Shannon W. Conway
Associate Professor at UNT Dallas College of Law
ISSUE 14 | FALL 2023 | CIVIL RIGHTS |
The common law tort claim serves as a viable alternative to detainees' constitutional claims.
In a press release earlier this year, the Office of the Texas Governor, Greg Abbott, bragged that he, the Texas Department of Public Safety (DPS), and the Texas National Guard, as part of their multi-agency “Operation Lone Star” efforts, have effected “over 420,800 illegal immigrant apprehensions.”¹ According to Abbott’s website, he has also bused over 33,000 migrants to various cities across the United States.²
Operation Lone Star was launched by Governor Abbott and the DPS in March 2021 for the stated purpose of combatting “the smuggling of people and drugs into Texas.”³ As described, Operation Lone Star “integrates DPS with the Texas National Guard and deploys air, ground, marine, and tactical border security assets to high threat areas to deny Mexican Cartels and other smugglers the ability to move drugs and people into Texas.”⁴ And within a year of its inception, Abbott’s office reported that Operation Lone Star resulted in the arrests of more than 208,000 migrants and more than 11,800 criminal charges, including 9,300 felony charges.⁵
According to a federal lawsuit filed in the United States District Court for the Western District of Texas, captioned Robles v. Ramirez,⁶ Governor Abbott’s Operation Lone Star—which Abbott has since also coined as Texas’ “catch and jail” policy⁷—the four plaintiffs, who were arrested on allegations of trespassing in the Texas counties of Val Verde and Kinney, were:
detained, processed, and magistrated in a “temporary” processing center in a tent in a parking lot; transported from there to quickly-converted state prisons over one hundred miles away; subject[sic] to weeks and months of pretrial detention; and, when Texas law commanded their release, they were overdetained. Even following days or weeks of overdetention in state prisons, they were released into handcuffs and shackles, transported another one hundred miles, and deprived of their liberty until they were finally presented to federal immigration facilities.⁸
Based on these allegations (and more), the Robles plaintiffs asserted causes of action against the defendants—described as “state and county officials tasked with different and overlapping roles in the [Operation Lone Star] criminal legal system [who] designed and administered the catch and jail scheme”—for violation of Due Process; Fourteenth Amendment, 42 U.S.C. § 1983; violation of the Fourth Amendment, 42 U.S.C. § 1983; and Negligence.⁹
Relevant to the claims asserted in the Robles Complaint, the Fourteenth Amendment to the U.S. Constitution forbids state actors from, inter alia¹⁰, “depriv[ing] any person of life, liberty, or property, without due process of law.”¹¹ The Fourth Amendment protects against unreasonable seizures, which the Robles plaintiffs define as a seizure “not supported by probable cause.”¹² According to the plaintiffs, defendants “knew or should have known that continuing to deprive Plaintiffs of their liberty and restrict their movement and activities after their charges had been dismissed or their sentences had been served constituted a seizure.”¹³
Potential Impediments to the Constitutional Claims based on Overdetention
In order to succeed on their claims against the individual defendants, all of whom were sued in their individual capacities,¹⁴ the Robles plaintiffs will have to establish that these defendants acted, or failed to act, “with deliberate indifference,” that is, a “disregard [for] a known or obvious consequence of [their] action[s].”¹⁵ They will also have to establish that these defendants had “actual or constructive notice” that their acts or inactions would result in constitutional violations.¹⁶
More burdensome are the proof requirements to establish the alleged constitutional violations by the county defendants—namely, proof of both (1) “a predicate constitutional violation” and (2) “that a custom or policy of the [counties] caused the violation.”¹⁷ Thus, in order to impose liability on Val Verde and Kinney counties, the Robles plaintiffs will have to prove that “action pursuant to official municipal policy” caused their injury.¹⁸
The Robles Complaint sets forth these allegations. The plaintiffs detail their experiences as detainees of the Operation Lone Star initiative and allege, with respect to the individual defendants, that they: (i) “knew or should have known that detention of a person absent pending criminal charges or an operative sentence… violates the Fourteenth Amendment’s due process guarantee”; (ii) “had actual knowledge that people in their custody were regularly overdetained for days or weeks after charges had been dismissed or beyond the expiration of their terms of imprisonment”; and (iii) “took no remedial steps to systemically prevent and effectively eliminate overdetention… [which] amounted to deliberate indifference to the constitutional rights of people in their custody.”¹⁹ And with respect to the county defendants, the Robles plaintiffs allege that: (i) county officials “had actual knowledge that people in their custody were regularly detained without legal authority… [and] in violation of due process”; (ii) that such overdetention “occurred so regularly that it reflected and constituted a widespread practice or custom”; and (iii) county officials failed to implement policies to systemically prevent or eliminate overdetention… [which] amounted to deliberate indifference to the constitutional rights of people in their custody.”²⁰
The real issue, however, is whether they will be able to sufficiently prove these allegations or at least convince the court that there are material issues of fact in dispute on these elements so as to survive a dispositive motion and get these issues before a jury. This is not always easy but certainly has been done in the context of the overdetention of state prisoners, for which the Louisiana Department of Public Safety and Corrections (DPSC) has recently gained much attention.²¹
