contained words and letters. Plaintiffs argued that
these alleged factual errors caused the Court to commit legal error by limiting the
constitutional analysis solely to the "words and letters" portion of the definition of
"speech" in the 2022 Policy, rather than assessing the constitutionality of the entire anti-
speech provision as a whole, which also prohibits "universally recognized symbols" in
semi-permanent and permanent art. The Court denied Plaintiffs' motion for
reconsideration, finding that Plaintiffs had failed to adequately develop such arguments in
their summary judgment briefing, and, in any event, no evidence had been adduced on
summary judgment that the City had at any point identified the red and blue lines of the
design as being "universally recognized symbols" under the 2022 Policy or denied
Plaintiffs' application on that basis.
On November 17, 2025, the Court conducted a bench trial on Plaintiffs' remaining
First Amendment viewpoint discrimination claims based on Defendants' 2021 denial of
Plaintiffs' request to paint their proposed "All Lives Matter" street mural.
III. 	City's Procedures for Seeking Approval for Private Art in Public Rights of
Way Prior to December 2022
The City's Board of Public Works is the body that ultimately approves or
disapproves requests to encroach in the public right of way, including requests to place
art in the public right of way, such as a street mural. Tr. at 244. Prior to December 2022,
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a private group or individual seeking to place art in a public right of way in the City could
submit their request in one of two ways: (1) by completing and submitting a
Neighborhood Grant application (if the request met the qualifications for a Neighborhood
Improvement Grant),2 which application would then be presented to the Board of Public
Works for approval; or (2) by working with the staff of the Department of Public Works
and the Economic Sustainable Development Department ("ESD") to complete a Special
Event Application, which application would then be presented to the Board of Public
Works for approval. Tr. 132–33, 178–79, 244–46. Kyla Cox Deckard, who served on the
Board of Public Works in various capacities from 2016 to the present, testified that it
would also have been possible for a private individual or entity to directly petition the
Board of Public Works at a public meeting, but no witness at trial could identify an
instance in which that method had ever been utilized. Tr. at 247.
During 2021, the Special Event Application was available on the City's public
website, and contained a checklist of tasks an individual or group needed to complete
prior to having their request submitted to the Board of Public Works for review and
approval. The checklist included such items as providing a map of the proposed project,
developing a maintenance of traffic plan, notifying adjacent business owners or residents,
and obtaining any applicable permits. The Special Event Application also contained a
checklist for the City's use to indicate the dates the submissions were received and
ultimately approved by relevant City departments. Dkt. 132–36; Exh. 9.
2 The Neighborhood Improvement Grant procedures are not applicable in this litigation, so we do
not discuss them further.
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City employees often worked with applicants in completing their Special Event
Applications and provided guidance throughout the process, including advising
applicants if their proposal was deficient in a way that made it unlikely to be approved by
the Board of Public Works. Tr. at 120–21, 246–48. Special Event Applications would
also be reviewed by the public safety department and the legal department, if necessary
and as needed. Tr. at 245–46. City employees did not, however, have personal authority
to approve or deny applications.
After a Special Event Application is submitted, City staff would place the request
on the agenda of the Board of Public Works and include with the application any other
documents relevant to the request, placing them into a packet of materials that was
provided to the members of the Board for their review a few days in advance of the
scheduled meeting at which the request was scheduled to be considered. Tr. at 114–116,
128. Determining which materials would be included in the packet was entrusted to the
discretion of City staff, but Board members could request additional documents or
information, if needed. Tr. at 240–41. Following review of the materials, the Board of
Public Works would vote on whether to approve the Special Event Applications included
on each meeting's agenda.
Prior to December 2022, the City had promulgated no written policy by which the
Board of Public Works evaluated the content of the private art proposals for public rights-
of-way. However, pursuant to the unwritten policy or practice of the City prior to
December 2022, public art proposals were evaluated on the basis of the same design
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criteria as set forth in the written 2022 Policy, namely, that words, letters, and universally
recognized symbols were not permitted. Tr. at 190–93, 196–97.
