On April 4, 2014, the Border Crossing Law Firm prevailed in its class action lawsuit against the Montana Highway Patrol, which was brought because the Montana Highway Patrol was engaging in a practice of detaining Latino drivers and passengers for the purpose of checking into their immigration status. A final judgment was entered by U.S. District Court Judge Dana L. Christensen.  Attorneys Shahid Haque of the Border Crossing Law Firm, P.C. and Brian Miller of Morrison, Sherwood, Wilson & Deola, PLLP represented the plaintiffs in this lawsuit.

As Troy Carter of the Bozeman Daily Chronicle reports:

The Montana Department of Justice settled a lawsuit Friday filed against the Montana Highway Patrol alleging troopers routinely racially profiled Latinos and violated federal law by detaining them on minor traffic charges so they could verify their immigration status.

A group of Latinos led by Jose Rios-Diaz and the Montana Immigrant Justice Alliance, a nonprofit in Helena that defends the civil rights of immigrants, filed the case in 2013.

The plaintiffs agreed to the settlement because it stipulates that all troopers will be taught a new policy specifically instructing them to never use race as pretext for detaining a person to verify their immigration status, nor arrest a person solely because the person lacks immigration documentation, according to documents filed Friday in U.S. District Court.

Under the new policy, troopers cannot ask about immigration status based solely on a person’s race, ethnicity or language abilities. Nor can they demand drivers or passengers tell them their immigration status or detain people who choose not to answer.

According to one trooper’s written testimony submitted as evidence in the initial complaint, former MHP Col. Kenton Hicketheir had told him to do exactly that.

“In one instance Hickethier ordered me to arrest suspects I believed might be illegally in the country regardless of whether the facts supported an offense for which a person could be arrested under Montana law,” wrote Trooper Glenn Quinnelll in 2011. “His instructions were to get them to jail one way or another so federal authorities could place detainers on them.”

Hicketheir resigned from the MHP’s top post in 2013 after an investigation into discrimination against subordinates.

Friday’s settlement was signed by U.S. District Judge Dana Christensen. It does not find the MHP guilty of wrongdoing.

MHP’s Col. Tom Butler denied any discrimination in a prepared statement.

“While we believe that we have always done what the law requires, the lawsuit prompted us to enshrine in policy what has already been the practice in the field,” Butler said.

A dash cam video posted on Youtube by Shahid Haque, the plaintiff’s attorney, showed how a MHP trooper turned a speeding ticket stop into a 50-minute immigration check. The man was a U.S. citizen.

“We hope that police departments throughout the state use this policy as an example, and train their officers that they cannot demand that Latinos show them their papers, or detain people just to check their immigration status,” Haque-Hasrath said in a joint statement with the Department of Justice.

The DOJ also agreed to hire an independent police auditor and produce annual reports on MHP’s efforts to prevent racial profiling, and record all trooper contacts with the Department of Homeland Security.

In 2010, Arizona enacted Senate Bill 1070, a bill that required all aliens to carry their government paperwork with them and allowed state law enforcement agencies to inspect it during a lawful stop if there was suspicion that the person was in the country illegally. Critics panned it as a license to racially profile and an institutionalization of racial discrimination. Parts of the law were later struck down by the U.S. Supreme Court.

The Montana Legislature has not given Montana Highway Patrol any similar authority. The settlement comes two months before the plaintiff’s motion for certification as a class action lawsuit was set to be heard by the court. If certified, the plaintiffs could have publicly solicited others to join the case.

Public documents confirm that the Montana Highway Patrol had engaged in a pattern of racial profiling of Latinos in a misguided effort to enforce federal immigration laws.  This article by Troy Carter of the Bozeman Daily Chronicle discusses the misconduct in more detail:

Montana Highway Patrol troopers held Latinos stopped for traffic violations based on their appearance and accents, sometimes detaining them for hours, while waiting for federal agents to conduct immigration checks, according to evidence in a recently settled lawsuit.

Despite Montana law banning racial profiling, troopers held Latino drivers and passengers and were instructed to arrest them for traffic offenses until federal agents could take suspected illegal immigrants into custody, according to public documents in the case.

In one internal email, troopers were told to request “translation” services to detain suspected illegals until federal agents could arrive. “FYI … the key is to ask for translation. Then they take over the case after the assist,” a trooper wrote to his colleagues.

Meanwhile, records show that Highway Patrol leadership downplayed racial profiling complaints as troopers continued the practice.

