CBP settles with women in lawsuit on rights violations in Havre

U.S. Customs and Border Protection has reached an out-of-court settlement with two women who said their Constitutional rights were violated when a Border Patrol agent detained and questioned them when he heard them speaking Spanish in a Havre convenience store.

The monetary amount of the settlement was not released.

Ana Suda and Martha "Mimi" Hernandez filed a lawsuit alleging their their Fourth and Fifth amendment rights guaranteed by the U.S. Constitution were violated by Agent Paul O'Neal detaining them and questioning them simply because they spoke Spanish.

The two sisters, who were born in Texas and California and had been living in Havre for several years when the incident occurred, later they said they left town because of the backlash they received for filing the lawsuit.

"We stood up to the government because speaking Spanish is not a reason to be racially profiled and harassed.  I am proud to be bilingual, and I hope that as a result of this case CBP takes a hard look at its policies and practices," Suda said in the ACLU press release issued Tuesday. "No one else should ever have to go through this again."

"CBP's behavior was unconscionable and illegal, but sadly not uncommon. This agency must be held accountable," Cody Wofsy, a staff attorney with the ACLU's Immigrants' Rights Project, said in the release.

"As if the racism they experienced at the hands of CBP agents were not enough, our clients also bore the brunt of local backlash as a result of coming forward. They both ultimately left Havre for fear of their families' safety," ACLU of Montana Executive Director Caitlin Borgmann said.

CBP denies liability

A statement from Customs and Border Protection quoted the settlement that it in no way is "an admission of liability or fault on the part of the United States, its agents, servants, or employees, and it is specifically denied that they are liable to the plaintiffs."

The statement also says the agency is committed to fair, impartial and respectful treatment of everyone it deals with and cited CBP's Policy on Nondiscrimination in Law Enforcement Activities and all other Administered Programs. That policy prohibits the consideration of race or ethnicity in law enforcement, investigation, and screening activities, in all but the most exceptional circumstances, the statement said.

The statement also said CBP's Standards of Conduct includes prohibitions on bias-motivated conduct and explicitly requires that "Employees will not act or fail to act on an official matter in a manner which improperly takes into consideration an individual's race, color, age, sexual orientation, religion, sex, national origin, or disability, union membership, or union activities."

"CBP stresses honor and integrity in every aspect of our mission, and the overwhelming majority of CBP employees and officers perform their duties with honor and distinction, working tirelessly every day to keep our country safe," the statement said. "CBP officers and agents are trained to enforce U.S. laws uniformly and fairly and they do not discriminate based on religion, race, ethnicity or sexual orientation."

Detained for speaking Spanish

But the lawsuit alleged that after O'Neill heard Suda and Hernandez speaking Spanish while they were waiting in line to buy milk and eggs, he approached them and after they said hello to him, commented on their accents and asked where they were born.

Hernandez, who was born in California, moved to Montana in 2010 and decided to live in Havre, the lawsuit said. Suda, who was born in Texas, moved to Havre in 2014.

O'Neal asked to see their identification and refused to let them pay for their purchases until they did so, the lawsuit says, and then continued to question them outside by his patrol vehicle after they presented him with valid Montana driver's licenses.

The lawsuit said his actions violated their constitutional right to due process 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.

According to the complaint, the agent's supervisor confirmed that French speakers would not be similarly detained.

O'Neill and later his supervisor made it clear through their words and actions that the women weren't free to leave the parking lot, the lawsuit said.

After the agent questioned Suda and Hernandez for about 35 minutes - Suda recorded the interview - Suda posted on her Facebook page that "I recorded him admitting that he just stop(ped) us because we (were) speaking Spanish, no other reason. Remember do NOT speak Spanish sounds like is illegal."

More comes out during court proceedings

Through the lawsuit, it was revealed that local CBP agents have engaged in a longstanding pattern of abusive seizures and investigations, the ACLU release said. 

  "Agents from the Havre Sector have repeatedly targeted Latinx individuals without justification, often based on their race," the release said. "One such incident led to a published Ninth Circuit opinion holding that CBP agents illegally detained a group of men in Havre in 2006."

  The Nation sent a correspondent to Havre to report and printed an extensive story in 2005 about the increased presence of Border Patrol agents in the area after 9/11, and concerns about profiling Amtrak passengers.

In materials produced as a result of the lawsuit, CBP agents admitted they routinely profile non-white individuals in the Havre Sector, the ACLU release said. 

"We have a lot of agents here, and nobody really has much to do," the release quotes a CBP supervisor as saying.

Evidence uncovered in the suit also revealed that O'Neill was a member of the now defunct "I'm 10-15" Facebook group where CBP agents joked about the deaths of migrants, discussed throwing burritos at Latino members of Congress visiting a detention facility in Texas, and posted a vulgar illustration depicting U.S. Rep. Alexandria Ocasio-Cortez engaged in oral sex with a detained migrant, the ACLU release said.

Through the discovery process, O'Neill also handed over a number of inflammatory and racist text messages confirming his anti-immigrant bias, it added.

ACLU: Will continue to press on the issue

ACLU said in its release that the settlement of the lawsuit will not end the issue for the organization. Under administration of President-elect Joe Biden, the ACLU will continue to hold the federal government and the Department of Homeland Security accountable to the people, the release said.

Within the first six months of the new administration, the ACLU wants to see President-elect Biden:

• Ensure that all CBP officials uniformly comply with full Fourth Amendment standards.

• Eliminate all border patrol permanent interior checkpoints.

• Reduce the number of border patrol agents by 50 percent.

• Direct DOJ to revise its "Guidance Regarding the Use of Race by Federal Law Enforcement Agencies," by prohibiting any discriminatory profiling without exception.