IV. 	Plaintiffs' All Lives Matter Mural Request
In late July 2021, Mr. Reynolds, then a student attending Indiana University and
residing in Bloomington, along with the Indiana Chapter of Turning Point USA sought to
paint a 15' by 145' mural on the surface of a City-owned street containing the words "All
Lives Matter" bisected by a thin blue line and a thin red line to symbolize Plaintiffs'
support for first responders and law enforcement. Tr. at 16–19, 52–53; Exh. 2 at 1, 7;
Exh. 4 at 2; Exh. 6. Mr. Reynolds, who a few weeks prior had seen a "Black Lives
Matter" mural painted on a City-owned street within the Indiana University Campus by
the Black Collegians, a campus student group,3 was moved to seek permission to install
an "All Lives Matter" street mural on the Indiana University campus. Plaintiffs sought to
paint an "All Lives Matter" mural because they believed their message was being
suppressed, (Tr. at 18–19, 25–26, 31), and that "the [Black Lives Matter] moniker is
highly divisive and not representative of all the groups on campus." Exh. 2 at 1; Exh. 3 at
1; Exh. 5 at 1.
3 As discussed above, in 2021, the City planned for three "Black Lives Matter" murals to be
painted on its streets, including the mural painted by the Black Collegians. The three murals
were painted on City-owned streets and were completed by early July 2021. We previously ruled
in response to the parties' cross motions for summary judgment, that these murals constitute
government speech, stating that "any argument that Defendants engaged in viewpoint
discrimination in violation of Plaintiffs' First Amendment rights by approving the installation of
the [Black Life Matters] murals on City streets while not permitting Plaintiffs to paint a similar
[All Lives Matter] mural necessarily fails." Dkt. 89 at 33. Accordingly, we reference here the
Black Lives Matter murals solely to contextualize the remaining claims at issue in this litigation.
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On July 20, 2021, Mr. Reynolds, acting on his own behalf and as campus
coordinator for the Indiana University Chapter of Turning Point USA, emailed a message
to Thomas Morrison, Indiana University's Vice President for Capital Planning and
Facilities, and Indiana University Student Involvement and Leadership containing on the
subject line, "All Lives Matter Mural on Campus." Exh. 2 at 1. In that email, Mr.
Reynolds requested permission to paint the words "All Lives Matter" on "any space with
high visibility on campus." Id. Mr. Reynolds further stated that he was making this
request in response to the "recent unveiling of the Black Lives Matter mural on campus."
Id.
Mr. Morrison replied on July 27, 2021 by email to Mr. Reynolds's email, stating
that the Black Lives Matter mural Mr. Reynolds had referenced "was not placed on
Indiana University property nor the campus," but was instead on a City-owned street and
that the City was the entity that ultimately approved the Black Lives Matter mural. Exh.
2 at 3. Mr. Morrison's email further stated that "IU does not permit mural type art on the
Bloomington Campus," and directed Mr. Reynolds to confer with the City. Id. In
response to Mr. Reynolds's inquiry regarding the proper City official for him to contact,
Mr. Morrison stated that his "recommendation would be to begin with the Board of
Public Works at the City" as he "believe[d] that they have a published process and staff
who can assist." Exh. 2 at 4–5.
On July 29, 2021, Mr. Reynolds sent an email to the general email account of the
City's Public Works Department (public.works@bloomington.in.gov) containing the
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following subject line: "Permit for an All Lives Matter Mural on Campus." Exh. 3. In
his email, Mr. Reynolds stated as follows:
I represent two student organizations at IU, Turning Point USA and The
Crimson Post. 	We're aware that the Bloomington Department of Public
Works issued a permit for a Black Lives Matter mural to be painted on IU's
campus.
We feel that the BLM moniker is highly divisive and not representative of all
groups on campus. As such, we would like a road on campus to represent
our views with an All Lives Matter mural. Ideally, this would be on a large
and highly visible street, although we are relatively open with regard to the
mural's location.
With the Fall semester starting in less than a month, we would like to get this
process started as soon as possible.
Id. On August 3, 2021, Mr. Reynolds followed up by sending a second email to the
general Public Works Department email account regarding his request, having not
received a response to his first message. Id.
The City employee who ordinarily would have responded to a request such as Mr.
