Johnson v. Hurtt

• Decision Date: 25 July 2012
• Docket Number: Civil Action No. H–10–366.
• Citation: 893 F.Supp.2d 817
• Parties: Joslyn M. JOHNSON, Plaintiff, v. Harold HURTT, in his official capacity as Chief of Police of the Houston Police Department, the City of Houston, and Houston Police Department, Defendants.
• Court: U.S. District Court — Southern District of Texas

893 F.Supp.2d 817

Joslyn M. JOHNSON, Plaintiff,

v.Harold HURTT, in his official capacity as Chief of Police of the Houston Police Department, the City of Houston, and Houston Police Department, Defendants.

Civil Action No. H–10–366.

United States District Court,

S.D. Texas,

Houston Division.

July 25, 2012.

Ben Dominguez, II, Attorney at Law, Houston, TX, for Plaintiff.

Andrea Chan, Henry Neef Carnaby, City of Houston Attorney, Legal Department, Houston, TX, for Defendants.

ORDER

DAVID HITTNER, District Judge.

Pending before the Court is Defendant The City of Houston's Motion to Dismiss (Document No. 44). Having considered the motion, submissions, and applicable law, the Court determines that the motion should be granted.

I. BACKGROUND

Plaintiff Joslyn Johnson brings this case pursuant to 42 U.S.C. § 1983 alleging violations of various constitutional and federal rights. Plaintiff is a Sergeant in the Houston Police Department and the widow of former Houston Police Officer Rodney Johnson, who was tragically shot and killed by an illegal alien during a routine traffic stop in 2006. On September 21, 2009, Johnson commenced this suit in the 151st Judicial District Court of Harris County, Texas, against the City of Houston (the “City”), the Houston Police Department (“HPD”), and then-acting Chief of Police Harold Hurtt (“Chief Hurtt”) (collectively, “Defendants”). On February 8, 2010, the Defendants removed the case to federal court based on federal-question jurisdiction. The case was assigned to U.S. District Judge Kenneth Hoyt, who on September 30, 2010, 2010 WL 3909929, issued an order of dismissal finding that Plaintiff's claims against the City were barred under principles of res judicata by a previous case Plaintiff had filed against the City alleging similar claims. ¹ Before dismissing Plaintiff's claims against the City, the district court dismissed HPD as a party on the grounds HPD lacked the legal existence and capacity to be sued under Federal Rule of Civil Procedure 17(b). The district court further denied Plaintiff's motion to substitute Charles McClelland Jr.—the City's acting Chief of Police—in place of retired Chief Hurtt. Finally, the district court dismissed Chief Hurtt in his official capacity on the grounds that the court lacked jurisdiction to issue a mandamus against Chief Hurtt and that Plaintiff's § 1983 claims against Chief Hurtt in his official capacity were redundant since the Plaintiff had also asserted the same claims against the City.

On November 1, 2010, Plaintiff filed an appeal with the United States Court of Appeals for the Fifth Circuit challenging the district court's finding on the issue of res judicata. Plaintiff did not challenge the portions of the district court's order dismissing HPD or Chief Hurtt. On October 6, 2011, the Fifth Circuit issued an opinion reversing the district court's order on the grounds that the present action did not meet the test for claim preclusion under Fifth Circuit precedent.² Consequently, the Fifth Circuit remanded the case to the district court for further proceedings. On October 12, 2011, case was reassigned to this Court following Judge Hoyt's recusal.

On November 15, 2011, Plaintiff filed her Second Amended Complaint, wherein she renamed HPD and the City's acting Chief of Police, Charles McClelland (“Chief McClelland”). According to her Second Amended Complaint, Plaintiff challenges certain policies maintained by Defendants, which she alleges substantially restrict, if not prohibit, her from communicating with U.S. Immigration and Customs Enforcement (“ICE”) about matters concerning the status of undocumented aliens and those who are criminally present in the United States as undocumented aliens. The policies at issue are HPD General Order 500–05 (issued on June 25, 1992) and HPD Circular 06–1010–298 (issued on October 11, 2006).

HPD General Order 500–05 states in relevant part as follows:

POLICY

Undocumented aliens status is not, in itself, a matter for local police action. Unlawful entry into the United States is not to be treated as an on-going offense occurring in the presence of a local police officer. Houston police officers may not stop or apprehend individuals solely on the belief that they are in this country illegally.

