State and Local Police Deprivations of Latino Civil Rights

CHAPTER 7

These northward travels from Mexico and Central America have affected the entire United States. Latinos have made their presence known not only in the South but also in the North, along the border with Canada (Christenson 2009). In 1928 Chicago, an estimated 30,000 Latinos, mostly men, were employed in steel plants, meat-packing plants, and on the railroads (Cortes 1974, “The Mexican Immigrant”). Today, that initial migration, along with the increased Mexican immigration and the migration of a significant Puerto Rican population, has converted South Chicago into a distinguishable Latino neighborhood whose principal thoroughfare includes several miles of Latino-named businesses.

An extreme example of police abuse against Latinos occurred in 1943 on the West Coast. A group of Latinos wearing zoot suits allegedly attacked Anglo sailors on leave. Another version alleges that white military men instigated the brawl by ridiculing the Latinos’ gaudy attire.1 The sailors returned to their ship. Shortly thereafter, military men of all branches entered the East Los Angeles (East LA) barrio. The military men looked for anybody that fit the description of a “zootsuiter.” Once they identified one, the military men and civilian companions stripped, humiliated, and beat the Latino men because of the actions of a few. The Los Angeles Police Department (LAPD) basically declared the crisis to be a military matter, while the military police claimed they lacked jurisdiction to act on civilian turf in what became known as the Zoot Suit or Pachuco Riots (Acuña 1972, 203–8).

When a Latino assistant U.S. Attorney in 1979 prosecuted an Anglo Houston police officer in the killing of white teenager Randy Webster, he worked the case diligently because a life was unjustifiably terminated.2 A thief who jeopardized officers’ lives during a high-speed chase, Webster did not deserve “street justice” punishment. A civilized society utilizes judges to sentence appropriately. During the police beating of Webster, an officer’s weapon discharged, the bullet entered Webster’s head, and an officer placed a “throwdown” gun by the young man to justify his being shot. All this fabrication occurred as he lay dying on the pavement.

Latinos have sadly been victimized throughout the years. Federal prosecutors file charges against officers of all races and ethnicities who literally take the law into their own hands and violate the rights of people in their custody. In some cases, both the offenders and the victims are Latinos. Exemplary cases include United States v. Morales,3 where a jury found the La Joya, Texas, chief of police guilty of perjury for his denial under oath of having engaged in an assault of a handcuffed prisoner. A patrol officer had provided the federal prosecutor with a recording of an incriminating telephone conversation in which Chief Morales urged the officer to represent under oath that Morales had used only reasonable force to subdue the unruly drunk. He persisted in his denial of using excessive force. In United States v. Contreras, the jury convicted a Hidalgo, Texas, police officer for conspiring with Mexican agents to have a U.S. citizen falsely arrested, abducted, and taken by force into Mexico.⁴ In a final exemplary case, United States v. Ramos,⁵ after a high-speed chase, a McAllen, Texas, supervisor assaulted the detained driver and instructed his officers to claim they did not see anything (Hanners 1982).

Civil litigation to seek vindication for civil rights violations has become a necessary alternative since prosecutors at both the state and federal level often decline to prosecute lawless cops. Once the Court held in Monell v. Department of Social Services that municipalities can qualify as “persons”⁶ for civil rights liability purposes, victims have resorted to hiring excellent lawyers to recover damages and, in the process, convincing the taxpaying citizenry to demand more supervision of officers from sheriffs, police chiefs, and mayors. Several reasons emerge for the high rate of non-prosecutions of officers. First, prosecutors usually note the need to maintain a good working relationship with cops since they are the ones who investigate and make the cases against the murderers, robbers, and rapists. Second, other prosecutors want to win and prefer not to blemish their success record by taking on a tough case against an accused officer. Finally, if the prosecutor has political ambition and wants to become a judge, an unpopular prosecution or litigation against an officer accused of violation of civil rights may contribute to thwarting the dream of judicial service. It happened to Samuel Paz, a prominent civil rights attorney in California whose federal bench nomination fizzled when President Clinton succumbed to pressure from police organizations and withdrew his nomination (Weinstein and Hall 1994).

Lucero v. Donovan addresses an all-too-common stereotype: all Latinos are from Mexico and all Latinos are “illegals.” In reality, Mexican-descent Americans account for only 60 percent of the Latino population (Logan and Turner 2013). Even the large U.S. undocumented population is not exclusively Latino. Some members of society, however, see the issue as one involving “Mexicans.” In the Lucero case, the victim, a U.S.-born citizen, sued LA police officers under the civil rights deprivation statute⁷ after being subjected to the trite “go back to Mexico” insult when she demanded respect after an unauthorized police entry into her home.⁸

LA officers entered Lucero’s home with questionable consent and without any probable cause to believe narcotics existed in her home. The confrontation began when police observed a man, Ms. Lucero’s brother, walking unsteadily and appearing to be under the influence of narcotics. Although his condition indicated that he could not knowingly waive any rights, an officer allegedly obtained consent to search his residence. The man agreed and directed them to a home to which he could not gain access. The brother, Frank, then took them to the home of his sister, Irene Lucero. The officers entered the home and immediately commenced a search.