Reynolds's was the Assistant Arts Director. However, because the Assistant Arts Director
position was vacant at that time, Defendant Adam Wason, the Public Works Director,
agreed to respond to Mr. Reynolds's request. Mr. Wason testified that he agreed to handle
the request for the added reason that it involved high-level Indiana University officials
and it was unclear whether Mr. Reynolds's request implicated a City-owned or Indiana
University-owned street as both City-owned and University-owned streets exist on
campus. Tr. at 137–39, 141–42.
On August 2, 2021, Mr. Wason emailed Mr. Reynolds a message bearing the
subject line, "Campus Mural." Exh. 4 at 1. Mr. Wason informed Mr. Reynolds that he
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would "need to work with the [Indiana University] President's Office, as did the other
group [the Black Collegians], in order to get the concept for any murals approved for
placement on any streets on campus." Id. Mr. Wason testified that he had referred Mr.
Reynolds to Indiana University because it was not clear where Mr. Reynolds was
proposing the mural be placed; Mr. Wason assumed, based on Mr. Reynolds's references
to "campus" and "campus streets," that he was seeking permission to paint a mural on a
street owned by Indiana University. Tr. at 151.
Mr. Reynolds complied with Mr. Wason's directive to contact the Indiana
University President's Office and again emailed Mr. Morrison that same day, on August 2.
Exh. 1 at 4; Tr. 45–46. Mr. Morrison promptly responded, informing Mr. Reynolds that,
although the City has "ultimate approval" for proposed art installations on its streets, the
City "consults with [Indiana University] as an adjacent property owner," as it had
regarding the location of the Black Lives Matter mural painted by the Black Collegians.
Exh. 2 at 6. Mr. Reynolds responded by providing Mr. Morrison with a list of a few of
Plaintiffs' preferred locations for the proposed All Lives Matter mural, including the
intersection of East Kirkwood and Indiana Avenue in front of the Von Lee Building, as
well as with information regarding the size and design of the mural. Tr. at 51–54, Exh. 2
at 7–8, Exh. 6. Mr. Morrison replied to Mr. Reynolds saying he should "relay to the City
that IU is okay with the East Kirkwood location" and to "reach out with any further
questions." Exh. 2 at 7–8.
On August 3, 2021, Mr. Reynolds informed Mr. Wason via email that the proposed
All Lives Matter mural had been "approved by the [Indiana University] President's
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Office, specifically by IU Vice President for Capital Planning and Facilities Thomas
Morrison, for placement on E[ast] Kirkwood Ave[.] in front of the Von Lee building."
Exh. 4 at 2. Mr. Reynolds attached a graphic of the proposed mural to the email and
shared details regarding the mural's proposed size and dimensions. Id. Mr. Reynolds
waited two days before sending a follow up email on August 5, 2021, after having not
received a written response from Mr. Wason.4 Id. at 3.
On August 10, 2021, one week after sending his initial email, Mr. Reynolds again
sent an email message to Mr. Wason, stating, "I'm again contacting you in regards to my
proposed mural as I have received permission from IU and would like to move forward
with the project as quickly as possible." Id. at 4. Mr. Wason responded within a few
minutes, instructing Mr. Reynolds to speak with "City Legal" about the mural and
informing him that "Mr. Morrison's office is also not in agreement with your take on IU
'giving permission.'" Id. at 5. Prior to sending this email to Mr. Reynolds, Mr. Wason
testified that he had spoken with Mr. Morrison, who agreed that the University could not
"give permission" to a private individual to paint on a City-owned street, like East
Kirkwood. Tr. at 150–151.
4 Conflicting testimony was presented at trial as to whether Mr. Wason spoke with Mr. Reynolds
on the phone on or before August 3, 2021, when he explained that Mr. Reynolds needed to
contact the ESD to work through the procedures required to submit a Special Event Application,
including explaining the project details—who was involved, who the artist would be, and what
type of materials would be used—and completing a maintenance of traffic plan. Whether that
phone conversation in fact actually occurred is not material to our resolution of the remaining
legal issues.
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Mr. Wason testified that had no personal disagreement with Plaintiffs' "All Lives
Matter" message. Tr. at 158, 160. He was, however, at some point made aware of
concerns within the City regarding the possibility that an "All Lives Matter" street mural
would cause disruptions and protests in the community if it were permitted. However,
Mr. Wason did not specifically recall whether he was aware of such concerns at the time
he referred Mr. Reynolds to City Legal. Tr. at 159–60.