In Crittendon v. LeBlanc,²² the plaintiffs alleged that DPSC officials violated due process by failing to adopt policies ensuring the plaintiffs’ timely release and directly participated in conduct that caused their overdetention beyond the expiration of their sentences.²³ Both the district court and the U.S. Court of Appeals for the Fifth Circuit found sufficient fact issues on prisoners’ claims that Louisiana prison officials failed to adopt policies to prevent unconstitutional overdetentions so as to preclude the officials’ requested summary judgment, but also found that there was insufficient evidence, at least with regard to particular individual plaintiff-prisoners, that the officials directly participated in violation of their due process rights.²⁴ In the even more recent case of Buchicchio v. LeBlanc, brought by a former prisoner against the DPSC for due process violations and false imprisonment in connection with a delay of his release from prison 12 weeks after expiration of his sentence, the district court dismissed the plaintiff’s claim that the sheriff or his office failed to implement policies to address overdetention, but left the remainder of the claims intact, including those alleging § 1983 due process violations, false imprisonment and negligence.²⁵
A Formidable Alternative Theory of Liability
Although not currently asserted in the Robles lawsuit, the plaintiffs there have an alternative (or additional) theory of liability available to them in the common law tort of false imprisonment. A false imprisonment claim under Texas law requires that a plaintiff establish: (1) willful detention by the defendant; (2) without plaintiff’s consent; and (3) without authority of law.²⁶ The allegations already alleged in the Robles Complaint are likely more than sufficient to state a claim for false imprisonment.
First, the Robles plaintiffs detailed their willful detention by the defendants with allegations that after their release from state custody, the plaintiffs and other detainees under Operation Loan Star were “not free to leave the prisons where they are held” and instead were “handcuffed, shackled, and aggressively placed in a transport vehicle” and “transported to a federal immigration facility” or otherwise “transported by TDFJ officers with a DPS escort back to [the applicable temporary processing center].”²⁷ Next, the Robles plaintiffs also plead their lack of consent through factual allegations that their court-appointed counsel repeatedly alerted defendants that the plaintiffs were still in custody and inquired as to why and repeatedly requested their release from custody.²⁸ In addition, the defendants were alleged to have “regularly received complaints about overdetention from people detained under the ‘catch and jail’ program, both verbally and through the inmate grievance system.”²⁹ Finally, the Robles Complaint alleges that these unconsented detentions were committed by the defendants, who had “actual knowledge that people [including plaintiffs] were regularly detained without legal authority,” and that the detentions regularly occurred after defendants “had lost any shadow of legal authority” to hold plaintiffs.³⁰
One of the seminal cases in Texas involving false imprisonment (and alleged due process violations) was in the context of a prisoner’s overdetention, Whirl v. Kern.³¹ Mr. Whirl was arrested and booked in the Harris County jail where he was deprived of the use of his artificial leg, and where he languished for nearly nine months after all charges against him were dismissed.³² The elements of Whirl’s prima facie³³ claim were easily met—the defendant sheriff’s actions indisputably constituted the willful detention of Whirl without his consent. At issue in Whirl was whether the sheriff was privileged to detain Whirl—or, said differently, whether he had the “legal authority” to detain Whirl for nine extra months.³⁴ The court acknowledged that a sheriff’s “duty to his prisoner is not breached until the expiration of a reasonable time for the proper ascertainment of the authority upon which his prisoner is detained” but had no problem that Whirl’s detainment of nine months was, as a matter of law, an unreasonable time.³⁵ The Buchicchio court held similarly—finding that “12 weeks after expiration of [Buchicchio’s] sentence” easily met Louisiana’s false imprisonment “essential elements: (1) detention of the person; and (2) the unlawfulness of the detention,” leaving only the factual determination of the nature of the official’s “specific conduct and authority with regard to Plaintiff’s detention.”³⁶
The overdetention alleged in the Robles Complaint—although in a slightly different context under the realm of Operation Lone Star rather than a state prison or county jail—really are not far different than the circumstances in Whirl, Buchicchio, and Crittindon (and the countless other false imprisonment cases around the country grounded on similar factual circumstances). The time periods are not as dramatic—13, 19 and 42 days of alleged overdetention in the Robles Complaint versus the 9 months and 12 weeks in Whirl and Buchicchio, respectively,³⁷—but these time periods should suffice so long as they may be deemed “unreasonable,” according to the Whirl court.³⁸
In sum, the existing allegations in the Robles Complaint appear facially sufficient to allege an additional cause of action for the common law tort of false imprisonment under Texas law. Doing so provides an alternative theory of recovery on the chance that the constitutional claims do not survive a dispositive motion, or the factfinder is unconvinced that the Operation Lone Star officials acted with “deliberate indifference” or acted “pursuant to official municipal policy” in causing the plaintiffs’ overdetention and resulting damages.
