IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS, TEXAS

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1 Case 3:14-cv B Document 1 Filed 12/03/14 Page 1 of 20 PageID 1 David Antón Armendáriz Lance Curtright Marisol Linda Perez Juan Carlos Rodriguez De Mott, McChesney, Curtright & Armendáriz, LLP 800 Dolorosa, Suite 100 San Antonio, Texas (210) (ph) (210) (fax) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS, TEXAS JORGE MORENO VILLEGAS, PLAINTIFF, VS. UNITED STATES CUSTOMS AND BORDER PROTECTION OFFICER MARIO UNATE AND THE UNITED STATES OF AMERICA. DEFENDANTS COMPLAINT JURY TRIAL DEMANDED CIVIL NO.

2 Case 3:14-cv B Document 1 Filed 12/03/14 Page 2 of 20 PageID 2 Plaintiff, Jorge Moreno Villegas ("Mr. Moreno"), through counsel, alleges as follows: INTRODUCTION 1. This is a civil rights action brought to redress an objectively unreasonable and unlawful seizure and arrest of Mr. Moreno and offensive acts taken in connection therewith. Mr. Moreno brings suit pursuant to the Federal Tort Claims Act ( FTCA ), 28 U.S.C. 1346(b), 2671 et seq. against Defendant United States of America ( USA ). He also brings constitutional claims under the Fourth Amendment pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Mario Unate (hereinafter, the Defendant Unate ), an employee of the United States Customs and Border Protection agency ( CBP ), in his individual capacity. 2. Defendant Unate seized and arrested Mr. Moreno without reasonable suspicion or probable cause that Mr. Moreno had violated or was violating any law over which he had jurisdiction and without any warrant for the arrest of Mr. Moreno or any reason to believe that Mr. Moreno would flee prosecution for any alleged violation of the law. 2

3 Case 3:14-cv B Document 1 Filed 12/03/14 Page 3 of 20 PageID 3 3. Furthermore, Defendant Unate targeted Mr. Moreno for seizure based on ethnicity and race, pursuant to his and his agency's regular practice and policy of willful, unlawful and abusive traffic stop type seizures of Hispanics in and around central, south central, west central and north Texas, far from the border with Mexico. 4. CBP patrol agents, including Defendant Unate, regularly seize persons of Hispanic appearance off the roads and highways in Texas in plain violation of clearly established constitutional, statutory, and regulatory law against unlawful racial profiling. 5. In addition to and apart from Mr. Moreno, victims of this illegal practice have included United States citizens, lawful permanent resident aliens, and other persons. 6. Applicable constitutional, statutory and regulatory law constrains the actions of Defendant Unate for the purpose of protecting citizens and non citizens equally from unreasonable searches and seizures. 7. In this action, Mr. Moreno seeks nominal, compensatory and punitive damages for the harm he has suffered and seeks to hold the Defendants responsible for the complained of conduct. 3

4 Case 3:14-cv B Document 1 Filed 12/03/14 Page 4 of 20 PageID 4 JURISDICTION AND VENUE 8. This Court has jurisdiction over this federal civil rights action pursuant to the Fourth Amendment to the United States Constitution and 28 U.S.C. 1346(b) (FTCA) and 1331 (federal question). 9. Venue lies in this District pursuant to 28 U.S.C. 1391(b)(2), (e)(2) and 1402(b) because this is the judicial district in which a substantial part of the events or omissions giving rise to the claim occurred and Defendant Unate is a federal officer whose complained of actions were taken under color of legal authority. ALLEGATIONS 10. For purposes of his FTCA claim, on or about August 30, 2013, Mr. Moreno timely submitted an administrative complaint to the CBP as required by 28 U.S.C CBP denied that administrative complaint by letter delivered to Plaintiff s counsel on July 1, This suit is timely. THE PARTIES 11. Mr. Moreno is Hispanic. 12. Defendant Unate is a patrol agent of CBP. 4