Mr. Wason did not provide Mr. Reynolds with the name of a specific contact for
him to use at City Legal.5 Mr. Reynolds testified that on the basis of his own internet
search, he found an email address for Defendant Michael Rouker, who was at that time
the City Attorney. Using that information, Mr. Reynolds emailed Mr. Rouker that same
day after he had been instructed by Mr. Wason to contact City Legal, to wit, on August
5 Mr. Wason testified at trial that the reason he had directed Mr. Reynolds to consult City Legal
was because he had previously instructed Mr. Reynolds over the phone to contact ESD and Mr.
Reynolds had not done so. At the conclusion of the bench trial, Plaintiffs sought to admit
portions of Mr. Wason's deposition in which he had previously testified that his reason for
sending Mr. Reynolds to City Legal was "at least in part due to staffing issues" in ESD, since the
position of Assistant Arts Director (who typically dealt with requests such as Mr. Reynolds's)
was vacant, although other ESD positions remained staffed. Plaintiffs sought to introduce the
deposition testimony as an inconsistent statement. Defendants objected to the introduction of
Mr. Wason's deposition excerpts on relevance grounds, namely, that the statements were not in
fact inconsistent. In addition, Plaintiffs had not asked Mr. Wason about this alleged
inconsistency during his testimony which denied him an opportunity to explain his prior
testimony. Federal Rule of Evidence 613 does not require a party opponent witness to be given
the opportunity to explain or deny a prior inconsistent statement in order for it to be admissible,
so we overrule Defendants' objection on that basis. However, we agree with Defendants that this
evidence, even if admissible, does not reflect an actual inconsistency. Mr. Wason did not testify
either in deposition or at trial that he had only one reason for referring Mr. Reynolds to City
Legal and Mr. Wason's proffered reasons, to wit, that the ESD office was understaffed, and, that
when instructed to contact the ESD, Mr. Reynolds had failed to do so are not necessarily
contradictory statements. Accordingly, we sustain Defendants' objection on that ground and hold
that Mr. Wason's prior statement does not affect or analysis or view of Mr. Wason's credibility.
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10, and copied Mr. Wason and Mr. Morrison on that communication. In his email, Mr.
Reynolds explained his request to install an All Lives Matter mural, summarized his prior
communications with Mr. Wason and Mr. Morrison, and expressed his desire to move the
project forward. Exh. 5 at 1; Stip. ¶ 12. Specifically, the email provided as follows:
I represent The Crimson Post and Turning Point USA at IU, two student
organizations at Indiana University. 	We're aware that the city permitted a
"Black Lives Matter" mural to be painted this Summer.
We feel that the [Black Lives Matter] moniker is highly divisive and not
representative of all the groups on campus, as such, we would like a road on
campus to represent our views with an All Lives Matter mural.
After speaking with the director of the public works department, Adam
Wason, we were informed that we would first need permission from the IU
President's Office before such a project could proceed. The president's office
then delegated the project to Thomas Morrison, the vice president for capital
planning and facilities at IU. After submitting our proposed design, sizing,
and locations to Mr. Morrison, we were told that graphic and sizing "look
good" and that the university would "not have any objection to" a 15' x 145'
mural on E Kirkwood in front of the Von Lee building. We were told by Mr.
Morrison to "relay to the City that IU is ok with the East Kirkwood location."
After again contacting Mr. Wason and informing him of IU's approval, we
were told that we would have to contact the City's legal department. I have
CC'd everyone that appears to be involved in the decision making process on
this email in the hope of moving this project forward.
Exh. 5 at 1. There was no graphic of the proposed design attached to the email. Id.
When he did not receive a response to his email from Mr. Rouker, Mr. Reynolds
sent follow-up emails on August 17, 18, and 19. Mr. Reynolds's email on August 19
stated: "As I have yet to receive a reply, I am once again following up on this matter with
you. My next step will be to call your office and to get the national [Turning Point USA]
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organization involved, as I have not been attempting to get a permit to create this mural
for a month." Exh. 5 at 2–4.
At the time Mr. Rouker received these communications from Mr. Reynolds, Mr.
