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First amended complaint and jury remand in Gerald v. Oklahoma Dept. of Public Safety
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
Civil Action No. CIV-99- 676R
(1) ROSSANO V. GERALD, on behalf of himself and as next friend for
(2) GREGORY Q. GERALD, a minor,
Plaintiffs,
v.
(1) OKLAHOMA DEPARTMENT OF PUBLIC SAFETY,
(2) BOB A. RICKS, in his official capacity as Commissioner of Public Safety,
(3) GOVERNOR FRANK KEATING, in his official capacity as Chief Officer of the Oklahoma Department of Public Safety,
(4) GARY ADAMS, in his official capacity as Chief of the Highway Patrol Division of the Oklahoma Department of Public Safety,
5) BRANSON PERRY, individually and in his official capacity as an Oklahoma State Trooper,
(6) RUSSELL KNOKE, individually and in his official capacity as an Oklahoma State Trooper,
(7) BOB COLBERT, individually and in his official capacity as an Oklahoma State Trooper,
(8) JIM MCBRIDE, individually and in his official capacity as an Oklahoma State Trooper,
Defendants.
I. Nature of the Case
1. Plaintiffs, two black citizens of the United States, bring this lawsuit seeking declaratory, injunctive and monetary relief to redress the injuries they suffered as a result of the defendants' racially-based detention, seizure and search of them in mid-August 1998. In the manner described herein, defendants, under color of state law, detained, seized and searched the car in which plaintiffs, a sergeant in the United States Army and his twelve-year-old son, were traveling, on the basis of their race. Defendants' actions were intentional and violated the Fourth and Fourteenth Amendments to the United States Constitution, the right to travel, as protected by the Commerce Clause and the Privileges and Immunities Clauses of Article IV and the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 and its implementing regulations, and 42 U.S.C. § 1983. In addition to seeking compensatory and punitive damages, plaintiffs seek declaratory and injunctive relief requiring defendants to desist from and remedy these illegal race-based practices.
2. Pursuant to the Oklahoma Governmental Tort Claims Act (Title 51, Oklahoma Statutes, Sections 151 et seq.), Plaintiff Sergeant First Class (hereafter SFC) Gerald filed a tort claim against the State of Oklahoma. That claim (Risk Management No. 990366) was denied on October 21, 1998. In this case, plaintiffs do not assert the state tort claims.
II. Jurisdiction and Venue
3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, and 2201.
4. Venue is proper in the Western District of Oklahoma, as defendant Oklahoma Department of Public Safety is headquartered there. 28 U.S.C. §1391(b).
III. Parties
A. Plaintiffs
5. Plaintiff Rossano V. Gerald is a citizen of the United States, a black male of Panamanian descent, and a sergeant in the United States Army, currently stationed in Korea. SFC Gerald received a B.S. in Marketing and Management Studies from the University of Maryland, College Park, on May 22, 1999.
6. Plaintiff Gregory Q. Gerald is a citizen of the United States, a black, male minor and resident of Indiana. At the time of the incident herein described, Gregory was 12-years-old, and had completed the 6th grade. Gregory is the son of SFC Gerald. Gregory sues through his father and next friend, Rossano V. Gerald.
B. Defendants
7. Defendant Oklahoma Department of Public Safety (DPS), headquartered in Oklahoma City, Oklahoma, is in charge of patrolling Oklahoma state highways through its Highway Patrol Division. The Oklahoma Department of Public Safety receives federal funds for drug interdiction through the Department of Justice's Drug Control and System Improvement Grant Program, pursuant to 42 U.S.C. § 3751. Upon information and belief, DPS further receives funds through federal other federal programs. As a recipient of federal funds, DPS is required to conduct its activities in a racially non-discriminatory manner, pursuant to Title VI of the Civil Rights Act of 1964 and its implementing regulations, including 28 C.F.R. § 42.1.1 et seq.
8. Pursuant to 47 Okl. St. § 2-101 et seq., Defendant Bob A. Ricks serves as the Oklahoma Commissioner of Public Safety, responsible for, among other things, the control, supervision, operation and administration of the DPS, and for observing, administering and enforcing the provisions of the Highway Safety Code and all laws regulating the operation of vehicles or the use of the Oklahoma highways. Defendant Ricks is further responsible for the appointment of deputies, subordinates, officers, investigators, and other employees as may be necessary to implement the provisions of the Highway Safety Code. Defendant Ricks is sued in his official capacity.