Suggested Citation: Shannon W. Conway, Operation Lone Star’s Overdetentions Constitute False Imprisonment, ACCESSIBLE LAW, Fall 2023, at 1.
Sources:
[1] Press Release, Office of the Texas Governor, Operation Lone Star Gains National Support From State Governors (Aug. 25, 2023), https://gov.texas.gov/news/post/operation-lone-star-gains-national-support-from-state-governors.
[2] Id. (touting that these migrants have been bused to Washington, D.C., New York City, Chicago, Philadelphia, Denver, and Los Angeles).
[3] Press Release, Office of the Texas Governor, Governor Abbott, DPS Launch “Operation Lone Star” To Address Crisis At Southern Border, (Mar. 6, 2021), https://gov.texas.gov/news/post/governor-abbott-dps-launch-operation-lone-star-to-address-crisis-at-southern-border.
[4] Id.
[5] Id.; see also Emily Hernandez, What is Operation Lone Star? Gov. Greg Abbott’s controversial border mission, explained., Texas Tribune, (Mar. 30, 2022, 5:00 AM), https://www.texastribune.org/2022/03/30/operation-lone-star-texas-explained/.
[6] Complaint at 1, Robles v. Ramirez, No. 1:23-cv-00981 (W.D. Tex. Aug. 21, 2023).
[7] Greg Abbott (@GregAbbott_TX) X (formerly known as Twitter) (Jul. 25, 2021, 10:42pm), https://twitter.com/GregAbbott_TX/status/1419503321811988482?lang=en (“Gov. Abbott: Texas’ New Border Plan ‘Catch and Jail’ We have a new program contrary to the Biden plan to catch & release. The Texas plan is to catch & to jail. The National Guard & the Texas Dept. of Public Safety are deployed for the mission.[sic]).
[8] Complaint, supra note 6, ¶ 4.
[9] Id. ¶¶ 13-22. The named defendants in Robles are: 1) Joe Frank Martinez, sheriff of Val Verde County, Texas; 2) Val Verde County, Texas; 3) Brad Coe, sheriff of Kinney County, Texas; 4) Ricardo “Rick” Alvarado, county clerk of Kinney County, Texas; 5) Kinney County, Texas; 6) Maria Ramirez, former senior warden of the Briscoe Prison; 7) John Cirone, who took over the same duties as the senior warden of the Briscoe Prison upon Ramirez’s departure; 8) Felipe Gonzalez, senior warden of the Segovia Prison (with duties similar to those alleged of Ramirez and Cirone); 9) Ronny Taylor, who allegedly helped design, administer, and operate the Val Verde Temporary Processing Center (VVTPC); and 10) Recana Solutions, LLC, which also allegedly operated the VVTPC.
[10] “Among other things”, Inter alia, Black’s Law Dictionary (11th ed. 2019).
[11] U.S. Const. amend. XIV, § 1.
[12] Complaint, supra note 6, ¶ 165; see also U.S. Const. amend. IV.
[13] Complaint, supra note 6, ¶ 166; see also Id. at 32-36 (Counts 1-5). The Robles plaintiffs’ causes of action against all of the defendants are brought under the Fourth and Fourteenth Amendments, with an additional cause of action for negligence against Recana Solutions.
[14] Individual-capacity suits seek to impose personal liability upon a government official for actions he or she takes under color of state law, while official-capacity suits typically just represent another way of pleading an action against the governmental entity or municipality of which the government official is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). In other words, an official-capacity suit is essentially treated as a suit against the governmental entity or municipality. Where this distinction makes a difference is in the award (or collection) of damages— “[W]hile an award of damages against an official in his or individual capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover damages against an official in his or her official capacity must look to the government entity itself.” Id. at 166.
