Montwood Protest and Other Civil Rights Issues
by NPT Staff
Posted on November 14, 2005
The Texas Civil Rights Project, according to its website [link], "promotes racial, social, and economic justice through education and litigation. TCRP strives to foster equality, secure justice, ensure diversity, and strengthen communities."
And it's in the process of establishing an office in El Paso, where the agency has handled many cases, the most high-profile of which should be familiar to El Pasoans -- the lawsuit against the El Paso Police Department stemming from the way it handled the student demonstrations at Montwood High School. [link]
That lawsuit has been settled recently, according to Jim Harrington, the project director. One of the most significant elements of the settlement may be bringing in an independent expert to assess the police department.
According to the Web site, the project has handled more than 700 cases, published seven Human Rights reports on issues such as hate crimes and the death penalty, compiled five “self-help” manuals, published 300 opinion editorials in Texas newspapers, given 200 speeches and talks on civil rights, and conducted community and lawyer trainings for more than 22,000 persons.
"We have sued over every kind of misconduct in every part of Texas -- city police, sheriff deputies, Department of Public Safety officers, and Border Patrol agents," states the site. "Because of our work, jails in Hidalgo, El Paso, Henderson, Tom Green, Williamson, Travis, Bexar, Dallas, and Brown Counties do much more now in preventing inmate suicide, providing interpreters for deaf prisoners, protecting vulnerable inmates from sexual assault, administering HIV medications, and making them accessible for inmates with disabilities."
Newspaper Tree interviewed Harrington about the project's background, his plans for the El Paso office, and his thoughts about the civil rights challenges to be faced here.
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Newspaper Tree: Describe the TCRP. What is the mission statement?
Jim Harrington: Basically, we do education and litigation to bring about civil rights and economic and social justice.
NPT: What are some of its biggest successes, and how might we have heard about the TCRP in El Paso ?
Harrington: We've actually done some fairly big cases in El Paso, in different contexts. We did two disability cases and we just settled the Montwood police case. The first big one that had national implications was to create a ballot or begin the idea of changing the ballot so it was accessible to blind voters ... we started that in El Paso and eventually settled in some other places, and now it's a national mandate.
We also did a series of lawsuits against Cinemark, at Tinseltown, to move their wheelchair seating to the middle of the theater, instead of way in the front. We won that case initially. On appeal we lost it, but even though we lost the battle we won the war ... the state changed the requirements for theaters and now they have to be built that way
We've done other litigation out there, a number of other disability cases. I also represented a gay man who was brutally beaten in jail.
NPT: Can you describe that case?
Harrington: It was a kid, a small guy, who was obviously gay. They're supposed to classify prisoners, evaluate them to decide whether they may beat up people or be subject to predatory inmates. So they put this kid, obviously gay, effeminate and small, with a guy who was big and in there for assault and of course he assaulted the kid -- even though his mother had warned the jailer.
NPT: A lot of your cases deal with disability issues, in various ways. Describe your application of disability laws.
Harrington: We have done a lot of disability cases as far as jail ... We've tried to use the ADA to get where we wanted to go because the traditional civil rights laws we used to use have been weakened significantly by the Fifth Circuit Court of Appeals. When I started doing suicide cases in West Texas the ADA was not passed, and we were doing it under traditional civil rights law and it was getting harder and harder.
Under traditional civil rights law, when you sue a jail you have to sue the individual officer and you have to figure out if you can sue the county. The individual officer is protected by good faith immunity; even if he did something wrong, as long as it was in good faith, he's not liable. The next step is, can you make the county liable? To do that you have to find a policy that led to or caused the suicide. And that was hard to do. Under the ADA you can take an incident and say this particular incident, even if they had a policy, they did not accommodate the person who had the disability and therefore the county is liable. So that is how we've been doing it, and we've done it on other issues
Another one we've done in the jails has been HIV issues that come up. One is medication, and one is making sure people with HIV are in programs the jails have. Sometimes jails have diversion program. Let's say you're in jail for DWI -- some counties might put you in a work program ... we had one case in Brown County where they wouldn't let someone who was HIV-positive into a diversion program. That's something you wouldn't have been able to win under traditional civil rights law. Another example is making medication available; some counties would not provide HIV medicine because it was too expensive
When you sue some of these counties ... the word gets around pretty fast that this particular jail has been sued.
NPT: Other jails alter their behavior?
Harrington: Yes, definitely.
NPT: Why disability cases? Other than as an avenue to address certain issues?
Harrington: They're important to do, especially for people with disabilities. We did that in El Paso for access issues, for example. We sued UTEP once.
NPT: Talk about Montwood. When was it settled?
Harrington: Just within the last week (first week of November), the judge signed off on it. We went to mediation in August, spent a whole day ... we've been getting ready to sign the papers and all that stuff.
NPT: What was the settlement?
Harrington: There was, I think the total amount is close to $200,000 or a little bit under. That covers everything -- damages suffered by client, court costs. In addition, the city agreed to bring in a police practices expert to evaluate and offer suggestions to the city of El Paso .
