Jail for Breathing While Brown in Texas
WACO, Texas (CN) - A Texas sheriff threw two Latino men into jail for 39 days "with no charges, no hearing, and no probable cause" and seized the $14,000 they had saved up to buy a new car, the men claim in Federal Court.
Roberto Moreno-Gutierrez and Jaime Moreno-Gutierrez sued Hill County, the Hill County Sheriff's Department and the Texas Department of Public Safety, in Federal Court. Hill County, whose seat is Hillsboro, is between Waco and Dallas.
"On March 31, 2011, plaintiffs Roberto Moreno-Gutierrez and Jaime Moreno-Gutierrez left their home in Killeen, Texas and were traveling to a car dealership in Plano, Texas to purchase a vehicle, specifically a 2007 Nissan Maxima Hybrid Electric Vehicle," the complaint states.
"Defendant Jaime Moreno-Gutierrez, having sold a prior vehicle, a 2004 GMC Envoy, for nine thousand and no/100ths ($9,000.00) dollars, part cash and part check and combining his money with a loan of four thousand and no/100ths ($4,000.00) dollars, had gathered together over fourteen thousand and no/100ths ($14,000.00) dollars in cash and checks for the purchase, which is confirmed by Hill County Jail property receipts."
The men claim Texas State Trooper Carl R. Clary pulled them over, driving a K-9 unit.
"The trooper provided no traffic violation information or reason for the stop to the plaintiffs," the complaint states. "The trooper requested driver licenses from both plaintiffs, which he then took to his patrol unit. Upon returning, he requested to search the vehicle. Consent was given, and he then brought out his dog. After a search, the dog was put in its kennel. No drugs or drug paraphernalia were found in the vehicle or on the plaintiffs.
"The officer used a translator apparatus to translate his questions but did not translate the Spanish responses into English. He inquired as to the money, and plaintiffs explained where it came from and why they had legal possession.
"There was simply no indication of wrongdoing. Nevertheless, Trooper Clary seized the money and waited for backup. After 20 minutes, the plaintiffs were taken to another squad car and were told they were going to be interviewed where it was quiet. Even though there was no sign from the K-9 and, therefore, no probable cause, the arriving officers tore apart the vehicle looking for money or drugs that did not exist.
"At the Hill County Sheriff Department, the plaintiffs were never handcuffed, never Mirandized and never told they were under arrest; rather, they were asked where they were from. The money was counted, and they were then booked into Hill County Jail for what jail documents call pending charges pursuant to 'money laundering.'"
So began their odyssey in Hill County Jail: an ordeal with a scant paper trail.
"The Texas Department of Public Safety Officer never filed a Probable Cause Affidavit," the complaint states. "There was no warrant; there is no record of the plaintiffs being brought before a magistrate; there is no record of a bond hearing; and no bond was ever set by Hill County authorities, all of which has been was confirmed by FOIA requests and USDOJ FBI CJISD Reports."
The plaintiffs say their families scraped together money to pay for their defense, and retained Peek & Toland on April 6, 2011.
"Between April 6, 2011 and April 12, 2011, counsel made several calls to the Hill County Sheriff Department/Jail and was told they had no information and to call DPS Officer Clary or the district attorney," the complaint states.
"On April 12, 2011, counsel sent a request to the Waco, Texas office of the Texas Department of Public Safety for contact information on the detective assigned to the case for copies of the probable cause affidavit and arrest warrant or offense report. None was provided.
"There was no cause number, offense report, warrant, or probable cause affidavit, defense counsel for plaintiffs had no reference for their requests for bond or bond hearing.
"Between April 12, 2011 and April 25, 2011, counsel, in a series of calls and visits, pointed out to the jailers there were no charges; no offense report; no probable cause affidavit on file; and plaintiffs were being held more than 72 hours in violation of Texas Code of Criminal Procedure, Section 17.033(b).
"Counsel was told to contact the arresting officer or the office of district attorney. On another occasion, counsel was told there was an 'ICE hold detainer.' The 48 hours passed and plaintiffs were not released. The FOIA request reveals no ICE hold detention (Form I-247) notice during this time." (Parentheses in complaint.)
After the plaintiff's attorney sent a letter to State Trooper Clary asking for information about their charges and did not get a response, he filed a motion with the Hill County DA's office for an examining trial, and another motion with Hill County's district clerk, seeking information and/or a case number.
Again there was no response, plaintiffs say.
"On May 9, 2011, (the first time immigration documents showed up in the FOIA file), ICE sends an immigration warrant, at which time immigration officials were told no charges were going to be pursued and an immigration bond was set and paid," the complaint states. "Plaintiffs were released after 39 plus days of incarceration with no charges; no hearing; and no probable cause, all in violation of state and federal laws and constitutional requirements.
"All authority to continue detention under the immigration detainer or state law had expired 36 days earlier. It was defendants' legal duty to immediately release plaintiffs.
"Nevertheless, defendants continued to imprison plaintiffs, without legal authority, for approximately 39 days.
"During this 39-day detention, both plaintiffs, their counsel and plaintiffs' family members protested to HCDF employees that they were entitled to release. HCDF employees responded by stating that they would remain in custody under the federal immigration laws.
"Plaintiffs had no opportunity to appear before a judge to seek release or to learn the reason they were deprived of his liberty. Plaintiffs had no opportunity to post bond."
The plaintiffs seek damages for civil rights violations, false imprisonment, negligence, intentional infliction of emotional distress, and negligent supervision, training and retention.
They are represented by Cary Toland of Brownsville.
Trooper Clary is not a party to the complaint.