9. Pursuant to 47 Okl. St. § 2-101(b), Defendant Governor Frank Keating serves as Chief Officer of the Oklahoma Department of Public Safety and the Commissioner of Public Safety is responsible to him for, among other things, executing his lawful orders, with regard to the functioning of the DPS. Accordingly, Defendant Governor Keating has final authority and responsibility for the operation of the DPS. Defendant Governor Keating is sued in his official capacity.
10. Pursuant to 47 Okl. St. § 2-105, Defendant Gary Adams serves as Chief of the Highway Patrol Division, which has primary law enforcement authority respecting traffic-related offenses upon the National System of Interstate and Defense Highways. 47 Okl. St. § 2-117. Defendant Adams is responsible for, among other things, control, supervision, operation and administration of the Oklahoma Highway Patrol Division. Defendant Adams is sued in his official capacity.
11. Upon information and belief, defendant Trooper Brandon Perry, sued here in both his individual and official capacities, is a white male and resident of Oklahoma who, at all times pertinent to this action, has been employed by the Oklahoma Department of Public Safety, in the Highway Patrol Division, as an Oklahoma State Trooper. All actions taken by Trooper Perry while working as an Oklahoma State Trooper were taken under color of state law.
12. Upon information and belief, defendant Trooper Russell Knoke, sued here in both his individual and official capacity, and who also participated in the detention and search of plaintiffs, is a white male resident of Oklahoma, who, at all times pertinent to this action, has been employed by the Oklahoma Department of Public Safety, in the Highway Patrol Division, as an Oklahoma State Trooper. All actions taken by Trooper Knoke while employed as an Oklahoma State Trooper were taken under color of state law.
13. Upon information and belief, defendant Trooper Bob Colbert, sued here in both his individual and official capacity, and who participated in the detention and search of plaintiffs, is a white male resident of Oklahoma, who, at all times pertinent to this action, has been employed by the Oklahoma Department of Public Safety, in the Highway Patrol Division, as an Oklahoma State Trooper. All actions taken by Trooper Colbert while working as an Oklahoma State Trooper were taken under color of state law.
14. Upon information and belief, defendant Trooper Jim McBride, sued here in both his individual and official capacity, and who participated in the detention and search of plaintiffs, is a white male resident of Oklahoma, who, at all times pertinent to this action, has been employed by the Oklahoma Department of Public Safety, in the Highway Patrol Division, as an Oklahoma State Trooper. All actions taken by Trooper McBride while working as an Oklahoma State Trooper were taken under color of state law.
IV. Facts Giving Rise To This Action
15. In mid-August 1998, Sergeant Gerald, a 37-year-old member of the United States Army, was driving his red 1991 Nissan 300ZX, on his way to visit his mother, sisters and brother, aunts, uncles and cousins, along with his 12-year-old son, Gregory, for a family reunion. SFC Gerald was casually dressed, wearing a sleeveless shirt, shorts and a New York Yankees baseball cap.
16. Upon crossing the Arkansas-Oklahoma line, SFC Gerald and other motorists were met by oncoming cars flashing their lights to alert them to the presence of state troopers. SFC Gerald had already observed one trooper driving toward him in the opposite direction. Accordingly, SFC Gerald proceeded cautiously. Upon passing a second, stationary trooper, the driver of the car in front of him reduced his speed, and SFC Gerald likewise reduced his. Although SFC Gerald had been driving in tandem with the car ahead of him, a red car occupied by two white passengers, one of whom was relaxed with her feet on the dashboard, the trooper, who had turned around and initially appeared to chase both cars, soon ignored the red car and pursued SFC Gerald only.
17. A little after 1 p.m., soon after entering Oklahoma on I-40 West, SFC Gerald was pulled over by an Oklahoma State Trooper. Through the sideview and rearview mirrors, plaintiffs noticed the trooper approaching with his hand on his gun. After SFC Gerald presented his driver's license, registration and military identification, the trooper cautioned him about following the other car too closely, issued no citation or warning ticket, and let SFC Gerald be on his way.
18. Immediately after this stop, SFC Gerald exited for gas and a bathroom break. SFC Gerald paid for the gas with cash. SFC Gerald re-entered I-40 and continued a few miles down the road before he was stopped again, this time, upon information and belief, by Trooper Perry.
19. SFC Gerald had been driving in the right lane when he saw two patrol cars approaching on a ramp. He got into the left lane in order to let the troopers enter the highway. The troopers immediately pulled behind SFC Gerald in the left lane. Having been pulled over minutes before, SFC Gerald was careful to comply with all traffic laws. Nevertheless, SFC Gerald felt a little uncomfortable, given the trooper's behavior in following him closely and staring at him intently. Indeed, SFC Gerald, upon signaling and switching lanes, said to his son, Gregory, "Watch this," predicting he would be stopped again. Before SFC Gerald was permitted to leave more than two hours later, he would receive a warning ticket for failure to signal a lane change.