When Ms. Lucero demanded a search warrant, the officer made the rude statement about Mexico. She expressed her anger, and they arrested and handcuffed her. The officers seized a bottle of pills. Since the pills proved to be lawfully possessed medications, the jail released Lucero the next morning.9 However, Ms. Lucero experienced the humiliation of being subjected to a degrading strip search.¹⁰ Lucero refused to cooperate since she was menstruating, and requested a doctor to conduct the search. Policewomen removed her clothing while the male booking officer and one of the arresting officers restrained her. Lucero asserts that the two male arresting officers remained afterwards and made deprecating remarks about her nude body as she cried on the floor.

The appellate court found that the police lacked authority either to conduct a search without a warrant or to conduct a search incident to the arrest of Ms. Lucero’s brother. They also lacked probable cause to arrest her. As a result, her allegations should have been submitted to a jury for resolution.¹¹ According to the appellate court, finding blue and yellow capsules in an unmarked bottle in Lucero’s kitchen does not constitute probable cause to believe Ms. Lucero was in possession of a drug.¹²

Beginning in 1966, the United Farm Workers Organizing Committee, AFL-CIO, engaged in union efforts to recruit the predominantly Mexican-descent agricultural workers in the South Texas Rio Grande Valley.¹³ The Valley historically served as an area where Anglos made every effort to keep Mexicans “in their place,” including the maintenance of separate Mexican schools. The reactions to Latino abuses included retaliatory attacks by Juan “Cheno” Cortina against police and Rangers in the Brownsville, Texas, area. In San Antonio, another substantial Latino-populated area, Anglos threatened Juan N. Seguin, notwithstanding his service as a captain of the Anglo rebels in the 1836 Texas Independence War. The threats forced him to flee to Mexico in 1842 (Novas 2008, 81–83). Eventually, La Raza, this so-called “sleeping giant,” awoke and began to demand fairness and justice, concepts that Anglo ranchers did not deem appropriate for “Mexicans” (Castro 2000, 138).

In pursuit of their objectives, the Texas Valley farm workers called for strikes, picket lines, rallies, and demonstrations to enlist nonunion laborers. These activities provoked strong emotions among the growers, resulting in acts of violence and illegal arrests of the workers.¹⁴ Soon, local and state authorities initiated prosecutions under various state laws. At one point, a state district judge ordered an end to all pro-strike picketing.15

During the activities, a railroad bridge suffered partial burn damage, prompting the Missouri-Pacific Railroad to request Texas Rangers assistance to preserve law and order.¹⁶ Texas leaders formed the Texas Rangers in the 1830s to patrol the border and to combat Mexicans, whom Anglos categorized as violent bandits and cattle rustlers. Ranger atrocities and murders committed against the Mexican population in the early years of Texas history prompted Latinos to refer derisively to the Rangers as Rinches Cobardes, the last word meaning “cowards” and the other word connoting “rangers” in the Tex-Mex Spanish dialect.

Ranger mistreatment of Latinos continued through the early 1970s, when federal judges in Medrano v. Allee¹⁷ utilized the injunction provisions of the federal Civil Rights Act to order an end to the state police force’s abuses. The three-judge panel in Medrano ordered the termination of the state prosecutions of the farm workers and their companions, and also enjoined the Rangers from interfering with labor disputes.¹⁸ Prompted by the union-busting tactics by the combined efforts of Rangers, local police, and public officials, the farm workers’ litigation sought to address violations of the First and Fourteenth Amendment rights of workers. The organizers also questioned the constitutionality of certain state statutes and requested a halt to their enforcement. The federal court judgment favored the farm workers by holding certain statutes unconstitutional and safeguarding their federally protected constitutional rights.¹⁹ Simply stated, the Rangers and those who collaborated with them stepped over the line of neutral law enforcement and took sides in the labor controversy.²⁰

Briefly, once the Rangers entered into the labor dispute, the following incidents occurred. While labor sympathizers picketed at a bridge, Captain Allee informed the strikers that he could get them all a job for $1.25 per hour (the amount the union demanded) within the next ten minutes.²¹ At this point, the Rangers became an arm of the private ranchers. On the following day, picketers gathered on private property adjacent to La Casita Farms, one of the principal strike targets. At the request of La Casita, Captain Allee, four Rangers, and two deputy sheriffs conducted a thorough investigation to determine if the picketers were trespassing.²²