5 Case 3:14-cv B Document 1 Filed 12/03/14 Page 5 of 20 PageID Mr. Moreno brings suit under Bivens against Defendant Unate in his individual capacity. 14. Defendant Unate is a law enforcement officer[s] within the meaning of 8 U.S.C. 2860(h). THE FACTS 15. Mr. Moreno was seized and arrested on or about December 4, 2012 at around 5 p.m. by Defendant Unate in an act of egregious racial profiling. 16. At the time of the events giving rise to this suit, Mr. Moreno was located about 60 air miles from the nearest point along the U.S/Mexico border. 17. Mr. Moreno was driving northbound on Highway 163 just south of Ozona, Texas. 18. He was driving with one companion in his vehicle by the name of Flaudio Colmenero Gomez. Mr. Colmenero is Hispanic. 19. Mr. Colmenero was sitting in the front seat of the Truck on the passenger side. 20. They were returning after a day s work laying underground pipe to a rented residence in Ozona, where they were staying. 5

6 Case 3:14-cv B Document 1 Filed 12/03/14 Page 6 of 20 PageID Highway 163 road is travelled by hundreds, if not thousands, of lawabiding persons daily, a large percentage of whom are Hispanic, consistent with the racial and ethnic diversity of the area. 22. The overwhelming majority of persons travelling this road travels it for lawful purposes. 23. The overwhelming majority of persons travelling this road consists of U.S. citizens or non citizens in lawful immigration status. 24. Mr. Moreno was driving a white Ford pick up truck with four wheels (hereinafter, the "Truck"). 25. The Truck had an extended cab and the rear bed of the Truck was uncovered. 26. In the bed of the Truck, there were miscellaneous tools and items related to their work as pipe layers. 27. For example, there were in the rear bed of the Truck a couple of shovels, a red 5 gallon gas tank, a square blue plastic igloo type cooler for drinks, some sand bags being used to hold trash, a thick metal bar about 4 feet long (which is used to probe into the ground) and a grease gun. 28. This type of truck is common in Texas. 6

7 Case 3:14-cv B Document 1 Filed 12/03/14 Page 7 of 20 PageID Trucks are very common in the area in which Mr. Moreno was arrested. 30. The Truck was not altered in any fashion so as to carry heavier loads or for any other special purpose. 31. Neither the wheels nor the mirrors of the Truck were oversized. 32. The Truck was not unusually dirty, as compared to other trucks on the road. 33. The Truck was not unusually clean, as compared to other trucks on the road. 34. The Truck's windows were not tinted or otherwise altered so as to obscure visibility into the cab. 35. Visibility into the cab through the windows was clear and unobstructed. 36. The rear passenger seat of the Truck was a sofa type seat, meaning a long bench and not separate seats. A few construction helmets were in the rear seat area and some sweaters. 37. Both Mr. Moreno and Mr. Colmenero were wearing t shirts, blue jean type pants and work boots. 7

8 Case 3:14-cv B Document 1 Filed 12/03/14 Page 8 of 20 PageID Mr. Moreno was driving normally and in accordance with the traffic law. 39. Mr. Moreno was driving at or below the posted speed limit. 40. At the same time, Defendant Unate was on CBP roving patrol duty in a single CBP vehicle. 41. At that time, Defendant Unate was not patrolling the U.S./Mexico border or its functional equivalent. 42. At that time, Defendant Unate was not patrolling the U.S./Mexico border or its functional equivalent for the purpose of preventing unauthorized aliens from crossing the U.S./Mexico border into the United States. 43. Defendant Unate has no lawful authority, in his capacity as a Border Patrol agent, to enforce state laws that regulate highway use. 44. Defendant Unate, passing in the opposite direction on the same road, saw the Truck and saw that it contained two Hispanic men. 45. Based upon his perception that it contained two Hispanic men, Defendant Unate decided to stop the Truck and interrogate its occupants as to their immigration status. 46. Upon appearance of Defendant Unate s vehicle, Mr. Moreno kept driving normally, looking forward as is required to drive safely. 8

