After five years of litigation, U.S. District Judge Rodney Gilstrap recently approved of a consent decree that puts an end to an alleged "stop and seize" practice used by defendant law enforcement officers — including a district attorney — that allegedly was used to target minorities traveling through a small East Texas town.
While Gilstrap was prevented from awarding compensatory damages by a previous ruling in the case, his August 8th approval of the consent decree in James Morrow et al. v. Barry Washington et. al. puts strict conditions on the defendants' law enforcement actions including that they: record all traffic stops on video; limit those stops to 15 minutes or less; and a stipulation that they won't use drug sniffing dogs unless the plaintiff lawyers agree, among other things.
"We're real pleased with it. We had a lot of clients that were nervous to travel to this part of Texas. I think the settlement and the attention it got did a lot a good," says David Guillory, who represented a class of 800 people who sued several public officials in Shelby County and received national publicity. "And it's restirring the debate about civil forfeiture reform in this state and other parts of the country."
The decree also awarded $520,000 in attorney fees to the class counsel including Guillory, who is now litigation director of Lone Star Legal Aid, Tim Garrigan, a partner in Nacogdoches' Stuckey Garrigan & Castetter, and Stephanie Stephens, now an assistant Nacogdoches County Attorney.
"I'm happy with the outcome. I think the attorney's fees compensation is fair," says Guillory, who along with Stephens was in private practice for most of the five years the case was pending, of the decree. "But keep in mind, it is compensating me for work I did years ago."
The background to the dispute, according to the consent decree in which the defendants admit no liability, is as follows.
In 2008, the plaintiffs filed the civil rights complaint alleging they were subject to unreason able searches and seizures. The defendants include then City of Tenaha Deputy City Marshal Barry Washington, former City of Tenaha Mayor George Bowers, then Shelby County District Attorney Lynda K. Russell, then Shelby County DA investigator Danny Green and then Shelby County Precinct 4 Constable Randy Whatley, according to the decree.
According to the plaintiffs, the defendants targeted members of the proposed class for traffic stops because of their race or ethnicity and subjected them to detention, arrest, or search and seizure, without legal justification. They also allege that the defendants' interdiction program was not for legitimate law enforcement purposes but rather to "enrich their offices and themselves by seizing and converting cash and other valuable personal property they could find during the course of the illegal stop and seize practice," according to the decree.
The defendants all deny those allegations and deny that they violated the constitutional rights of the plaintiffs, according to the decree.
Washington, Russell and Whatley have since resigned from office while Green has retired from his job, according to the decree. However, those defendants are required to provide a copy of the consent decree to all future law enforcement employers over the next four years.
An interlocal agreement was also included in the decree in which non-party law enforcement officials in Shelby County agreed to adopt impartial policing policies and use recording equipment for traffic stops among other things, according to the decree.
Tom Henson, a partner in Tyler's Ramey & Flock who represents Russell, says his client decided to resolve the case because of the expense of the litigation. [See " Glitter Pencils and Frisbees: DA's Spending Questioned in Class Certification Motion" Texas Lawyer, Aug 24, 2010, page 1.]
"My client denied liability and I think the others feel the same way: they didn't do anything wrong," Henson says. "It was getting very expensive to continue with it so they decided to resolve it. That's about all I can say about it."
Robert Alderman, a partner in Lufkin's The Zeleskey Firm who represents the City of Tenaha and Washington in the case, says the consent decree speaks for itself.
"They feel like what they were doing was proper. It's a non-admission of liability," Alderman says of his clients. "There is still some pending litigation and because of that I really can't address details."
Robert Scott Davis, a partner in Tyler's Flowers Davis who represents Green and Whatley, did not return a call for comment.
Stephens says she's also satisfied with the consent decree and its approval by Gilstrap.
"Everybody worked hard in this case. And we're happy with the resolution that will hopefully benefit people traveling through Shelby County for years to come."
Garrigan regrets that the consent decree could not return hundreds of thousands of dollars and property allegedly taken by the defendants in the case. He notes that Gilstrap's predecessor on the bench, T. John Ward, ruled in an Aug. 29, 2011 decision certifying a modified class, that the plaintiffs could not receive monetary compensation as a class.
In arriving at his decision, Ward cited a then two-month old U.S. Supreme Court decision in Wal-Mart Stores v. Dukes which rejected a monetary recovery attempt by a diverse class of plaintiffs. Yet Ward allowed the plaintiffs to pursue individual claims against the defendants for monetary damages [See " Modified Class Certified in East Texas Civil Rights Case" Texas Lawyer, Sept. 5, 2011 page 1.]
"The Wal-Mart decision would have prevented the class from getting its money returned. On the other hand, Judge Ward addressed that issue very carefully and determined the members of the class could file separation actions for monetary relief," says Garrigan, who notes that six of the plaintiffs have since filed individual claims against the defendants.
The class counsel also gave credit to the American Civil Liberties Union [ACLU], whose lawyers assisted in finalizing the wording of the consent decree.
"The ACLU was very instrumental in the way that was drafted. We got more in that consent decree as far as injunctive relief than if we would have went to trial," Guillory says.
"That is the nature of our work. And no, it's not easy," says Vanita Gupta, deputy legal director of the ACLU who participated in the case. "This consent decree was significant because it's difficult to challenge civil forfeiture anywhere. This was a very important consent decree for that reason."