PROCEDURES

Officers shall not make inquires as to the citizenship status of any person, nor will officers detain or arrest persons solely on the belief that they are in this country illegally. Officers will contact [ICE] regarding a person only if that person is arrested on a separate criminal charge (other than a class C misdemeanor) and the officer knows the prisoner is an illegal alien.³

The purpose of General Order 500–05 is “to establish the policy of the Houston Police Department regarding illegal aliens.” ⁴ Circular No. 06–1010–298 supplements and further clarifies General Order 500–05. It states in relevant part as follows:

1. Officers will NOT detain or arrest persons solely on the suspicion that they are in this country illegally.

2. Officers have the discretion to check the wanted status of any one legally detained.

3. Officers SHALL check the wanted status of everyone that is ticketed, arrested, and/or jailed ....

4. Officers who receive an NCIC Immigration Hit (Criminal Enforcement of Administrative Warrant of Removal and/or ICE Detainer on Previously Deported Felons) will confirm the information as instructed within the NCIC Hit. Persons with confirmed hits from the Bureau of Immigration and Customs Enforcement (ICE) will be handled as a fugitive hold

...

c) Officers will have direct contact with the Law Enforcement Support Center (LESC) at a 1–800 number dedicated exclusively to law enforcement and advise them of the NCIC information hit. Once the identity of the person and the warrant or detainer are confirmed, ICE will be contacted for acceptance of a criminal hold on the suspect by our Dispatch and/or Jail Division.

...

9. Undocumented aliens are prohibited from possessing firearms and can be charged federally with a felony pursuant to Title 18, United States Code, section 922(g)(5). The Harris County District Attorney's Office has agreed to refer these cases to the U.S. Attorney's Office for prosecution. Anyone encountering an undocumented alien in possession of a firearm should place them on hold for the Major Offenders Division so that they can be prosecuted federally.

.... ⁵

Plaintiff alleges that under these policies, officers have the discretion to check the “wanted” status of any person legally detained, and that officers are required to check the “wanted” status of any person ticketed, arrested, or jailed. She explains that “wanted” checks are performed by running a person's name through various computer databases such as the National Crime Information Center (“NCIC”) database.⁶ She alleges that under these policies, officers are barred from contacting ICE directly unless an officer's “wanted” check produces an “NCIC Immigration Hit” indicating that a detained person is the subject of an outstanding ICE-issued warrant. Only then may an officer contact ICE directly to confirm the person's identity, the existence of the warrant or detainer, or confirm the information that the “NCIC Immigration Hit” may contain.

Plaintiff contends, however, that ICE maintains different information relating to the identify and immigration status of undocumented aliens, which the NCIC database does not contain or emphasize. She explains that the NCIC database only houses identity information on aliens previously convicted and deported for drug trafficking, firearms trafficking, or serious violent crimes, and that identity information on aliens deported for other reasons is not included. She further explains that ICE, by contrast, maintains a comprehensive system that collects citizenship and immigration information from a wide range of databases, including the NCIC database, and that such information is made available to other law enforcement agencies through the Law Enforcement Support Center (“LESC”), a single national point of contact that operates 24 hours a day, seven days a week, to provide timely customs information and immigration status and identity information to local, state, and federal law enforcement agencies on aliens suspected, arrested, or convicted of criminal activity. Thus, Plaintiff alleges that by limiting her to checking only the “wanted” status, through the NCIC database, of a person who is lawfully detained, ticketed, arrested, or jailed, the subject policies substantially restrict her ability to obtain information from ICE on the person's immigration status, whether legal, illegal, or criminal. She further alleges that even when a person's immigration status is or becomes known by her, such as if a person identifies himself or herself as an undocumented alien or a previously deported alien, the policies restrict her ability to report that information to ICE or to contacted ICE “while on the street” unless that person is arrested, or otherwise legally detained.

Plaintiff contends that she does not seek to detain or arrest persons in order to make inquires into their immigration status; rather, she seeks to use her own professional judgment to determine when it is appropriate to contact ICE to inquire or provide information about a person's immigration status if, in the course of carrying out her duties and responsibilities as a law enforcement officer, she has reason to believe a crime may have been committed. She alleges that subject policies prohibit such communications and harm her ability to carry out her duties and responsibilities as a law enforcement officer. She further alleges that subject policies deprive her of her rights, privileges, and immunities guaranteed by the United States and Texas constitutions, including her right to freedom of expression, and that these policies further violate her federalrights under 8 U.S.C. § 1373 (communication between...