When the city of Tenaha, Texas, hired Barry Washington as Deputy City Marshal, he instituted what he called the “interdiction program.” The goal was to use the pretext of a routine traffic stop to look for narcotics trafficking. Although Tenaha officers said the stops were race-neutral, the proportion of stops of minorities increased from 32 percent before the program to between 46 and 52 percent during the program.
James Morrow, who is African-American, was driving through Tenaha when Washington pulled him over, ostensibly for failing to drive in a single marked lane. Washington said he smelled burned marijuana in the car and requested that Constable Randy Whatley bring a K-9 dog to smell the car. Video from Whatley’s police vehicle captured Washington telling Whatley that if the dog alerted on the vehicle, “I’m gonna take his momma’s vehicle away from him, and I’m gonna take his money.” A cursory search of the car yielded about $4,000 in cash, which the officers took, saying they had “reasonable suspicion” to keep it. Instead of charging Morrow with the traffic offense or a drug charge, they arrested him for money laundering. The charges were later dropped. The money was returned only after Morrow retained counsel.
Washington and Whatley took thousands of dollars and personal property, like cellphones and iPods, from many other minority drivers and passengers during traffic stops. The minority individuals were often either not charged with a crime or charged with a crime that had nothing to do with the traffic offense or the alleged drug activity cited as a reason to confiscate their property. Sometimes, people signed a forfeiture-of-property agreement to avoid being arrested.
Morrow and nine others filed a class action against Washington, Whatley, Tenaha’s mayor, the county’s district attorney, and the district attorney’s investigator. They alleged the officers and select city officials created the interdiction program to target racial and ethnic minorities for illegal searches and seizures and detained or arrested them unlawfully, violating their equal protection rights.
Citing Wal-Mart Stores v. Dukes, the trial court certified the class for injunctive and declaratory relief but denied certification for monetary damages, finding that individual issues predominated. (277 F.R.D. 172 (Aug. 29, 2011).)
The defendants agreed to make several changes to Tenaha’s policies for traffic stops. Officers will notify dispatch before approaching a stopped vehicle; document the reason for the stop, the race of the driver, and every action taken; and record and videotape every stop. They will not use canines during traffic stops unless there is reasonable suspicion that a crime has been committed, and all canine searches will be videotaped and documented. For searches and seizures, officers will wait for back-up and receive written consent from the person being searched. The city will hire an independent monitor and will make quarterly reports of all traffic stops, including the documentation and videos.
The defendants will also pay attorney fees and costs.
Citation: Morrow v. Washington, No. 2:08-cv-00288 (E.D. Tex. Aug. 6, 2012).
Plaintiff counsel: AAJ member Timothy B. Garrigan and David J. Guillory, both of Nacogdoches, Texas.