Rouker testified that he was quite "busy" with other City business, including "filling in"
for the outgoing Corporation Counsel as well as preparing for hearings on a significant
municipal annexation proposal that was "drawing the majority of [his] time." Tr. at 204.
Mr. Rouker eventually responded to Mr. Reynolds via email on August 23, 2021, stating
only that "the City of Bloomington's Board of Public Works approves the placement of
art in the public right of way. The City does not take recommendations for art in its right
of way from individuals, and, at this time, the City is not considering adding additional
art within its right of way." Ex. 5 at 5; Stip. ¶ 13.
In drafting his response to Mr. Reynolds, Mr. Rouker testified that he drew on his
own knowledge and experience acquired over twelve years of working in municipal
government which allowed him to know that Mr. Reynold's request to paint words on the
surface of a City-owned street was "not the type of request that was susceptible to
approval." Tr. at 229. He said he also relied on various communications he had had with
unidentified City employees.6 Tr. at 230. As City attorney, Mr. Rouker was "expected at
times to independently make representations on behalf of the [municipal] corporation,"
and he believed that he was "acting in conformity with [his] job description" at the time
6 Mr. Rouker invoked the attorney-client privilege in response to Plaintiffs' questioning regarding
the identity of the City officials with whom he had spoken and the content of those
communications. The Court ruled during the trial that Plaintiffs had failed to make a sufficient
showing to warrant an order to pierce the attorney-client privilege.
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he responded to Mr. Reynolds, such that his response was "the authoritative position." Tr.
at 231.
Mr. Rouker testified that he had no personal concerns about the viewpoint of
Plaintiffs' proposed "All Lives Matter" mural. Rather, he was concerned about the
prospect of a policy allowing private individuals to paint any words on City streets,
regardless of the content of the message. Tr. at 222. Based on his experience as a lawyer
and public official in municipal government, he did not believe that any community
would allow private individuals to paint their preferred words on a road surface thereby
turning the streets into billboards. Tr. at 209. Mr. Rouker did not view the blue and red
lines in the design as significant symbols at the time he informed Mr. Reynolds that the
City did not take recommendations from private individuals for public art. Tr. at 214.
At the time Mr. Rouker responded to Mr. Reynolds's request to paint an "All Lives
Matter" street mural in August 2021, Mr. Rouker did not recall any previous time that the
City had taken a request from a private individual or external group to put art in the
public right of way, nor had he ever personally received and responded to such a request.
Mr. Rouker was also not aware of procedures the City had followed at that time in
addressing requests from private individuals to paint on City-owned streets. Tr. at 201,
218–19. Only in the context of this lawsuit, did Mr. Rouker learn for the first time that,
from 2017 through 2021, the City had approved Special Event Applications from three
private neighborhood groups to paint designs on City-owned streets, as detailed above.
Tr. at 218.
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Mr. Rouker copied his immediate supervisor, Corporation Counsel Phillipa
Guthrie, on his communication(s) with Mr. Reynolds regarding the All Lives Matter
mural request. Mr. Rouker's typical practice was to make Corporation Counsel aware any
time he had "some concern that something might be in a newspaper or something might
come up that draws attention from the mayor's office or from some other source," so, he
said, he looped in Ms. Guthrie on Mr. Reynolds's mural request because Mr. Reynolds
had indicated to Mr. Rouker in the August 10 email that he (Mr. Reynolds) was involved
in a publication that was circulated on campus. Tr. 205, 206. Mr. Rouker did not seek to,
nor did he believe that he was "escalating" the importance of Mr. Reynolds's request by
including Ms. Guthrie on his response. Id. at 206.
At the time he responded to Mr. Reynolds, Mr. Rouker was aware that the City
"has a great deal of activism in its community" where "folks come and champion any
number of or variety of political perspectives" with "counter protests" being "extremely
common." Tr. 206. However, according to Mr. Rouker, he personally had no concerns
that "something negative would happen in the [C]ity" if Plaintiffs' proposed All Lives
Matter mural were installed. Tr. 207.
Approximately 20 minutes after receiving Mr. Rouker's August 23 email, Mr.