20. When Trooper Perry approached, he stopped at the rear of SFC Gerald's car and told him to get out of his car and to get in Trooper Perry's patrol car. Trooper Perry appeared to be unaware of Gregory's presence.
21. When SFC Gerald alerted the troopers to Gregory's presence, while being questioned by Trooper Perry as to his origin and destination, Trooper #2 approached Gregory in SFC Gerald's car and asked him to step out of the car. Trooper #2 asked Gregory, age 12, if he was carrying any weapons and patted him down. Gregory was frightened and responded truthfully, "No." He was then placed in the rear of Trooper Perry's car, while his father was in the front.
22. Trooper Perry told SFC Gerald that the reason he was stopped was because he had not signaled a lane change when he let Trooper Perry and Trooper #2 onto the highway. SFC Gerald assured him he had signaled a lane change and asked Trooper Perry how he would have been able to observe that from his vantage point on the ramp. While writing the warning ticket (upon information and belief, the ticket # is D693912) at approximately 1:40 p.m, EST, Trooper Perry asked SFC Gerald why he was nervous and distracted. SFC Gerald responded that he was not nervous, he was just upset because he had just been stopped by another trooper. Trooper Perry also asked SFC Gerald several questions concerning his point of origin, destination, the nature of his job and the purpose of his military assignment abroad. Trooper Perry mentioned that he had recently made a drug bust and asked permission to search SFC Gerald's car.
23. Through all of this, SFC Gerald politely refused to consent to a search. In keeping with the U.S. Army's Standard Operating Procedure, he informed the Trooper of his Commanding Officer's name (Captain Rhodes) and telephone number, and repeatedly requested Trooper Perry to alert him about the stop. Trooper Perry refused and even denied SFC Gerald permission to use his own cellular phone to call his Commanding Officer.
24. After receiving the warning ticket, SFC Gerald asked if he was free to go. Trooper Perry said, "No," all the while becoming more and more belligerent, particularly when SFC Gerald repeatedly requested him to contact his Commanding Officer.
25. Trooper Perry persisted in his efforts to get SFC Gerald's consent to search his car. He badgered SFC Gerald about why he was refusing consent if he had nothing to hide. SFC Gerald, while polite, refused to consent.
26. Trooper Perry asked SFC Gerald if he was carrying any weapons, contraband or anything illegal. SFC Gerald responded, "No," stating that he knew it was against the law to carry such things across state lines.
27. Based on Trooper Perry's behavior (repetitious and insistent questioning and slow, methodical handling of the ticket), SFC Gerald, believing that he had already answered Trooper Perry's questions honestly and to the best of his ability, decided to count his money to see how much he had for the remainder of the trip. Trooper Perry observed the cash and stated that SFC Gerald had a lot of it. SFC Gerald informed him that it was not a lot of money, offering that he never traveled with a lot of money because it was unsafe. In reality, after paying for the gas, SFC Gerald had $90 left. Trooper Perry never requested to count the money.
28. Trooper Perry then stated that Oklahoma law allowed him to search the car even without the owner's consent, and he mentioned that there was a drug-detecting dog in the second patrol car which had stopped.
29. Trooper Perry called for the K-9 unit. SFC Gerald insisted he and Gregory be allowed to observe the dog search. Trooper #2 instructed them not to get too close because the dog would bite. The dog who, upon information and belief, is called "George," performed an exterior search of the vehicle, under the guidance of Trooper #2. At no time did the dog "alert". He did not bark, whimper, scratch, or sit down at any location, despite Trooper #2 repeatedly patting certain areas of the car and yanking the dog's collar when he failed to alert and attempted to walk away. SFC Gerald, based upon his military experiences (assisting the military police, among other assignments), found Trooper #2's handling of the dog for purposes of the search to be highly improper and unusually suggestive.
30. At this point standing on the grass on the side of the highway and watching the troopers and the dog search the car, SFC Gerald instructed Gregory to watch the troopers because he was afraid they might try to plant illegal contraband in his car. Gregory was nervous, crying and hyperventilating, and SFC Gerald told him that everything would be alright.
31. Although the dog did not "alert", upon information and belief, Trooper #2, after patting the wheel well, claimed the dog had alerted, thus providing him a basis for conducting a full-scale search. Trooper Perry ordered SFC Gerald and Gregory back into the car. There, Trooper Perry resumed questioning SFC Gerald about drugs.