NPT: That sounds significant.
Harrington: It is. Jack Ryan is his name. He's very well respected. And Socorro is going to use him as well.
NPT: Why El Paso, and why now? Do we have a particular problem with police, and if so, to what do you attribute that?
Harrington: Yes, El Paso has a problem with the police, but every jurisdiction in the country has a problem with the police. The only question is the degree. El Paso in my opinion has a larger problem with police than many other jurisdictions.
One of the things I learned in the Montwood litigation is that it seems like one of the major issues is lack of a coherent and unified disciplinary process. What has happened historically there is that discipline was left to the individual divisions within the police department. So what would happen is, let's say you had an assault on a civilian. Well, the patrol division might assign a penalty different than the undercover division. The net result is the police union would come back and, let's say somebody got a six-month suspension, (the union) would say, 'Look in the other division; it's only a three-day suspension, so it's not fair.' The effect of it was chaos ... it also reduced discipline to the lowest common denominator. So there was no strong message being sent out that this sort of behavior is unacceptable. The message that came out was, 'Fight it and you can get it reduced.'
NPT: The scenarios you're describing, how did you assess them?
Harrington: I got it from doing the depositions of (then-Chief) Carlos Leon and (Senior Administrative Officer) Peter Pacillas. He was in charge of the police in the Montwood incident. That's how I actually came across it. I knew from doing research there was an inordinate number of complaints filed and of course they're not all adjudicated, or not adjudicated well. It wasn't until the deposition I began to understand what was going on.
NPT: How do you measure the number of complaints to assess whether the number here is inordinate?
Harrington: There are no uniform definitions or reporting standards used. It's information from police departments around Texas and what I've read in reports, that's what I based my judgment on. It was the number of complaints that force was used. I can tell you it is a matter of practice everywhere to minimize the number of complaints filed and redefine them if you can. So if it was an allegation of physical abuse you could say it was a violation of procedure. Still, when the smoke cleared with regard to statistics I saw with regard to El Paso that the complaint of use of force was very high in relation to other departments. And I made that statement repeatedly and no one from the police department has ever challenged it.
NPT: I've heard anecdotally that El Paso's police force is relatively young. Is that a factor?
Harrington: It does play into it. One of the problems you have anywhere with young officers is training them how to deal with concrete situations. Quite often you're talking about how to de-escalate a situation to where it doesn't degenerate into violence. That is a problem that younger people have for lack of experience, they have a different sense of their own machismo. Dealing with these issues is something that's picked up by experience. The problem with a young police force is that there are not enough veterans on the street who can work with the younger ones ... to teach the kind of stuff that really goes on with experience that you can learn by having veterans supervise. This is true in Austin also, the younger the force the harder it is to pass along the interpersonal dynamics of dealing with people. There's an inverse proportion between knowing that and not having to use force
Also, they have fear. Cops are afraid when they're young. They don't know what's coming and they know it's dangerous ... and sometimes that can cause them to overreact too. I don't want to give the impression in these comments that cops have bad will. I think really what happens is you have people with good will, but the problem is the training and the police culture that exists, and until that police culture changes the young people won't change.
NPT: Is there anything particular to El Paso that would make your work different here -- for example, border and immigration issues?
Harrington: Obviously. We have an office already in San Juan in South Texas . We deal with a significant number of border issues there too. The Border Patrol of course being one of the primary ones. And the enforcement of local cops of enforcement issues.
NPT: Describe the El Paso office as it is now and what you hope to see.
Harrington: We have two staff people in El Paso, a community organizer and a person working. We have office space, we set up in the TRLA (Texas Rural Legal Aid) office, and the person there does basically only TRLA work, with abused non-documented immigrant women in abusive marriages. [link] That is part of our overall program around the state. Where I really want to go is make it a full-fledged civil rights office, which can handle any kind of civil rights case, and not only in El Paso but the 15 counties near El Paso. That whole area has never had a civil rights office, to deal with the full array of civil rights issues that come up
NPT: Isn't there an ACLU office here? How does your ogranization interact with the ACLU?
Harrington: There is an ACLU chapter there, but it doesn't maintain an office with lawyers and a full time staff. I would say on a number of issues we have the same views, but when it comes down to allocating priorities we can't take every civil rights case that comes up. We only take about 5 percent. We have to prioritize and what we try to do is take cases that support community organizing around human rights issues or cases that make systemic change. The three big cases I mentioned in El Paso -- the theater seating, the ballots for the disabled, and Montwood -- were all issues around which there was community organizing. So those were ideal situations in that sense; when you have the ability to support community organizing and add strength it creates political power.
El Paso offers a good example: after we did a couple cases on disability rights, the county housing authority was trying to figure how much money to give toward disability issues, and the advocates came and said 'We want more than required by federal law' and they got it … the reason the County Commissioners listened to them is they were organized. And they knew they were willing to go to court to enforce the law. And that's what we try to do.
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