There was an important ruling in a Texas Gang Database case last week in El Paso.
A disabled combat veteran named William Apodaca-Fisk sued Greg Allen who is the Chief of the El Paso Police Department and an El Paso policemen who identified as John Doe on October 14, 2019.
Apodaca-Fisk is a former Army Command Sergeant Major. He was deployed eight times and has been awarded the Legion of Merit, two Purple Hearts, and five Bronze Stars. He is the founder of the Squad Veteran Riders Motorcycle Club and he is an officer in the Southern New Mexico Council of Clubs. He is inarguably a good citizen. He is a Senior Board Advisor for the Mesilla Valley Community of Hope; Co-Chair of Willie’s Heroes Community Foundation for Wounded Warriors; a member of the Las Cruces Mayor’s Veteran Advisory Board; Vice President of the Dona Ana County Humane Society; and as a board member of the Order of Purple Heart and National Association of Amputees. He was awarded the Red Cross Regional Hero Award in 2016.
He testified during the Jake Carrizal trial in Waco. During his testimony he described one percenters as “professional bikers.”
Gang Database
He wound up in the gang database after attending a funeral at a Catholic church in El Paso. The deceased was a motorcyclist and, according to court documents, “Law enforcement heavily surveilled the funeral and took almost 4,000 photographs of the funeral’s attendees and motorcycles, despite the fact that the Catholic church and cemetery are not documented areas of criminal street gang activity. After hearing in 2019 that other motorcyclists that attended the funeral had been included in the TXGANG database, Plaintiff contacted DPS and asked if his name was in it. DPS informed Apodaca-Fisk that his information was in fact in the TXGANG database and that the EPPD had in put him into the database.”
Apodaca-Fisk sued in federal court seeking “declaratory relief that” his “inclusion in TXGANG database was improper because (1) it violates his right to associate; (2) it attaches a stigma with legal disabilities (including deterring travel and preventing him from exercising his Second Amendment rights); (3) Texas Code of Criminal Procedure Article is unconstitutionally vague overbroad; and Texas Code of Criminal Procedure Articles 67.202-203 violate substantive and procedural Due Process. On October 14,2019, Defendants filed” a “motion to dismiss for failure to state a claim.”
Lawyers for the police called Apodaca-Fisk’s complaints “entirely speculative” and suggested throwing the whole case out. Although they did volunteer to remove Apodaca-Fisk’s name from the gang fatabase which is why he is suing ion the first place. Part of the government’s argument was that he couldn’t sue until had actually been harmed.
In a turgid, timidly worded, 27-page ruling a week ago Federal District Judge David Campos Guaderrama ruled that inclusion in the Texas gang database does not violate Apodaca-Fisk’s “asspciational rights.”
Because the judge’s ruling is so cautious, it is worth quoting at length, painful though that may be.
Right Of Association
“Plaintiff (Apodaca-Fisk) pleaded that he is a member of a motorcycle club that ‘is involved in community, charitable, and political activities,’ and that “[‘t]he stigma of being in the gang database chills [his] right to associate’ with it. Thus, Plaintiffs claim appears to fall within the second strand of associational rights protected by the First Amendment. However, Plaintiff does not identify the motorcycle club’s ‘community, charitable, and political activities or viewpoints – political, social, or otherwise – that are harmed by Plaintiff’s inclusion into the TXGANG database Plaintif fhas failed to allege any facts showing that the motorcycle clubs he associated with were engaged in expressive activity. Plaintiff has not alleged that any of the clubs advocated any viewpoints, political, social, or otherwise. Likewise, Plaintiff has not alleged that the clubs were formed to foster any particular set of beliefs, nor does he allege that they promote any particular lifestyle.”
“Further, even when presuming that Plaintiffs general allegations embrace those specificxfacts necessary to support his claim, the complaint is unclear as to how exactly this alleged ‘stigma’ objectively chills Plaintiffs right to associate and prevents him from participating in expressive activities protected by the First Amendment. In other words, since the TXGANG database does not appear to ‘regulate, constrain, or compel any action’ on the part of Plaintiff, then, an alleged chilling effect alone cannot constitute an injury in fact.
“Therefore, Plaintiff has not demonstrated a specific present objective harm or threat of a specific future harm beyond mere subjective chill. Accordingly, the Court concludes that Plaintiff has failed to properly plead an injury in fact for his First Amendment claim.”
Freedom From Slander
Freedom From Slander
The judge did rule for Apodaca-Fisk and against the defenders of the gang database whn he agrees that Apodaca-Fisk was included in the gang database, which resulted in his stigmatization, without due process.
In another passage that seems to cover his rear end and tie other minds into knots, Judge Guaderrama writes:
“‘Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. Hence, “For this reason, ‘damage to an individual’s reputation as a result of defamatory statements made by a state actor, accompanied by an infringement of some other interest, is actionable
“For this type of claim, the Fifth Circuit has consistently required ‘that a section 1983 (plaintiff) show a stigma plus an infringement of some other interest.’ ‘To fulfill the stigma aspect of the equation, a claimant must prove that the stigma was caused by a false communication.’
“Courts will find sufficient ‘stigma’ only in concrete, false factual representations or assertions, by the government, of wrongdoing on the part of the plaintiff. And for the “infringement” prong, a plaintiff must establish that the government ‘sought to remove or significantly alter a life, liberty, or property interest recognized and protected by state law or guaranteed by one of the provisions ofthe Bill of Rights that has been ‘incorporated.’
“Regarding the ‘stigma’ prong of the ‘stigma-plus’ test, drawing all inferences in favor of Plaintiff, the Court concludes that he satisfies it because he pleaded a plausible concrete, false factual representation or assertion by Defendants. Plaintiff pleaded that, despite the fact that he ‘is not now, nor has he ever been, a member of a criminal street gang,’ that he is actively serving his community, and that he has never been arrested or had any kind of encounters with Texas law enforcement. Defendants still inputted him into the TXGANG database and labeled him a gangmember. ‘There is no question that being labeled a gang member harms one’s reputation.” Being labeled a gang member in a law enforcement database carries with it a stigma that is tied with ‘a host of unfortunate implications such as involvement in criminal conduct.’ Thus, accepting as true all material allegations of the Complaint, Plaintiff pleaded a concrete, false factual representation or assertion, by Defendants, of wrongdoing on his part. Yet, Defendants argue that Plaintiff failed to allege an injury because he did not cite to ‘any instance ofwhere his reputation has been defamed[,] as the information in TXGANG is confidential and may not be released to the public.” Mot. at ‘. But courts have found that a stigmatizing label can be sufficiently public even when the government shares it only with other governmental entities and agencies on a ‘need to know’ basis.”
The judge’s actual thoughts are much more difficult to follow than that and are larded with citations about every third word.
The bottom line is that Apodaca-Fisk’s suit will continue. It is also obvious after reviewing this ruling that even a Federal Judge, appoint ted by the Senate for life, is afraid to speak out against the loathsome and undemocratic practice of maintain “gang databases” to label non-conformists as “naughty.”
The reason these databases exist in the first place is to grant police permission to frame innocent people. Once you’re in the database, you become low hanging fruit for any cop with a quota to meet.
Eventually the subject must be reviewed by the United States Supreme Court.
Eventually the subject must be reviewed by the United States Supreme Court.