32. Trooper #2 then told Trooper Perry to get the drill. Trooper Perry got the drill and took over the search. He started drilling under the carpet at the feet of the passenger side of the car.
33. While Trooper Perry was searching the car, Trooper #2 kept watch over SFC Gerald and Gregory, who were in Trooper Perry's car. Despite the afternoon heat, upon information and belief, Trooper Perry turned off the car's air conditioner and turned on the heater or the car's fan, leaving SFC Gerald and Gregory to swelter in the 90-degree plus Oklahoma heat. SFC Gerald complained of this to Trooper #2, to no avail.
34. Trooper Perry informed Trooper #2 that he had found "something". Trooper Perry and Trooper #2 spoke privately and then accused SFC Gerald of having an illegal secret compartment in his car which contained drug residue. In reality, the compartment, which was located under the carpet at the feet of the passenger side, was a feature (a footrest) of the car. Trooper Perry then handcuffed SFC Gerald, said the dog would bite him if he tried to escape, manhandled him into his patrol car, and strapped him in. Upon observing what was happening to his father, Gregory became frightened and visibly upset.
35. After SFC Gerald was handcuffed and placed in the front seat of Trooper Perry's car, while Gregory was placed in the back seat, Trooper Perry appeared to turn off the on-board video camera and remove the tape.
36. Trooper #2 continued searching the Nissan. During the search, plaintiffs overheard Trooper Perry on the radio with Trooper #3 who, despite being informed by Trooper Perry that he was turning up nothing, instructed Trooper Perry on how to conduct a thorough search of the car, beseeched Trooper Perry not to give up, and repeatedly asked him if he needed backup support. By this point, a third unit, driven by Trooper #4, appeared. For most of the time he was there, Trooper #4 directed traffic, instructing the onlookers to keep going.
37. At one point, however, Trooper #4 moved Gregory to his car and asked him several questions, including his age, origin and destination. Trooper #2 then replaced Gregory in his car, with the drug dog.
38. Trooper #2 asked Gregory similar questions as Trooper #4. The dog was in the back of the vehicle, while Gregory was in the front passenger seat. Gregory became frightened that the dog would bite him, because the dog kept barking at him. Throughout the interrogation, Gregory was frightened and crying.
39. Over the course of the detention, which lasted more than two hours, the troopers carried out multiple searches of the car, turning up nothing. Despite this, Trooper Perry removed parts of the headliner, floorboards, carpet, and other areas, causing damage to the car later determined to be $1,089.21. Trooper Perry removed the passenger-side floorboard, claiming that the bolts looked "funny" and that they were "military bolts." According to the body shop which ended up repairing SFC Gerald's car, however, they were simply the factory-installed bolts.
40. Throughout the search, Trooper Perry and Trooper #2 accused SFC Gerald of running drugs and money laundering because of, among other things, the "large amount of cash" he had on him.
41. SFC Gerald repeatedly denied the accusations, informing the troopers that his car had recently passed inspection and had received military clearance and that, due to the sensitive nature of his military assignment requiring a secret clearance (which prevented him from providing details about his assignment), he is subject to random urinalysis testing, and would never do drugs. Trooper Perry remained unconvinced and appeared angered by SFC Gerald's refusal to provide details about his military assignment and insistence that Trooper Perry contact his Commanding Officer.
42. At one point, while SFC Gerald was handcuffed and sitting in Trooper Perry's patrol car, Trooper Perry and Trooper #2 lifted the hoods of their patrol cars, an action which had no obvious purpose other than to obstruct SFC Gerald's and Gregory's views while the searches were conducted.
43. In searching the contents of SFC Gerald's car, including his and Gregory's luggage, which was placed on the ground, searched and sniffed by the dog, the troopers found their airline tickets, which indicated Chicago as one destination. Trooper #2 questioned SFC Gerald about his business in Chicago and again asked SFC Gerald whether he used drugs. SFC Gerald again answered all the questions politely, explained that Gregory, who lived in Indiana, had flown out of Chicago, and denied using drugs.
44. At or about 3:45 p.m., EST, the troopers ceased their detention and search and prepared to let SFC Gerald and Gregory go free with nothing more than a warning ticket. Trooper #2 stated that SFC Gerald was "behaving himself now". When SFC Gerald complained that his car and his baggage were a mess, Trooper Perry stated, "We ain't good at repacking."