The Chronicle examined hundreds of MHP internal emails and documents, dashboard camera videos and audio recordings obtained from the Helena immigration attorney who sued the patrol, Shahid Haque, after the lawsuit recently ended in a no-fault agreement.

Col. Tom Butler, the Highway Patrol’s top officer, told the Chronicle this week that the agency does not engage in racial profiling and that any specific incidents would be a tiny fraction of the 100,000 stops troopers make every year. The lawsuit ended after MHP agreed to new policies designed to train troopers on racial profiling and protect minority drivers. The plaintiffs included four Latinos and the Montana Immigrant Justice Alliance.

Local resident detained

Jose Rios-Diaz of Belgrade, a Mexican immigrant who became a U.S. citizen in 2009, was the lead plaintiff in the lawsuit. Rios-Diaz, 29, was stopped by a trooper while on his way to work. His Ford Ranger was traveling 83 mph in a 65 mph zone. The trooper became suspicious, records show, because the pickup was insured by Rios-Diaz but registered to his friend.

“I proceeded and asked Mr. Rios-Diaz how long he had lived in the United State and he responded by telling me, ‘About Uhh…10 years…’ With Mr. Rios-Diaz having allegedly been here for nearly a decade, his accent was surpri
singly thick,” Trooper Justin Moran wrote in a report to his sergeant.

While waiting to hear back from immigration enforcement authorities, Moran said he lied to Rios-Diaz to keep him calm. He told him the long wait was due to a problem verifying his insurance. After 55 minutes (MHP said it was 47), Rios-Diaz was released with a $40 speeding ticket.

“Although that was not the case and I had already verified the policy was valid, it allowed me to tell him something to calm his nerves, rather than tell him I was waiting for a call from an agency that could potentially show that he should not be in the United States,” Moran wrote to his sergeant.

Rios-Diaz’s attorney said the documents show the trooper admitted he had detained a man with an accent longer than necessary for the sole purpose of verifying his immigration status, a violation of Fourth Amendment protections against unreasonable search and seizure.

Moran called the subsequent complaint a wild accusation. Sgt. Scott Ayers, Moran’s direct supervisor, agreed. In a letter to his superior, Ayers defended Moran’s actions.

“Also of note is that Trooper Moran indicated that ICE had said that Mr. Rios-Diaz is supposed to carry his naturalization papers with him, and if he had done so, much of the confusion could have been avoided,” Ayers wrote in a report, later adding that Rios-Diaz should register the truck in his name to avoid future questions.

But Haque said MHP has attempted to shift the blame from Moran onto Rios-Diaz. He said driving a vehicle registered to another person has nothing to do with citizenship and could not have been the reason the trooper was suspicious. By law, U.S. citizens are not required to carry naturalization papers or a birth certificate.

In an interview with the Chronicle, Rios-Diaz said he was nervous when Moran pulled him over because he had been treated poorly by Mexican and U.S. police officers in the past.

“Every time they pull me over they treat me with a lot of power. At some point I had to decide that I have to fight for my rights. That’s the reason I told him he’s not supposed to ask me,” Rios-Diaz said. “Some policemen that I know are really nice. It’s not every police officer, just a few.”

The review of Rios-Diaz’s detainment went all the way to the top. Former Col. Michael Tooley, in an email to colleagues, said his wife, also a naturalized Latina, had reacted to Rios-Diaz’s story by saying, “’If he’s going to drive like an idiot maybe he should have his @#$together.” Tooley agreed with his wife. “That pretty well sums it up,” he said in the email that thanked Moran for his work.

In response to Rios-Diaz’s complaint, Tooley told Haque, “Mr. Rios-Diaz was stopped for a valid reason, speeding. Trooper Moran became suspicious upon review of the documentation attached to the vehicle and conducted an investigation to ensure there were no other violations of law outside of the initial stop. Once that was completed, he released Mr. Rios-Diaz.”

Tooley, now director of the Montana Department of Transportation, said during his time as the MHP’s colonel he had used a $400,000 grant to install the SmartCOP electronic records system to track officer behavior and traffic stops.

“In Trooper Moran’s case, we took a close look at that, and he had no such pattern of any behavior. Would I have asked the questions he asked? Probably not, but I wasn’t the one who made the traffic stop,” Tooley told the Chronicle on Friday.