9 Case 3:14-cv B Document 1 Filed 12/03/14 Page 9 of 20 PageID Neither Mr. Moreno nor Mr. Colmenero made any bodily movements out of the ordinary for persons driving lawfully on the road in response to the appearance of Defendant Unate s vehicle. 48. After the two vehicles passed each other, Mr. Moreno kept driving north and Defendant Unate kept driving south. 49. Shortly thereafter, Mr. Moreno lawfully passed one black truck that was in front of him because it was going slower than the speed limit. 50. The black truck that Mr. Moreno passed had come from the same work site as Mr. Moreno and Mr. Colmenero. That black truck was driven by a white male, who was an inspector on the job site. 51. Mr. Moreno passed no other vehicles and at no time did Mr. Moreno exceed the speed limit. 52. Mr. Moreno continued driving north in front of the black truck which he had passed. 53. A few minutes later, Defendant Unate, having turned his vehicle around, appeared behind Mr. Moreno s truck. Defendant Unate, traveling north at a fast speed, had squeezed his vehicle in between Mr. Moreno s Truck and the black truck, so as to be immediately behind Mr. Moreno, even though there was insufficient space to do so safely. 9

10 Case 3:14-cv B Document 1 Filed 12/03/14 Page 10 of 20 PageID After tailgating Mr. Moreno for some time at a dangerously close distance, Defendant Unate turned on his emergency lights. 55. That action required Mr. Moreno to bring the Truck to a stop on the shoulder of the road. 56. In response, Mr. Moreno brought the Truck to an orderly and prompt stop on the side of the road and he turned off its engine as required by law. 57. This stop constituted a seizure within the meaning of the Fourth Amendment to the U.S. Constitution. 58. At the time of this seizure, Defendant Unate was aware that applicable constitutional, statutory and regulatory law required that he have objectively reasonable suspicion, based on specific articulable facts, that the persons seized were engaged in an offense against the U.S. or were aliens illegally in the U.S. 59. At the time of this seizure, Defendant Unate was aware of no facts indicating that: i. Mr. Moreno or his companion were violating or had violated any law, the enforcement of which is within the jurisdiction of CBP; 10

11 Case 3:14-cv B Document 1 Filed 12/03/14 Page 11 of 20 PageID 11 ii. the Truck was being driven in a manner in violation of any state traffic law; iii. iv. the Truck's appearance was indicative of illegal conduct; the Truck was being driven in a manner indicative of any illegal conduct; v. Mr. Moreno or his companion had entered the United States illegally from a foreign contiguous territory; vi. Mr. Moreno or his companion had come recently from a border area; vii. viii. Mr. Moreno or his companion were aliens; Mr. Moreno or his companion were aliens present in violation of any immigration law; ix. Mr. Moreno or his companion were then involved in or had been involved in alien smuggling; x. Mr. Moreno or his companion were then involved in or had been involved in drug smuggling; or that xi. Mr. Moreno or his companion were then involved in or had been involved in any other illegal activity. 11

12 Case 3:14-cv B Document 1 Filed 12/03/14 Page 12 of 20 PageID At the time of this seizure, Defendant Unate did not think or believe that: i. the Truck in which Mr. Moreno was travelling was being driven in a manner in violation of any state traffic law; ii. the Truck in which Mr. Moreno was travelling was being driven in a manner indicative of any illegal conduct; iii. iv. the Truck's appearance was indicative of illegal conduct; Mr. Moreno or his companion had come recently from a border area or foreign contiguous territory; v. Mr. Moreno or his companion were then involved in or had been involved in alien smuggling; vi. Mr. Moreno or his companion were then involved in or had been involved in drug smuggling; or that vii. Mr. Moreno or his companion were then involved in or had been involved in any other illegal smuggling activity. 61. At the time of this seizure, Defendant Unate was aware that it was illegal, and that he lacked lawful authority, to stop a vehicle based solely or principally on the fact that it contained a Hispanic or Hispanics inside. 12