[15] Crittindon v. LeBlanc, 37 F.4th 177, 186 (5th Cir. 2022), cert. denied, No. 22-1171, 2023 WL 6377920 (U.S. Oct. 2, 2023) (quoting Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011)).
[16] Id. As the Crittindon court explained, “This typically requires showing notice of ‘[a] pattern of similar constitutional violations’ due to deficient policies, permitting the inference that Defendants deliberately chose policies causing violations of constitutional rights.”
[17] Smith v. D.C., 306 F. Supp. 3d 223, 241 (D.D.C. 2018); see also Collins v. City of Harker Heights, 503 U.S.115, 120 (1992).
[18] Connick v. Thompson, 563 U.S. 51, 60 (2011). As the D.C. Circuit has explained: “there are a number of ways in which a ‘policy’ can be set by a municipality to cause it to be liable under § 1983: the explicit setting of a policy by the government that violates the Constitution . . . ; the action of a policy maker within the government . . . ; the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become ‘custom’ . . . ; or the failure of the government to respond to a need (for example, training of employees) in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations.” Baker v. D.C., 326 F.3d 1302, 1306 (D.C. Cir. 2003) (internal citations omitted).
[19] Complaint, supra note 6, ¶¶ 151-153.
[20] Id. ¶¶ 160-162.
[21] Glenn Thrush, Some Prisoners Remain Behind Bars in Louisiana Despite Being Deemed Free, N.Y. Times, (Dec. 11, 2022), https://www.nytimes.com/2022/12/11/us/politics/louisiana-prison-overdetention.html; Glenn Thrush, Louisiana ‘Deliberately Indifferent’ to Keeping Inmates Past Release Date, Justice Dept. Says, N.Y. Times, (Jan. 25, 2023), https://www.nytimes.com/2023/01/25/us/politics/justice-department-overdetention.html#; Press Release, U.S. Dept. of Justice, Justice Department Finds Louisiana Department of Public Safety and Corrections Violates the Constitution By Incarcerating People Beyond Their Release Dates (Jan. 25, 2023), https://www.justice.gov/opa/pr/justice-department-finds-louisiana-department-public-safety-and-corrections-violates#.
[22] Crittindon v. LeBlanc, 37 F.4th 177, 186 (5th Cir. 2022), cert. denied, No. 22-1171, 2023 WL 6377920 (U.S. Oct. 2, 2023).
[23] Id. at 183-85.
[24] Id. at 188-190.
[25] Buchicchio v. LeBlanc, No. CV 22-00147-BAJ-EWD, 2023 WL 2027809, at *1 (M.D. La. Feb. 15, 2023).
[26] Thomas v. State, 294 F. Supp. 3d 576, 615 (N.D. Tex. 2018), report and recommendation adopted, No. 3:17-CV-0348-N-BH, 2018 WL 1254926 (N.D. Tex. Mar. 12, 2018) (quoting Gordon v. Neugebauer, 57 F. Supp. 3d 766, 780 (N.D. Tex. 2014)); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002).
[27] Complaint, supra note 6, ¶¶ 48, 84, 147, 167, 175.
[28] Id. ¶¶ 63, 71, 76, 83.
[29] See e.g., Id. ¶¶ 55-57.
[30] Id. ¶¶ 159, 160, 167, 175.
[31] Whirl v. Kern, 407 F.2d 781 (5th Cir. 1968).
[32] Id. at 785.
[33] “At first sight; on first appearance but subject to further evidence or information”, Prima facie, Black’s Law Dictionary (11th ed. 2019).
[34] Whirl, 407 F.2d at 792 (“The central issue in this case is one of privilege, not of intent; one of law, not of fact.”).
[35] Id.
[36] Buchicchio v. LeBlanc, No. CV 22-00147-BAJ-EWD, 2023 WL 2027809, at *10 (M.D. La. Feb. 15, 2023).
[37] Whirl, 407 F.2d at 792 (referencing “Whirl’s nine months” of detention); Buchicchio, 2023 WL 2027809, at *10 (referencing Buchiccio’s overdetention of “twelve weeks”).
[38] Whirl, 407 F.2d at 792; see also Smith v. D.C., 306 F. Supp. 3d 223, 232 (D.D.C. 2018) (23 days sufficient); Tyson v. D.C., No. CV 20-1450 (RC), 2021 WL 860263, at 1 (D.D.C. Oct. 19, 2021) (24 days); McNeal v. La. Dep’t. of Pub. Safety & Corr., No. CV 18-736-JWD-EWD, 2020 WL 798321, at 2 (M.D. La. Feb. 18, 2020) (41 days).