In addition, Texas Rangers arrested ten strikers for allegedly attempting to block a train carrying produce.²³ Shortly thereafter, the Reverend Edgar Krueger and three others organized pickets. The Rangers then arrested Krueger and another union member, Magdaleno Dimas, and engaged in the intimidating tactic of holding their faces inches from a passing train.²⁴ Allee obviously had a personal dislike for Mr. Dimas. He also had a streak of intolerance towards Latinos, particularly those who challenged his authority. In a 1971 incident, Allee struck a grocery store cashier, claiming the clerk had attempted to strike him. More credibly, the attack occurred because the Latino had the audacity to differ with Mr. Allee over the price of a bottle of water.25

Allee later arrested Dimas for allegedly brandishing a gun in a threatening manner. The Rangers had neither an arrest warrant nor a formal complaint on which a warrant could be based, so they put in a radio call for a justice of the peace to prepare a warrant. Upon obtaining the warrant, the Rangers approached the Dimas home. Without saying a word, Captain Allee jabbed a man present at the home in the ribs with his shotgun barrel.²⁶ The Rangers thereafter broke into the house and arrested Dimas and his friend in what the court described as a “violent and brutal”²⁷ fashion.

Captain Allee admitted that he struck Dimas on the head with his shotgun barrel, but he testified that neither man was hit or kicked at all except for that one blow.²⁸ Allee added that both men fell when they attempted to run from the room. In the process, they collided with a door and each other at the same time. Dimas remained hospitalized four days with a brain concussion. X-rays revealed that he had suffered such a hard strike to his back that his spine was curved out of shape. The judge expressed serious doubts that two grown men could suffer the extensive injuries in the fashion described by Allee.²⁹

Some consider police brutality a horror of the past, but unfortunately this is not the case. Physical injustices against Latinos and others continue. In Los Angeles, Kam Santos was staggering down the street in an intoxicated state when he was allegedly tackled by LA police officers.³⁰ Mr. Santos, a man with a history of mental illness, was stopped because he fit the description of a burglary suspect.³¹ Santos did not remember exactly what transpired during the takedown, but remembered yelling, “Why did you have to break my back?”³² The medical evidence included an x-ray that revealed a recent compression fracture of his L-2 vertebra.³³

As is common in police-civilian encounters, the respective descriptions differ. The arresting officer claimed he “walked up” and grabbed Santos’s wrists to handcuff him, but Santos slumped to the ground. He added that to prevent Santos from hitting his head on the sidewalk, he grabbed his arm and shoulder and “guided” Santos to the ground.³⁴

After a brief trial, the judge concluded that since Santos “did not specifically remember being forced to the ground,” he could not prove excessive force.³⁵ As a result, the judge dismissed the case, depriving Santos of the opportunity for a jury to decide whether the officer had utilized excessive force. The medical evidence clearly established that extreme force had occurred, whether justified or not.³⁶ With all due respect, the Santos case judge apparently forgot basic evidentiary principles that permit as probative evidence both direct (eyewitness) evidence and circumstantial or indirect evidence (scientific proof, such as a fingerprint).

The appellate court reversed and returned the case to the trial court, concluding that there was more than enough evidence from which the jury could reasonably have found liability.37 Although Santos does not recall what the officer did, he does recall the pain and yelling at him about breaking his back.³⁸ The appellate court held that when the disputed facts and inferences are treated in the manner required by law, a jury could properly find an unreasonable seizure occurred under the Fourth Amendment.³⁹

In Santos’s second opportunity, the jury ruled against him. He then sought to appeal pro se, serving as his own counsel, without any professional assistance. He contended that the jury’s finding was unsupported by the evidence and that judicial bias, jury bias, and ineffective assistance of counsel had tainted the outcome.⁴⁰ The appellate court dismissed the appeal for failure to provide a transcript, but Santos asserted he was financially unable to provide a transcript and the judge had denied his application to proceed in forma pauperis.⁴¹ The appellate court justified its decision since Santos “made only conclusory statements about the issues he would raise on appeal.”⁴² Not surprisingly, a person who is somewhat challenged not only in his day-to-day life but also in his mental abilities and intellectual powers will have a difficult time addressing legal issues.