13 Case 3:14-cv B Document 1 Filed 12/03/14 Page 13 of 20 PageID At the time of this seizure, the behavior and comportment of Mr. Moreno and his companion were consistent with lawful activity. 63. At the time of this seizure, Defendant Unate had received from his agency or otherwise no prior information or reports relating to the Truck, Mr. Moreno or his companion. 64. At the time of this seizure, Defendant Unate had received from his agency no prior information or reports relating to the Truck, Mr. Moreno or his companion indicative of any possible illegal conduct. 65. At the time of this seizure, Defendant Unate was aware of no recent reports from his agency relating to any specific allegations of possible illegal activity along the same portion of road upon which Mr. Moreno was seized. 66. At the time of this seizure, the behavior and comportment of Mr. Moreno and his companion were not indicative of unlawful activity. 67. At no time during this event did Mr. Moreno or his companion attempt to hide themselves from view. 68. At no time during this event did the Truck make movements out of the ordinary for a vehicle traveling in accordance with state traffic rules. 69. At no time during this event did the Truck speed up or slow down or change lanes or swerve or change its position in response to the appearance of 13

14 Case 3:14-cv B Document 1 Filed 12/03/14 Page 14 of 20 PageID 14 Defendant Unate's vehicle or in response to his emergency lights other than to bring the Truck to an orderly and prompt stop on the side of the road. 70. Subsequent to bringing the Truck to a stop, Defendant Unate got out of his vehicle and walked up alongside the driver s side of the Truck. 71. Defendant Unate was wearing a green uniform and was armed. 72. Defendant Unate, standing at the Truck s driver s side window, questioned Mr. Moreno and Mr. Colmenero about their citizenship and immigration status in English, to which questioning Mr. Moreno and Mr. Colmenero declined to respond. 73. Defendant Unate then questioned Mr. Moreno and Mr. Colmenero about their citizenship and immigration status in Spanish. 74. Defendant Unate ordered Mr. Moreno to exit the Truck. 75. Defendant Unate then took physical hold of Mr. Moreno and led him to his immigration vehicle. 76. Defendant Unate then handcuffed Mr. Moreno and placed him in the rear seat of his immigration vehicle. 77. Defendant Unate then returned to deal with Mr. Colmenero, ultimately also placing him in the immigration vehicle. 14

15 Case 3:14-cv B Document 1 Filed 12/03/14 Page 15 of 20 PageID At no time during this event did Defendant Unate fear for his safety based upon anything specific to Mr. Moreno or Mr. Colmenero. 79. At no time during this event did Mr. Moreno or Mr. Colmenero make any movements or take any other actions suggesting they would flee the scene. 80. There were no weapons of any sort in the Truck. 81. There was no illegal contraband in the Truck. 82. At no time did Mr. Moreno or Mr. Colmenero disobey any verbal commands or requests from Defendant Unate. 83. Defendant Unate had no warrant for the arrest of Mr. Moreno or Mr. Colmenero. 84. At no time during this seizure did Defendant Unate communicate with his agency for the purpose of determining whether the agency had any existing records or information relating to the Truck or Mr. Moreno or his companion. 85. At no time during this seizure did the Defendant officers undertake any investigation specific to Mr. Moreno or Mr. Colmenero into whether either man was likely to escape before an arrest warrant could be obtained. 15

16 Case 3:14-cv B Document 1 Filed 12/03/14 Page 16 of 20 PageID There are no characteristics particular to the portion of road in which the seizure of Mr. Moreno took place that make it more likely than other roads within central Texas to be used as a route for illegal activity. 87. There is nothing about the traffic patterns particular to the portion of the road in which this seizure took place that make it more likely that Mr. Moreno or his companions in their Truck were involved in any form of illegal activity. 88. As a result of Defendant Unate s actions, committed intentionally, maliciously, recklessly, negligently, and with a callous disregard for, or indifference to Mr. Moreno's civil rights, Mr. Moreno was unlawfully seized, assaulted, detained, mentally and emotionally distressed, physically abused and humiliated. He suffered physical harm, a loss of liberty, humiliation, mental and emotional distress, and a violation of his Constitutional rights. 89. Defendant Unate s actions were in accordance with and done pursuant to the regular pattern and practice of CBP patrol agents of driving Texas roads and highways, far from the border, and stopping people who look Hispanic to interrogate them about their immigration status without objectively reasonable suspicion that such affected persons are violating or have violated any law within the enforcement jurisdiction of CBP. 16