45. Just prior to releasing them, Trooper #2 asked SFC Gerald who would come get Gregory if they arrested SFC Gerald and impounded his car. SFC Gerald felt they were trying to intimidate him, but responded that before doing that, the troopers should contact his Commanding Officer. Upon hearing this, Gregory became more nervous and upset, crying and hyperventilating, wondering what was going to happen to him. SFC Gerald tried to calm him down. SFC Gerald later learned that Gregory had been under the impression that the troopers had confiscated their airline tickets and was concerned that he would be left stranded on the highway and that something would happen to him if they took his father away. Even after being released, for the duration of the trip Gregory remained frightened, fearing he and his father would be stopped again.
46. Immediately upon being released, SFC Gerald used his cellular phone to contact his Commanding Officer, Captain Rhodes, while leaving the site of the incident. SFC Gerald checked the time to make sure Captain Rhodes, who was in another time zone, had not left for the day. On Captain Rhodes's advice, SFC Gerald went to Fort Sill, where he immediately had the Directorate of Public Safety search his vehicle. The search was conducted by a Department of the Army-certified narcotic working dog from the Criminal Investigations Division. SFC Gerald feared the troopers might have planted drugs in his car, especially since they had raised the hoods of their cars and obstructed SFC Gerald's and Gregory's view. The dog found no evidence of drugs or contraband.
47. The actions of these Troopers violated the civil and constitutional rights of SFC Gerald and his young son, Gregory. Plaintiffs were detained and searched without any legal basis. They were shamed and demeaned as passersby observed them being detained as if they had committed a serious crime. SFC Gerald was further subjected to humiliating questioning and treatment in front of his impressionable young son. His property was damaged. He, himself, suffered tremendous physical discomfort and pain from both the handcuffs and the heat. Several days after the incident, SFC Gerald still had residual bruising. For weeks, Gregory would ask his mother why this had happened and has since grown afraid of large dogs.
48. On information and belief, the troopers singled out plaintiffs for detention, search and mistreatment based upon their black race and in furtherance of a continuing custom, policy or practice of drug interdiction, wherein persons of African descent are targeted through the use of a "drug courier profile".
49. Unless such race-based practices of these troopers are enjoined, SFC Gerald and Gregory face a realistic threat of being subjected to them again, as evidenced by their being stopped twice over a span of less than thirty minutes. Because they have relatives in Oklahoma, periodically they use and will continue to use the highways of Oklahoma for travel.
Custom, Policy or Practice
50. Defendants' continuing policy of race-based drug interdiction was deemed "[c]onstitutionally dangerous" by this Court in United States v. Williams, No CR-93-214-A, slip op. (W.D. Okla. 1194)(attached as Exhibit A). Williams involved four African-American men in two vehicles allegedly stopped for "following too close[ly]." The men had actually been driving in tandem. After finding that no traffic violation had in fact occurred and that the search of the vehicles by a dog, which turned up evidence of drugs, was conducted without probable cause, the Court held the troopers' actions were "impermissible." The Court observed:
The state vigorously resisted the Court's consideration of this manual - understandably so. The manual was received by the Court with simultaneous issuance of a protective order cloaking its contents as against non-parties to this case. Without getting into details, the Court regards the manual as a Constitutionally dangerous document, for it extols the traffic stop-cum-search omitting discussion of any reservations. The most fundamental omitted reservation is that the stop must in the first place be a genuine and honest enforcement of traffic laws rather than a pretextual conduit to a random search. The manual permits the inference that the sniff-and-search tail wags the traffic enforcement dog.
Exhibit A.
51. The troopers who carry out defendants' race-based traffic stop policy are aware of its discriminatory purpose. Trooper Plunkett, one of the troopers involved in the Williams case, testified "deprecating" the policy manual and the concept of drug profiling endorsed by the manual, stating that it could be discriminatorily applied. Exhibit A.
52. Trooper Plunkett testified that troopers rely on certain police observations and considerations in initiating drug interdiction. The Court asked in response: "What are these observations? A car with out-of-state license tags, black drivers and passengers . . .[?]" Trooper Plunkett conceded that none of those "considerations" presented any illegality or probable cause for a stop and search. The Court concluded:
Add the Oklahoma system of systematic coupling of drug interdiction to routine traffic enforcement and the unfettered discretion has a different Constitutional significance. Under the Oklahoma system as described by witnesses in this case, the joint actions of troopers and narcotics agents can be (and in this case were) targeted at cars and drivers because the authorities just do not "like their looks." Today, without any controls, the target group may be black males in cars with California plates.
Exhibit A.