In a recent deposition, Moran said it was the totality of the circumstances that led him to ask whether Rios-Diaz was in the country legally. But Rios-Diaz’s attorney contends the circumstances could apply to anyone, such as being nervous and having registration that didn’t match his insurance.

The most concerning part of Tooley’s response was that he said there was “never a doubt” that Moran was correct, Haque said, calling it bizarre that he would run it by his wife, then dismiss the complaint.

Tooley should have used the complaint as an opportunity to tell troopers that they should not go “fishing” for illegal immigrants, the attorney said.

“Instead he supported the misconduct and it continued for years…. I don’t think the troopers want to enforce immigration law per se. They want to do their jobs and look to guidance from their sergeants, captains and the colonel, and what they got was that they were supposed to be doing this,” Haque said.

Evidence from the lawsuit shows Rios-Diaz’s traffic stop wasn’t an isolated case of racial profiling, the attorney said.

According to a 2012 incident report, Sgt. Scott Ayers pulled over a car for speeding near Billings. He held the three Latino men in the vehicle for 1 hour and 40 minutes because the trooper had spotted a navigation unit, food wrappers, air fresheners, cologne and a portable battery pack in the vehicle.

He said their story about a wedding in Seattle was odd and suspected they were drug traffickers in the country illegally. But no contraband was found. He apologized to the men for making them wait while ICE investigated their immigration status, according to his incident report. Ayers reported the men were in the country illegally, but federal agents had no interest in arresting them so he let them go.

In a 2013 incident report, Trooper Lynwood Batemen explained how he stopped a pickup truck on Highway 2 in Garfield County because it did not have a front license plate. After establishing that the driver had a valid California driver’s license, Batemen asked the passenger who “had a very strong Hispanic accent” for identification. After contacting the U.S. Border Patrol, the trooper arrested both men on suspicion of being unlawfully in the country.

Haque does not dispute that some of these Latinos may have been in the country illegally. He does dispute, though, whether the patrol has the authority or training to engage in immigration enforcement.

Authority to enforce?

Montana law bans police forces from engaging in racial profiling, which is defined as the detention, official restraint or other disparate treatment of an individual solely on the basis of his or her racial or ethnic status.

“The Highway Patrol’s scope is limited by Montana Code to specific violations of the law. They are not a generalized state police force. They really are limited to certain types of things that happen on highways and public roadways,” said Haque.

Col. Tom Butler did not disagree. He said that the Highway Patrol’s main mission is enforcing Montana traffic laws, but it also has a long tradition of working with federal agencies when requested.

“But if we encounter drug issues, we work with the DEA. If we encounter someone that we have probable cause or suspect that is in the country illegally, we work with IC
E,” Butler said. “There’s no specialized enforcement related towards immigration issues. It’s just if we happen to trip over the top of it.”

Asked how a trooper can trip over an illegal immigrant during a traffic stop, Butler said that it usually happens when someone doesn’t have proper identification papers. Butler said troopers ask for passenger identification to find someone who can drive the vehicle away if the driver is arrested.

“That’s how we start talking to passengers. You need to keep in mind we’re making these stops for violations of the state of Montana traffic laws. In that, obviously identification is part of it. Well when the driver can’t be identified or we can’t confirm that he has a driver’s license, you know towing and impounding a vehicle is a whole other issue and we don’t necessarily like doing that … so we’re always trying to figure out if someone has a driver’s license,” Butler said.

But Haque said there are cases in which the driver has valid ID but passengers, who are only required to tell an officer their name and address, are questioned about their immigration status. He said passengers are subsequently arrested and sometimes transported to county jails where federal agents will retrieve them.

Montana law states that the length of a stop “may not last longer than is necessary to effectuate the purpose of the stop.” According to Haque, stops like Batemen’s should last long enough to issue the warning for the missing front license plate.

He asked if troopers should also begin holding poor people so that they can make sure the people have paid the Internal Revenue Service.

The agency’s name, Montana Highway Patrol, indicates the scope of laws troopers are authorized to enforce, Haque said.

“Immigration is definitely not one of them…. There is a refusal of law enforcement entities to just recognize that. They want to look at it like a criminal violation of the law that they can enforce,” he said.

The U.S. Supreme Court has ruled that state and local law enforcement officers “may perform the functions of an immigration officer” only in “limited circumstances” specified by federal law.

Questionable tactics

In some cases, “immigration detainers” are used to hold Latinos suspected of being illegal, which some courts have decided are unconstitutional.