Reynolds responded via email, copying Mr. Wason, Mr. Morrison, and Ms. Guthrie on his
response, stating, "I would like to point out that the city approved a [Black Lives Matter]
piece of art only a few months ago, and I and the organizations I represent will be
pursuing legal action against the city if this mural doesn't receive approval. As an
attorney, I'm sure I don't need to inform you that government entities cannot discriminate
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in the viewpoints they allow to be expressed." Exh. 5 at 6. The lack of response from
any City official to his email was interpreted by Mr. Reynolds as a denial of his request to
paint an "All Lives Matter" street mural. Plaintiffs' 2021 request was never officially
presented to the Board of Public Works for consideration or further action.
Conclusions of Law
I. 	Monell Claim
Plaintiffs' viewpoint discrimination claim against the City is governed by the
requirements set forth in Monell v. Department of Social Services, 436 U.S. 658 (1978)
and its progeny. Under Monell, "a municipal entity is not vicariously liable for the
constitutional torts of its employees" and instead "may be liable only for conduct that is
properly attributable to the municipality itself." Milchtein v. Milwaukee Cnty., 42 F.4th
814, 826 (7th Cir. 2022) (internal quotations and citations omitted). Therefore, courts
must apply "rigorous standards of culpability and causation" to prevent municipal
liability from collapsing into respondeat superior liability. Bd. of Cnty. Comm'rs v.
Brown, 520 U.S. 397, 405 (1997).
A constitutional deprivation may be attributable to a municipality only “when
execution of a government’s policy or custom inflicts the injury.” Houskins v. Sheahan,
549 F.3d 480, 493 (7th Cir. 2008) (quotation marks and citation omitted). A plaintiff can
show that a constitutional violation resulted from the execution of a municipal policy or
custom in the following three ways: “(1) an express policy causing the loss when
enforced; (2) a widespread practice constituting a ‘custom or usage’ causing the loss; or
(3) a person with final policymaking authority causing the loss.” Walker v. Sheahan, 526
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F.3d 973, 977 (7th Cir. 2008) (citing Chortek v. City of Milwaukee, 356 F.3d 740, 748
(7th Cir. 2004)). Additionally, the municipality's "official policy, widespread custom, or
action by an official with policy-making authority [must be] the 'moving force' behind
[the] constitutional injury." Dixon v. Cnty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016)
(quoting City of Canton v. Harris, 489 U.S. 378, 379 (1989)).
Here, the evidence adduced at trial establishes that, though the City did not have a
written policy in 2021 that was specifically applicable to requests by private parties to
install art in public rights-of-way, the City did have an unwritten policy or practice of
considering such requests under its established procedures that were applicable to
requests for any type of encroachment on the public rights-of-way. Under these
established procedures, a private party worked with the ESD and other City departments
as necessary to complete a Special Event Application, which would then be presented to
the Board of Public Works for approval. With regard to art installations in particular, the
City also had no written policy regarding design criteria, but had a custom of prohibiting,
among other things, words, letters, and "universally recognized symbols" in art that were
permitted to be displayed in its public rights-of-way. Plaintiffs argue that these unwritten
policies or customs of the City violated the First Amendment by requiring evaluation of
the content of the private art, limiting discourse based on content and subject-matter, and
permitting the use of standardless and unbridled discretion.7
7 Plaintiffs do not contend that a person with final policymaking authority acting on behalf of the
City caused the denial of their 2021 request to paint an "All Lives Matter" street mural.
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Importantly, Plaintiffs' 2021 request to paint an "All Lives Matter" street mural
was not denied pursuant to these City policies or practices. It is undisputed that Plaintiffs
never completed a Special Event Application or had their proposal denied by the Board
of Public Works in 2021. Both Mr. Reynolds and Mr. Rouker testified at trial that this
was because Mr. Rouker in effect prematurely "denied" Plaintiffs' request when he
incorrectly informed Mr. Reynolds that the City did not accept private proposals for art in
public rights-of-way. And Plaintiffs have made no argument that Mr. Rouker, as City
Attorney, was a policymaking official for the City nor is there any evidence to support
such a conclusion.