53. Among other things, defendants' race-based traffic policy consists of persistent, unrelenting questions unrelated to the alleged underlying violation, over several hours, discussion of recent drug busts, the approach of more than one patrol unit and the involvement of several troopers at the scene, with the assistance of a canine unit, and with one trooper doing the primary questioning, while the other one or two or three stand guard over the motorist's shoulder. Frequently, a desk sergeant or other trooper will provide instructions by telephone as to how to conduct the search. Often, at the end of the episode, no ticket is issued.
54. Upon information and belief, defendants' policy focuses on out-of-state motorists of color.
55. Often, the troopers carrying out the policy work in conjunction with agents from the Oklahoma Narcotics Bureau or some other law enforcement agency. Exhibit A.
56. In a case which caused a national uproar and which drew allegations of racism, George Singleton, a black Rastafarian and resident of Vermont, had a DUI complaint against him dismissed after it was determined that alleged intoxicants were in fact rosemary and mullein, both legal substances. Exhibits C & D (Barbara Hoberock, The Troubles of the State Highway Patrol, Tulsa World, December 27, 1998; Omer Gillham & Stephen Pingry, Rastafarian Awaits Ruling on Dismissal of Herb Case, Tulsa World, October 2, 1998, respectively.) Oklahoma State Trooper Bud Lavender initially stopped Mr. Singleton, an herbalist with long dreadlocks, for an expired tag. Lavender discovered the rosemary and mullein in Mr. Singleton's car and arrested him, even though a field test showed that neither substance was marijuana or an illegal intoxicant. Nevertheless, Mr. Singleton remained incarcerated for 25 days and was still prosecuted. Id.
57. Thomas Hawkins, then a reserve police officer with the City of Oxnard, CA, was stopped twice within a matter of minutes by the Oklahoma Highway Patrol on May 3, 1998, for driving without a license plate. Exhibit E (Affidavit of Thomas Hawkins, August 4, 1999). During each stop, Mr. Hawkins explained that he had flown from California to Kansas City, where he met his brother who had purchased a car on his behalf. Each time, Mr. Hawkins presented his driver's license, police ID and photo, and the permit enabling him to operate the car for thirty days before purchasing a license plate. The first trooper allowed Mr. Hawkins to leave without incident. Id.
58. Mr. Hawkins was stopped again, approximately four miles down the road by another trooper, who made a U-turn when Mr. Hawkins passed him, drove up behind him, and pulled him over. When Mr. Hawkins explained that he had just been stopped by a trooper who released him, the trooper responded ominously that he knew who the other trooper was, but that the first trooper "does things differently." The troopers asked Mr. Hawkins to step out of the car while he confirmed that his vehicle was not stolen. For over an hour, Mr. Hawkins was made to sit in the front seat of the patrol car, while being observed by an armed, uniformed officer standing behind him. A large German Shepherd barked continuously at him from the back seat. Id.
59. While seated in the patrol unit, the trooper began questioning Mr. Hawkins. He informed him that the highway was a drug route and that people often fly to Kansas City in order to purchase and transport drugs back to California. When Mr. Hawkins protested that he did not run drugs and was in fact a reserve police officer, the trooper stated that people often use false identification. He also stated that in the past several months, he had recovered a substantial amount of drugs through his stops. The trooper then asked permission to search Mr. Hawkins' car. Despite being a law enforcement officer himself, Mr. Hawkins consented, fearing he would be detained longer and what might happen if he did not consent to a search. Id.
60. The trooper searched the entire car, including underneath the dashboard, the wheel well, and inside the trunk. During the search, Mr. Hawkins was deeply afraid the officers might try to plant drugs in his car. He also feared going to jail for no reason at all. After an exhaustive search of the car turned up nothing, the trooper finally allowed Mr. Hawkins to go. Id.
61. Defendants' continuing practice and policy of race-based traffic stops are known beyond the confines of defendants' domain. Attorneys John W. Coyle and J. David Ogle have received numerous calls by people (largely people of color) complaining of the actions of the Oklahoma Highway Patrol. Exhibits F & H (Affidavits of J. David Ogle, August 9, 1999, and John W. Coyle, August 19, 1999, respectively). Several of the people have complained about being stopped more than once.
62. Richard Allen, president of the Oklahoma Chapter of the NAACP, says that his organization receives complaints of racial profiling by the Oklahoma Highway Patrol at virtually every meeting. Exhibit B (Affidavit of Richard Allen, August 9, 1999).