An immigration detainer is an official request to hold an alien for up to 48 hours after they would be otherwise released so that federal agents may assume custody. Recent federal and district court decisions have found the use of detainers constitutionally questionable.

In 2014, the U.S. Court of Appeals for the Third Circuit found that states and local governments are not required to hold aliens at ICE’s request. Doing so amounted to commandeering state and local resources, a violation of the Tenth Amendment. Combined with 2014 rulings from two other district courts in Oregon and Rhode Island that considered the legality of detainers on Fourth Amendment questions, state and local governments could be vulnerable to lawsuits for complying with an ICE detainer, according to a congressional report.

In 2013, Trooper Barry Kilpela stopped a Chevy Tahoe on Highway 200 between Sidney and Fairview because it had tinted headlights, which are not allowed in Montana. The driver, Rene Valencia, had a valid Arizona driver’s license.

Kilpela immediately questioned two of the passengers about their immigration status. Based on the conversation, the trooper returned to his car and contacted a border patrol agent.

Kilpela described each person’s speech. Two passengers had sub-par English skills, he said. The conversation was recorded by his dash camera.

“There are four in the car,” he said. “Two of them are illegal I would guess,” and he added that the driver and one passenger “just seem a little more American than the other guys.”

He indicated he could arrest the two men before giving the border patrol officer their names. After holding the vehicle for more than 40 minutes, the two men were arrested and taken to the Richland County Jail.

Meanwhile, border patrol faxed the jail an immigration detainer.

Detainers are needed because only the federal government has the authority to determine who may be inside the U.S. In the absence of express authorization of Congress, state and local law enforcement are not allowed to directly enforce immigration law.

In 1996, Congress created a route for state and local agents to take part in enforcing certain immigration laws, including arresting illegal aliens.

Under the Illegal Immigration Reform and Immigrant Responsibility Act, local agencies can sign an agreement to investigate, apprehend and detain illegal aliens after receiving “adequate training” on immigration laws.

During the 2009 Montana legislative session, state Sen. Jim Shockley, R-Victor, proposed legislation to enact an agreement with the Department of Homeland Security. The intent was to give MHP authority to enforce immigration law.

When Shockley’s bill was before the House Judiciary Committee — where it died — Tooley testified that the cost of the agreement had been “very expensive” for the state of Colorado, costing $4.1 million over a two-year period, according to legislative archives.

Tooley questioned the bill’s fiscal note for leaving out the costs of training Montana troopers in other states and the overtime costs associated when those troopers enforced immigration laws. He said the bill’s passage should be contingent on federal funding.

During the hearing, Tooley was asked why Montana’s law enforcement academy couldn’t just train troopers on enforcing immigration law.

“We don’t have the ability to do that here in Montana, and the federal government will not sign an (agreement) unless we agree to go to their training,” Tooley told the committee.

Haque was at the 2009 hearing with Tooley. At the time he had assumed the Montana Highway Patrol was protecting the civil rights of drivers they pulled over. Today, he views Tooley’s statements differently.

“If you’re already doing this stuff, as they were, violating people’s rights without any training, without any knowledge of immigration law, and then you’re being told to enter into this agreement that will cost money, require them to get training, it would change the method they would go about it because they would have to follow specific parameters. It would make their lives harder,” said Haque.

During the lawsuit, Haque requested that the state show evidence that troopers had been given authority to engage in immigration enforcement actions.

“The only thing they ever provided was a mutual aid agreement, which is not even law,” said the lawyer. “It’s a little policy from the MHP’s own manual. It says if another law enforcement agency entity asks you for assistance you can go through a certain set of other policies to help them.”

MHP’s policy manual specifies that troopers may request assistance from a member of another law enforcement agency when it is in the best interests of safety. The policy doesn’t state troopers can contact other agencies when they suspect illegal immigrants.

The policy also states that requests for federal assistance must go through headquarters, not from troopers on the road.

“So they weren’t even following this guidance, even if it somehow could trump state or federal law,” said Haque.

Gov. Steve Bullock, who was the attorney general in charge of MHP during some of the incidents, was asked this week if he had concerns about racial profiling in Montana and if he felt like steps have been taken to prevent it.

“During my time as attorney general, we implemented measures like the SmartCop dispatch and record keeping, cultural sensitivity training … as well as implemented other policy improvements that would help prevent racial profiling in Montana,” Bullock said in an email Friday. “Everyone should be vigilant about racial profiling in our state, that’s how we prevent it.”