The Court deems credible Mr. Rouker's explanation that, at the time he responded
to Mr. Reynolds's request in August 2021, he was unaware that the City had established
procedures in place for accepting proposals for private art in public rights-of-way or that
the City had previously permitted any private individual or group to display art
(specifically, painted street murals) in public rights-of-way. We also credit Mr. Rouker's
testimony that his response to Mr. Reynolds was based on his own experience in
municipal government and his opinion that there would not be "any community" that
would permit private individuals or groups to transform city streets into billboards by
allowing them to paint their desired message onto the surface of the street, regardless of
the content of the message. Tr. at 209. While Mr. Rouker testified that he had consulted
unnamed City employees in addition to relying on his own experience in municipal
government in concluding that the City would not entertain Plaintiffs' request to paint
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words on the surface of its streets, this fact alone does not establish that Mr. Rouker's
response was the result of any established policymaking process attributable to the City.
Accordingly, in light of the documentary evidence and the testimony of the
witnesses, we hold that Mr. Rouker did not render his admittedly incorrect opinion based
on an unwritten policy or widespread City custom of denying private requests to paint
words on City streets. In addition, Mr. Rouker's personal doubts about a practice of
permitting private individuals or groups to paint words on City streets, which informed
his reaction to what he regarded as a novel question, does not establish, for purposes of
Monell, that a City policy or widespread custom or practice was the "moving force" that
caused Plaintiffs' alleged constitutional injury, namely, the denial of their request to paint
an "All Lives Matter" street mural.8
The fact that Mr. Rouker's opinion that the City would not permit private parties to
paint written messages on the surface of its streets happened to align with the City's
unwritten policy, custom, or practice in 2021 of prohibiting private art containing words
8 To the extent that Plaintiffs argue that the City had a widespread custom or practice of allowing
City employees to act as "gatekeepers" in deciding who could access the Special Event
Application process that caused the denial of their 2021 street mural request, the adduced
evidence does not support such a conclusion. The most Plaintiffs have shown is that City
employees had input in setting the agenda and exercised discretion in preparing the information
packets provided to the members of the Board of Public Works for their review before Board
meetings, but this is not evidence of a widespread custom or practice of allowing City employees
to "gatekeep" the Special Event Application process. Beyond Mr. Rouker's response to Mr.
Reynolds's request, Plaintiffs have presented no evidence of any other instance in which a City
employee prevented any group from accessing the Special Event Application process and
"[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal policymaker."
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985). No such showing has been made
here.
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or letters does not alter our conclusion that Mr. Rouker's response cannot be attributed to
the City for purposes of Monell. Even if it could, the Court previously determined that an
identical ban on private art containing words or letters in the City's 2022 Policy did not
implicate First Amendment concerns as applied to Plaintiffs. That same analysis applies
here. Plaintiffs ask the Court to reconsider that ruling based on testimony from Mr.
Rouker and the City's current Assistant Director for the Arts Holly Warren9 regarding
what Plaintiffs contend is the standardless and unbridled discretion City employees
exercised under the 2022 Policy to interpret what constitutes an "universally recognized
symbol," which discretion they contend City employees likewise exercised in 2021 in
considering private art proposals. However, Plaintiffs have adduced no evidence that
their proposed "All Lives Matter" mural was denied in 2021 because it contained
universally recognized symbols. To the extent that Mr. Rouker was aware of the red and
blue lines in Plaintiffs' design at the time he responded to Mr. Reynolds, the Court deems
credible his testimony that he did not recognize those lines as being significant symbols
in responding to Mr. Reynold's 2021 request. Thus, whatever discretion City employees
may have exercised in considering "universally recognized symbols" in 2021, it is not
relevant to our analysis here.
9 The Court reserved a ruling on Defendants' objection at the bench trial to the admissibility of
Ms. Warren's deposition testimony. Specifically, Defendants objected on the grounds that
Plaintiffs had not established that Ms. Warren was an unavailable witness, and further, that her
testimony was irrelevant to the legal issues remaining because she did not begin working for the
City until September 2021, after Plaintiffs' 2021 street mural request had already been denied,
and thus, has no personal knowledge of the manner in which the City considered encroachment
requests prior to her tenure. The Court agrees that Ms. Warren's deposition testimony, even if
admissible, is not relevant to the remaining legal issues.
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For these reasons, we hold that Plaintiffs have failed to establish that any policy or
widespread custom or practice of the City was the "moving force" behind any
constitutional deprivation related to the denial of their 2021 request to paint an "All Lives
Matter" street mural. Their Monell claim therefore must be denied.