63. Despite knowledge of this behavior, defendants have failed to keep troopers in check. In a case involving defendant Branson Perry, for example, Perry was alleged to have used excessive force in his handling of Janella Spurlock, a Rogers County sheriff's deputy, stopped for speeding en route to a shooting. Exhibit G (Linda Martin, Trooper, Deputy Incident Probed, Tulsa World, September 22, 1995).
64. Defendant Trooper Perry allegedly placed a gun to Ms. Spurlock's head, taking her to the ground. The gun was pressed in Ms. Spurlock's back causing bruising and leaving marks a quarter-inch deep. Exhibit G.
65. As in this case, the Oklahoma Highway Patrol alleged the videotape in defendant Trooper Perry's car was malfunctioning. Exhibit G.
66. Upon information and belief, defendant Trooper Perry was either not disciplined or poorly disciplined for his actions.
67. Defendant Governor Keating has complained publicly about defendants' failure to properly discipline Oklahoma State Troopers for misconduct. In a case involving charges of sexual battery against a 16-year-old girl by a trooper, defendant Governor Keating said of the failure to discipline the trooper nine months after being charged: "That is astounding. In every law enforcement agency that I know of, they are suspended subject to a determination of the facts if they are charged with a felony. It needs to be examined." Exhibit I ( Keating Surprised to Learn Accused Trooper Still Working, The Daily Oklahoman, December 17, 1998).
68. Given the strength of defendants' continuing unconstitutional policy requiring race-based traffic stops and the failure of defendants to appropriately discipline troopers and thereby discourage such behavior, plaintiffs realistically expect to be subjected again to race-based traffic stops at the hands of the Oklahoma Highway Patrol during future visits to Oklahoma.
69. Defendants' denial of a continuing practice and policy of race-based traffic stops creates a case and controversy warranting resolution by this Court.
V. Claims for Relief
Count I
Equal Protection
(Fourteenth Amendment)
(All Defendants except Oklahoma Department of Public Safety)
70. Plaintiffs repeat and reallege paragraphs 1 through 69, as if set forth fully herein.
71. Defendants, acting under color of law and in concert with one another, engaged in intentional race discrimination in their drug interdiction efforts carried out in Oklahoma along the state's highways. In so doing, defendants have caused the plaintiffs to suffer deprivation of their fundamental rights to liberty and to be free from unlawful searches and seizures, on account of their minority race and/or national origin. These actions violated plaintiffs' rights to equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States.
72. The defendants' acts were intentional and done in violation of plaintiffs' legal and constitutional rights, and have directly and proximately caused plaintiffs humiliation, mental pain, and suffering.
Count II
Unreasonable Search and Seizure
(Fourth and Fourteenth Amendments)
(All Defendants Except Oklahoma Department of Public Safety)
73. Plaintiffs repeat and reallege paragraphs 1 through 72, as if set forth fully herein.
74. Defendants, acting under color of law and in concert with one another, subjected plaintiffs to a lengthy detention and search without probable cause or reasonable suspicion to believe that any crime had been committed or that plaintiffs were carrying drugs of any kind, in violation of the Fourth Amendment guarantee against unreasonable searches and seizures. Those actions give rise to plaintiffs' claims pursuant to the Fourth and Fourteenth Amendments to the Constitution of the United States.
75. The defendants' acts were intentional and done in violation of plaintiffs' legal and constitutional rights, and have directly and proximately caused plaintiffs humiliation, mental pain, and suffering.
Count III
Right to Travel
(Commerce Clause, Article IV, and Fourteenth Amendment)
(All Defendants Except Oklahoma Department of Public Safety)
76. Plaintiffs repeat and reallege paragraphs 1 through 75, as if set forth fully herein.
77. Defendants, acting under color of law and in concert with one another, have caused the plaintiffs to be penalized and deterred in the exercise of their fundamental right to interstate travel and migration on account of their race and/or national origin. These actions violated plaintiffs' right to travel, in violation of the Commerce Clause and the Privileges and Immunities Clauses of Article IV and the Fourteenth Amendment.
78. Defendants' acts were intentional and done in violation of plaintiffs' legal and constitutional rights, and have directly and proximately caused plaintiffs humiliation, mental pain, and suffering.
Count IV Race Discrimination in Federally Funded Programs
(Title VI of the Civil Rights Act of 1964 and 42 C.F.R. §§ 101 et seq.)
(Defendant Oklahoma Department of Public Safety)
79. Plaintiffs repeat and reallege paragraphs 1 through 78, as if set forth fully herein.
80. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides:
[N]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
81. Federal regulations implementing Title VI further provide that no program receiving financial assistance through the U. S. Department of Justice shall utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.
