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Saturday, February 24, 2024
Courthouse News Service
Saturday, February 24, 2024 | Back issues
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Cops Can’t Always Be TV Stars, Judge Says

HOUSTON (CN) - Texas lawmen who let a reality TV crew film their raid of a suspect's home may have violated the woman's civil rights, a federal judge ruled.

Perla Carr says she woke up to the sound of someone breaking into her house around 10:15 p.m. on Sept. 22, 2011.

"The intruders called Perla out of her bedroom and when she came out of the bedroom there was at least one gun with laser sights pointed at her chest by law enforcement officers with Precinct 4, Montgomery County, Texas," Carr claims in her Sept. 22, 2013 federal lawsuit.

Montgomery County is part of greater Houston.

The officers searched every room and arrested Carr's son on a charge of felony marijuana possession, the 62-year-old Carr says in the lawsuit.

"Perla was put into handcuffs and made to sit in a lawn chair outside the residence," according to her complaint.

Carr claims that deputy constable Eric McHugh, at the direction of his bosses, wrote a bogus affidavit stating that the officers saw marijuana through a bedroom window and smelled it.

Based on the phony affidavit, a judge signed a search warrant that arrived two hours after the raid, Carr claims.

Carr and her son were charged with felony marijuana possession. Carr's case was dismissed for lack of evidence. After an unsuccessful motion to suppress evidence, Carr's son pleaded guilty.

"Sometime after Perla's case was dismissed in her favor, Perla discovered a video on YouTube of the defendants breaking into her home with a crowbar through the front door. ... The video was for a reality television show called 'Texas Takedown' and is currently available to view on the Internet," the complaint states. "All defendants were aware of the filming of the incident involving Perla and 'Texas Takedown.'

"Also, the recently discovered video shows Constable Hayden talking on the phone to DA [Brett] Ligon prior to the crowbar break-in, who advises Constable Hayden to 'force entry.'"

Carr sued Montgomery County, its District Attorney Brett Ligon, its Precinct 4 Constable Kenneth "Rowdy" Hayden, Precinct 4 Chief Barry Welch and three other deputy constables.

She claims the officers violated her Fourth Amendment rights by bringing a third party cameraman into her house and conducting a warrantless raid.

U.S. District Judge Gray Miller declined to dismiss the case on Monday.

Miller cited the U.S. Supreme Court ruling in Wilson v. Lane, which states that it is "a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant."

But at this early stage of the case, Miller punted on whether the television crew inclusion violated her rights; he focused on how Wilson v. Lane applies to her warrantless search claims.

In their dismissal motion, the officers claimed they are entitled to qualified immunity, while District Attorney Ligon pressed for absolute immunity.

Under the qualified immunity doctrine, police cannot be held liable unless they violated a clearly established law a reasonable person would know about.

Absolute immunity shields public officials from criminal prosecution and civil liability if they are acting within the scope of their official duties.

Because Carr alleges the officers detained her at her house without probable cause and lied about the evidence to obtain a warrant after the fact, Miller found she had raised sufficient evidence to defeat the officers' immunity appeals.

"Plaintiff points to specific facts that she alleges were fabricated: that the officers could see and smell marijuana in the home before they went inside, that deputies smelled marijuana, and that deputies were met at the door by plaintiff and her former co-defendant. Plaintiff has met the pleading burden to establish a violation of her well-settled constitutional right to be free from unreasonable searches," the 28-page ruling states.

Carr's efforts to hold Constable Hayden liable as a supervisor also survived.

In an exhibit, Carr included "Texas Takedown" footage of Montgomery County officers raiding other homes, searches she claims Hayden supervised.

"Plaintiff's pleadings are further supported by the fact that Hayden's conduct does not appear to be mere negligence or gross negligence, but intentional, as Hayden is featured throughout the scenes and interviews depicted in the footage," Miller noted.

Miller did, however, dismiss Carr's claims against Ligon, finding "a prosecutor's initiation of a prosecution and the act of prosecuting an individual are all entitled to absolute immunity."

As for Montgomery County, Miller dismissed all claims against it except for Carr's allegations that its officers brought a third party to her home.

Montgomery County Attorney J.D. Lambright did not respond to a request for comment.

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