In 1997, Ricardo Perez, a City of Miami police officer, shot Juan Pablo Hernandez in the back as he was running away. The shooting victim then filed a civil rights lawsuit against Perez and the city for damages.⁴³ The facts establish that during daylight hours and good visibility, Perez, while on patrol, saw Hernandez walking in a middle-class neighborhood not regarded as a “high crime” area. Perez noticed that Hernandez fumbled around with his waistband and froze momentarily when they made eye contact. Although Officer Perez neither saw a gun nor believed Hernandez had committed a crime, Hernandez actually had a gun in his waistband. The officer’s only perception was that Hernandez was acting suspiciously.⁴⁴

Officer Perez, still in his patrol car, told Hernandez to stop and ordered him to approach the car and to pull his shirt up. Hernandez complied, raised his shirt, took the gun from his waistband so that the barrel was pointed down, and released the gun inside the open front passenger window. Hernandez then immediately turned and started running. While sitting in the driver’s seat, Officer Perez fired and wounded Hernandez.45

Officer Perez requested summary judgment and unsuccessfully asserted his defense of qualified immunity. Essentially, Perez claimed that his use of deadly force had not been clearly established to constitute a violation of the victim’s constitutional right to be free from excessive force. The judge, however, determined that Hernandez’s rights were clearly established in that “it would have been clear to a reasonable officer that the defendant’s conduct was unlawful.”⁴⁶ Stated another way, the development of the law as to an officer’s right to use deadly force gave Perez “fair warning” that his conduct was unconstitutional.⁴⁷

The standard for a Fourth Amendment excessive-force claim is objective reasonableness from the “perspective of an officer on the scene.”⁴⁸ In a previous ruling, the Supreme Court held the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.⁴⁹ Specifically, where the suspect does not pose an immediate threat to the officer and others, the failure to apprehend him does not justify shooting to kill him.⁵⁰ As to whether Officer Perez’s conduct was unlawful, the court concluded that qualified immunity applies unless “the use of deadly force would have been seen as plainly unlawful by all objectively reasonable officers.”⁵¹ Relying on Hernandez’s version, no objectively reasonable officer in Officer Perez’s position could have reasonably believed Perez could lawfully use deadly force to apprehend Hernandez.⁵²

Violations of Civil Rights Resulting in Death

Early tales of Anglo-Mexican relations reveal horrific violence by Anglos against persons of Mexican descent (Montejano 1987, 26–37). The controversies often centered on desires to acquire land, cattle, and other livestock owned by Latinos. In addition to the violence from whites, Latinos suffered law enforcement brutality. The Texas Rangers were notorious among the police outlaws, those who abused and misused their authority. The Rangers developed a reputation for shooting first and determining later if the Mexican was armed (Paredes 1958, 23–32). Many complaints indicate the Rangers knew that the person they shot to kill was not a threat to them. In the early days of the Anglicization of Texas and through the 1960s, the aura surrounding the Rangers allowed them to abuse and kill with impunity (Anders 2010).

Anglo land speculators and Midwestern farmers moved in large numbers to the Valley during the early 1900s. These newcomers brought their socioracial prejudices with them. “Foreigners” and dark-skinned people were not to be trusted. The term “American” became a synonym for “white,” and any brown-skinned person was a “Mexican” regardless of origin (McLemore 2004, A1). In one exemplary case, the acquisition of land motivated the killing of two members of the De La Cerda family in Brownsville, a prosperous ranching family. The De La Cerdas had the misfortune of living next to Richard King, a cattle baron who desired to expand his holdings. Three Rangers killed one of the sons, claiming that he allegedly shot at them while in the act of stealing cattle (Paredes 1958, 29–30).

Since similar attacks and lynchings of Latinos continued, State Representative J. T. Canales demanded an end to Ranger and vigilante oppression of Latinos of the lower Rio Grande Valley. In January 1918, he filed nineteen charges against this Ranger violence and demanded a reorganization of the force. In response, a Texas Ranger threatened the legislator. As a result, Canales, a descendant of another rebel, Juan “Cheno” Cortina, opted not to seek reelection in 1920 (Anders 2010). For two months, witnesses gave testimony about Ranger brutality during the San Diego revolt.

On August 29, 1970, reporter Ruben Salazar covered a march against the war in Vietnam in his dual role as a Los Angeles Times columnist and as news director of the Spanish-language television station in LA. Rosalío Muñoz, the UCLA student body president, and the National Chicano Moratorium Committee organized the event. Rodolfo Acuña, the renowned Chicano historian, and thousands more participated. Acuña himself was arrested, and he observed police use pepper spray on detainees (Acuña 1972, 260). Acuña writes about “a row of gold helmets marching across the park,” an incident witnessed by Dr. James Koopman of the UCLA Medical School (Acuña 1972, 259–60; Morales 1972, 105). Photographs taken by two La Raza newspaper photographers show people with helmets like those Dr. Koopman described (Morales 1972, 100 ff.). These photographs further establish that police confronted demonstrators outside the café where reporter Salazar sought refuge from violence that erupted during the anti-Vietnam rally.