Judge rules women can't get monetary relief in Border Patrol lawsuit

GREAT FALLS - A judge ruled Wednesday that two women suing U.S. Customs and Border Protection can't receive punitive or compensatory damages for what they allege was an unconstitutional detainment made specifically because they speak Spanish, and is considering arguments on other motions to dismiss.

Havreites Ana Suda and Martha Hernandez in February sued U.S. Customs and Border Protection and its commissioner, Keven McAleenan, and Border Patrol Agent Paul O'Neal along with unspecified people in their individual and official capacities, for what they said was an unconstitutional 40-minute detainment made simply because they were speaking Spanish while waiting to buy milk and eggs in a Havre convenience store May 16, 2018.

The first argument made by Assistant U.S. Attorney Chad Spaker, representing Customs and Border Protection, was that the case should be dismissed due to sovereign immunity - that a public officer or official cannot be sued for performing their duties.

U.S. District Judge John Morris ruled in favor of that motion, saying Suda and Hernandez cannot receive punitive or compensatory damages from the U.S. government for actions of an agent performing assigned duties. He dismissed those requests from the plaintiffs with prejudice, meaning they cannot refile that part of the lawsuit.

The lawsuit also requests the court to require the defendants to no longer stop or detain people on the basis of race, accent or speaking Spanish, unless it is based on a specific and reliable description of a suspect, and declare that race, accent and language cannot by themselves create a suspicion sufficient to justify seizure or detention.

Morris said the remaining motions on the case were submitted and he would consider them.

The lawsuit alleges that when O'Neal detained Suda and Hernandez, he only questioned them because he heard them speaking Spanish while they were waiting in line to buy milk and eggs. The lawsuit alleges that this action was in violation of their constitutional rights because he had no legitimate reason to detain the women and was a violation of equal protection, because the agent singled the women out based on race, relying on their use of Spanish as a justification and proxy for race.

Spraker argued that the case should be dismissed without prejudice due to the lack of proof of a possibility of future harm and the likelihood of a pattern.

He said Suda and Hernandez had both lived in Havre for a number of years, Hernandez since 2010 and Suda since 2013, and never before had any issues with the U.S. Border Patrol. He added that the likelihood of a similar issue occurring in the future is very low, with Havre only having a 3 percent Spanish-speaking population.

He said that in order for this argument to be viable and to continue the prosecution would have to have evidence of agents stopping them multiple times.

"I think that it has to be more than once," he said.

He added that the prosecution also refers to a second incident months prior to their being stopped by O'Neal when the two women were in a bar where an off-duty Border Patrol Agent, in plain clothes, sent a text message to his fellow agents notifying them of two Hispanic women were in the bar. He said it is not illegal for an agent to observe ethnicity and the incident did not result in a stop and doesn't have any weight in the case, due to a wide spectrum of things that could have theoretically happened.

Later in the hearing Spaker also referred to the women's complaint against O'Neal's supervisor, who said, when asked by the women if a French speaker would have been treated similarly, "No, we don't do that."

Spaker said that his reply could be left to interpretation and doesn't point to any policies, practices or procedures the border patrol specifically takes toward people of LatinX, a gender-neutral reference to people of Latin American descent, heritage.

American Civil Liberties Union Montana Legal Director Alex Rate, who is representing Suda and Hernadez, said that the recording Suda made during the stop proved that the agent stopped them specifically for speaking Spanish while in the store and no other reason. The video shows the agent telling the women that it was unusual to hear someone speaking Spanish in the area and that was the reason he had stopped them.

Rate said that the women, like many others of LatinX heritage, feel a strong connection and pride to their language and they should not be in fear of immigation agents stopping them. He added that the incident at the bar shows a past history of the women being singled out and the only reason they were not detained then was because one of the agents contacted knew the women. If not for that, they would have been stopped then as well, he said.

"We have the dots here," Rate said.

He added that the fact that they have lived in the area for a long period of time before having any incident is not proof it would not happen again or happen to anyone else. 

"Enough is enough," he said. 

The Havre Sector Border Patrol also has other incidents in the past which show a similar pattern, with agents detaining legal Spanish speaking citizens.

"They are trying to have it both ways," he said, adding that the case should not be dismissed because the issue needs to be addressed.

In an interview after the hearing, Rate said that Suda and Hernadez stood up for their rights and the Border Patrol should be held accountable for its actions.

He said the court has to look at the two accounts as related.

"That's something that the ACLU does, is stand up for folks that are being targeted for no other reason than their skin color or language or ethnicity," he said.

He added that the case needs to proceed to allow for a discovery period so the prosecution can collect evidence of a policy, procedure or practice of racial profiling against those of LatinX decent.

"The incident itself is troubling enough because they're engaged in utterly normal conduct that you and I do on a daily basis, shopping at the grocery store or shopping at a convenience store, and they were pulled aside," he said.

"I came out of the courtroom feeling positive and I feel like regardless of what happens with our claims for what are called injunctive or declaratory relief, we are still going to be allowed to proceed on our claims for damages against agent O'Neil and against the United States government," Rate added. "... We are looking forward to proving our claims."

Spaker declined to comment on the case.