II. 	Individual Defendants
Plaintiffs' post-trial briefing was limited only to their Monell claim against the City
and does not address any claims against Mr. Wason and Mr. Rouker in their individual
capacities or respond to Defendants' arguments on these claims. As the Seventh Circuit
has frequently observed in reviewing summary judgment rulings, "[j]udges are not like
pigs, hunting for truffles buried in [] the record." Albrechtsen v. Bd. of Regents of Univ.
of Wisc. Sys., 309 F.3d 433, 436 (7th Cir. 2002) (internal quotation marks and citation
omitted); see also Williams v. Bd. of Educ. of City of Chicago, 982 F.3d 495, 510 (7th
Cir. 2020) ("[A]s we have said on many other occasions, it is not the role of the court to
search the record to find support for a party's assertion."); Corley v. Rosewood Care Ctr.,
Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir. 2004) ("[W]e will not root through the
hundreds of documents and thousands of pages that make up the record here to make [a
party's] case for him."). "This observation applies equally to bench trials." ProBatter
Sports, LLC v. Sports Tutor, Inc., 172 F. Supp. 3d 579, 588 (D. Conn. 2016).
It is beyond the purview of the Court to sort through the trial transcript and the
(voluminous) record to frame Plaintiffs' arguments in support of their individual capacity
claims against Mr. Wason and Mr. Rouker. Accordingly, we construe Plaintiffs' omission
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of any discussion of these claims in their post-trial briefing as signaling their
abandonment of such claims.
Even if not abandoned, Plaintiffs' individual capacity claims would fail on their
merits. Regarding Mr. Wason, Plaintiffs did not establish that he caused their claimed
injury, to wit, the denial of their request to paint an "All Lives Matter" street mural.
"Section 1983 creates a cause of action based on personal liability and predicated upon
fault; thus, liability does not attach unless the individual defendant caused or participated
in a constitutional deprivation." Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir.
1994). The evidence adduced at trial establishes that Mr. Wason never denied Plaintiffs'
request to paint their "All Lives Matter" street mural, nor did he possess the discretion to
do so. Having failed to show that Mr. Wason took any action that caused the denial of
their request to paint their "All Lives Matter" street mural, Plaintiffs claims against him
must be denied.
Regarding Mr. Rouker, Plaintiffs similarly have failed to prove that he took any
action based on any viewpoint expressed in the proposed "All Lives Matter" mural. We
credit Mr. Rouker's testimony that at the time he provided what amounted to an offhand
response to Mr. Reynolds's request, he was unaware of the prior instances when
neighborhood organizations had been permitted to paint on City streets and he harbored
the opinion, based on his knowledge and experience as a lawyer, that Plaintiffs' street
mural request was something that the City would not allow, regardless of the message
they sought to express. We regard Mr. Rouker's testimony as credible that his response to
Plaintiffs was based only on his concern that permitting private individuals to paint any
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written message would transform the surface of the City's streets into billboards, and that
his response to Plaintiffs would have been the same regardless of the message they
sought to express. In fact, Mr. Rouker emphatically denied having taken any action or
influencing any of his opinions based on his possessing a viewpoint contrary to the
proposed "All Lives Matter" message.
Accordingly, Plaintiffs have failed to prove their individual capacity viewpoint
discrimination claims against both Defendant Wason and Defendant Rouker, dictating
that these claims also be denied.
III. 	Conclusion
For the reasons detailed above, we rule that Defendants are NOT LIABLE to
Plaintiffs. Accordingly, final judgment shall enter against Plaintiffs and in favor of
Defendants.
IT IS SO ORDERED.
Date: 	_________________________	3/12/2026	_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
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Distribution:
William Bock, III
KROGER GARDIS & REGAS
wbock@kgrlaw.com
Keith Andrew Butler
Kroger Gardis & Regas, LLP
kbutler@kgrlaw.com
Cassie Nichole Heeke
Church, Church, Hittle and Antrim
cheeke@cchalaw.com
Liberty L. Roberts
CHURCH CHURCH HITTLE & ANTRIM (Noblesville)
lroberts@cchalaw.com
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