17 Case 3:14-cv B Document 1 Filed 12/03/14 Page 17 of 20 PageID Defendant Unate s supervisors knew, or reasonably should have known of his regular pattern and practice of driving roads and highways far from the U.S./Mexico border and stopping people who look Hispanic to interrogate them about their immigration status without objectively reasonable suspicion that such affected persons are violating or have violated any law within the enforcement jurisdiction of CBP. 91. Defendant Unate s supervisors knew, or reasonably should have known of the manner in which he performs his roving patrol duties. 92. Defendant Unate s supervisors are aware of his conduct relating to the seizure of Mr. Moreno and they approve of this conduct. 93. Defendant Unate has not been given recent training regarding the circumstances under which vehicles may lawfully be stopped or vehicle occupants interrogated. 94. Defendant Unate has not been given recent training regarding his authority to detain and arrest persons. 95. CBP has failed to establish up to date written policies and procedures that ensure that CBP agents like Defendant Unate understand the circumstances under which persons may be detained or arrested. 17

18 Case 3:14-cv B Document 1 Filed 12/03/14 Page 18 of 20 PageID CBP has not enacted any formal or informal procedure requiring or encouraging its officers to document in writing the factual bases of reasonable suspicion for all roving patrol vehicular stops, regardless of whether they result in an arrest. 97. CBP has not enacted any formal or informal procedure requiring or encouraging its officers to document in writing the factual bases of reasonable suspicion for all roving patrol vehicular stops that do not result in an arrest. 98. This encourages and allows officers like Defendant Unate to stop vehicles on the basis of nothing other or little more than the ethnic or racial appearance of the vehicles' occupants. herein. CLAIM UNDER BIVENS AGAINST DEFENDANT UNATE FOR UNREASONABLE SEIZURE IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 99. Mr. Moreno realleges the preceding paragraphs as if fully set forth 100. Mr. Moreno has a constitutionally protected right under the Fourth Amendment to the United States Constitution to be free from unreasonable seizure Defendant Unate violated Mr. Moreno' Fourth Amendment rights by seizing Mr. Moreno without reasonable suspicion that Mr. Moreno had violated 18

19 Case 3:14-cv B Document 1 Filed 12/03/14 Page 19 of 20 PageID 19 or was violating any law over which the Defendant officers had jurisdiction and by arresting Mr. Moreno without a warrant and without any reason to believe that Mr. Moreno would flee prosecution for any alleged violation of the law prior to obtaining a warrant. herein Mr. Moreno was damaged thereby. CLAIM UNDER THE FTCA AGAINST DEFENDANT USA FOR FALSE IMPRISONMENT 103. Mr. Moreno realleges the preceding paragraphs as if fully set forth 104. Defendant Unate willfully detained Mr. Moreno without his consent and without legal authority or justification. herein Mr. Moreno was damaged thereby. CLAIM UNDER THE FTCA AGAINST DEFENDANT USA FOR ASSAULT 106. Mr. Moreno realleges the preceding paragraphs as if fully set forth 107. Defendant Unate intentionally, knowingly, or recklessly made offensive and injurious contact with Mr. Moreno person without his consent and without legal authority or justification, causing Mr. Moreno to be damaged thereby. 19

20 Case 3:14-cv B Document 1 Filed 12/03/14 Page 20 of 20 PageID 20 JURY DEMAND 108. Pursuant to the Federal Rule of Civil Procedure 38(b), Mr. Moreno demands a trial by jury as to all issues so triable. PRAYER Wherefore, Mr. Moreno requests judgment against Defendants for nominal, compensatory, punitive damages, costs and attorney fees and such other and further relief as deemed just and appropriate at law and in equity. Respectfully submitted /s David Antón Armendáriz David Antón Armendáriz Texas Bar # davida@dmcausa.com Lance Curtright Texas Bar # lance@dmcausa.com Marisol Linda Perez Texas Bar # marisol@dmcausa.com Juan Carlos Rodriguez Texas Bar # juancarlos@dmcausa.com De Mott, McChesney, Curtright & Armendáriz, LLP 800 Dolorosa, Suite 100 San Antonio, Texas (210) (210) Fax Attorneys for Plaintiff 20