28 C.F.R. § 42.104 (b)(2).
82. The drug interdiction methods employed by the Oklahoma Department of Public Safety discriminate against black Americans and other minority motorists traveling through Oklahoma, including plaintiffs, as described herein.
83. Defendant Oklahoma Department of Public Safety's violation of 42 U.S.C. § 2000d and its implementing regulations has caused and will continue to cause the named plaintiffs and other minorities to suffer tremendous harm and public humiliation in that they have been and will continue to be subjected to the Highway Patrol Division's continuing practice of racebased discrimination unless it is stopped.
VI. Prayer for Relief
WHEREFORE, plaintiffs request that this Court:
(a) Declare, pursuant to 28 U.S.C. §§ 2201 and 2202, that defendants' official policy authorizing Oklahoma Highway Patrol troopers, at their individual discretion and without probable cause or reasonable, articulable suspicion of criminal activity, to detain motorists for the purpose of conducting a search with the assistance of a drug-detecting dog, is unconstitutional on its face and as applied, in that it has resulted in unjustified detentions and searches, including those of plaintiffs, in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States, the constitutional right to travel on the roads and highways of Oklahoma, and 42 U.S.C. § 1983;
(b) Declare, pursuant to 28 U.S.C. §§ 2201 and 2202, that defendants have engaged in race discrimination and denied plaintiffs the equal protection of the laws, with respect to the stop and search of plaintiffs, in violation of the Fourteenth Amendment to the Constitution of the United States;
(c) Declare, pursuant to 28 U.S.C. §§ 2201 and 2202, that defendants' detention and search of plaintiffs without probable cause or reasonable, articulable suspicion to believe that a crime had been committed or was imminent, violated the Fourth Amendment's guarantee against unreasonable searches and seizures, and the Fourteenth Amendment;
(d) Declare, pursuant to 28 U.S.C. §§ 2201 and 2202, that defendants' conduct violated the rights of plaintiffs to travel interstate, in violation of the Commerce Clause and the Privileges and Immunities Clauses of Article IV, and the Fourteenth Amendment;
(e) Declare, pursuant to 28 U.S.C. §§ 2201 and 2202, that defendants have engaged in race discrimination, with respect to the stop and search of plaintiffs described herein, in violation of Title VI of the Civil Rights Act of 1964 and 42 C.F.R. §§ 101 et seq.;
(f) Enjoin defendants immediately to discontinue such race-based discrimination as described herein, and to put into place safeguards, including the maintenance of records for every stop conducted by the OSP, containing, inter alia, the name, race, reason for the stop, and whether or not a search was conducted, sufficient to ensure that such discrimination does not continue in the future;
(g) Enjoin defendants immediately to amend their continuing unconstitutional custom, policy or practice allowing troopers to detain motorists and conduct dog searches without reasonable, articulable suspicion of criminal activity;
(h) Award plaintiffs compensatory and consequential damages pursuant to Count IV, in an amount to be determined at trial, against defendant Oklahoma Department of Public Safety;
(i) Award plaintiffs compensatory and consequential damages pursuant to Counts I, II, and III, in an amount to be determined at trial, against the individual defendants, jointly and severally, in their individual capacities only;
(j) Award plaintiffs punitive damages pursuant to Counts I, II, and III, in an amount to be determined at trial, against the individual defendants, jointly and severally, in their individual capacities only;
(k) Award plaintiffs their costs and attorneys' fees incurred in pursuing this action, as provided in 42 U.S.C. § 1988;
(l) Grant such other and further relief as the Court may deem just and proper.
VII. Jury Demand
84. Plaintiffs hereby demand a trial by jury.
Respectfully submitted,
Reginald T. Shuford
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street
New York, New York 10004
(212) 5492613 Telephone
(212) 549-2651 Telecopier
_________________________
Steven M. Presson
JACKSON & PRESSON, P.C.
P.O. Box 5392
Norman, Oklahoma 73070
(405) 447-6637 Telephone
(405) 447-1452 Telecopier
Counsel for the Plaintiffs
CERTIFICATE OF SERVICE
I certify that on this ___ day of August, 1999, I mailed, by first-class postage paid United States mail, a file-stamped copy of this First Amended Complaint and Jury Demand at the following addresses: Robert G. McCampbell, Crowe & Dunlevy, 20 N. Broadway, Ste. 1800, Oklahoma City, Oklahoma 73102; and Gary James, Esq., P.O. Box 26684, Oklahoma City, Oklahoma 73126.
