Case 2:08-cv-00288-JRG Document 111 Filed 02/17/10 Page 1 of 16 PageID #: 597

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

JAMES MORROW, STEPHEN STUART WATSON, AMANEE BUSBY, YUSELFF DISMUKES, LINDA DORMAN, MARVIN PEARSON, JENNIFER BOATRIGHT, RONALD HENDERSON, JAVIER FLORES, and WILLIAM PARSONS, and a Proposed Class of Other Similarly Situated Persons,
Plaintiffs
v.
CITY OF TENAHA DEPUTY CITY MARSHAL BARRY WASHINGTON, in his Individual and Official Capacity; CITY OF TENAHA MAYOR GEORGE BOWERS, in his Individual and Official Capacity; SHELBY COUNTY DISTRICT ATTORNEY LINDA K. RUSSELL, in her Individual and Official Capacity ; SHELBY COUNTY DISTRICT ATTORNEY INVESTIGATOR DANNY GREEN, in his Individual Capacity only; and SHELBY COUNTY PRECINCT 4 CONSTABLE RANDY WHATLEY, in his Individual and Official Capacity,
Defendants

§ § § § § § § § § § § § CIVIL ACTION NO. 2:08cv288 § § § JUDGE: T. John Ward § § § § § § § § § § § § § §

PLAINTIFFS’ THIRD AMENDED COMPLAINT

INTRODUCTION

1. Plaintiffs are individuals who were trav eling on public roads in, or near, Tenaha,

Texas. Defendants are all local law enforcement officials in and around the City of Tenaha, Shelby

County, Texas and the Mayor of Tenaha. However,they have developed anillegal “stop and seize”

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practice of targeting, stopping, detaining, searchi ng, and often seizing property from , apparently non-white citizens and those traveling with non-whitecitizens, including the Plaintiffs and members of the proposed class who travelin, through, or nearTenaha. The Defendants undertake this practice without legal justification, in violation of the citizens’ rights, not for any legitimate law enforcement purpose but to enrich their offices and perhaps themselves, by seizing and converting cash and other valuable personal property they can find during the course of the illegal stop and seize practice.
2. The Defendants’ actions challenged herein are in violation of at least the 4 th Amendment’s prohibition against unreasonable searches and seizures and the14th Amendment equal protection clause to the United States Constitution, made actionable by 42 U.S.C §1983.
3. Plaintiffs Morrow, W atson, Busby, Di smukes, Dorman, Pearson, Boatright, Henderson, Flores and Parsons on their own behalf and on behalf of a putative class of similarly situated persons, seek equitable relief sufficient to remedy the practices com plained of, and any available legal relief, along with all costs of suit authorized by 42 U.S.C. § 1988.
JURISDICTION 4. This Court has jurisdiction of these disputes pursuant to 28 U.S.C. § 1331.
PARTIES 5. Plaintiff James Morrow is a United States citizen and a resident of Pine Bluf f, Arkansas. 6. Plaintiff Stephen Stuart W atson is a Un ited States citizen and a resident of Washington, D.C. 7. Plaintiff Amanee Busby is a United States citizen and a resident of Maryland. 8. Plaintiff Yuselff Dismukes is a United States citizen and a resident of Wisconsin.
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9. Plaintiff Linda Dorman is a United States citizen and a resident of Ohio. 10. Plaintiff Marvin Pearson is a United States citizen and a resident of Ohio. 11. Plaintiff Jennifer Boatright is a United States citizen and a resident of Texas. 12. Plaintiff Ronald Henderson is a United States citizen and a resident of Texas. 13. Plaintiff Javier Flores is a United States citizen and a resident of Texas. 14. Plaintiff William Flores is a United States citizen and a resident of Texas. 15. The Plaintiffs seek certification of a classof similarly situated persons consisting of: (1) people who are, or appeared to be, members of racial or ethnic minority groups and those in their company, and (2) were or will be traveling in, through or near Tenaha since July 27, 2006, and (3) were, or are subject to being, stopped and detained and/or arrested by one or more of the Defendants without an articulable suspicion of criminal activity, to find valuable property or money. 14. Defendant Barry Washington is sued in hi s official capacity as a City of Tenaha Deputy Marshal, and in his individual capacit y. Defendant Washington lives in Panola County, Texas. He is represented by G. Robert Alderman, Jr. who can be contacted atZeleskey Cornelius et al., P O Drawer 1728 (1616 So. Chestnut), Lufkin TX 75902-1728 (936-633-4209). 15. Defendant George Bowers is at this tim e sued only in his official capacity as the Mayor of the City of Tenaha. Heis represented by G. Robert Alderman, Jr. who can be contacted at Zeleskey Cornelius et al., P O Drawer 1728(1616 So. Chestnut), Lufkin TX 75902-1728 (936-6334209). 16. Defendant Linda K. Russell is sued in her official capacity as the District Attorney of Shelby County, Texas and in her individual capacity. She is represented by TomHenson, who can be contacted at Ramey & Flock, 100 East Ferguson, Suite 500, Tyler TX 75702 (903-597-3301).
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17. Defendant Danny Green is an investigatorfor the District Attorney of Shelby County and is sued in his individual capacity. He is represented by Robert Davis, who can be contacted at Flowers Davis, 1021 ESE Loop 323, Ste 200, Tyler TX 75701 (903-534-8063).
18. Defendant Randy Whatley is at this time sued in his official capacity as the Shelby County Precinct 4 Constable and inhis individual capacity. He is represented by Robert Davis, who can be contacted at Flowers Davis, 1021ESE Loop 323, Ste 200, Tyler TX 75701 (903-534-8063).
COMMON FACTS 19. Each of the Plaintiffs, and each m ember of the putative class has the following circumstances in common:
(a) they appeared to be a member of a racial orethnic minority group, or were in the company of someone who appeared to be a member of a racial or ethnic minority group,
(b) they were traveling in, through or n ear Tenaha, Texas, at some time since July 27, 2006,
(c) they were, or are subject to being, stopped, detained, arrested, questioned and/or their vehicle was searched by one, or m ore, Defendants, without articulable suspicion of criminal activity to determine whether they hadcash money or any other valuable propertypursuant to the Defendants’ policy and practice of doing so, and then taking it for the Defendants’ own use and purposes.
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MORROW FACTS 20. Plaintiff Morrow is a black African American. 21. On or about August 31, 2007, Plaintiff Morrow was driving through Tenaha, Texas, when he was observed and stopped by Defendant Washington. 22. Defendant Washington had no legal justification for the stop. 23. Defendant Washington ordered Plaintiff Morrow to get out of his car. 24. Defendant Washington had no legal justification forordering Plaintiff Morrow to get out of his car. 25. Defendant Washington interrogated Plaintiff Morrow. 26. Defendant Washington had no reasonable legitimate reason for interrogating Plaintiff Morrow. 27. Defendants Washington and Whatley discovered no evidence suggesting any criminal activity as a result of the searches and interrogation. 28. Defendant Washington asked Plaintiff Morrow if he had any money. 29. Defendant Washington was without any reasonable legal reason for asking Plaintiff Morrow about whether he had money. 30. Plaintiff Morrow conceded he had money in the car, and indicated where. 31. Defendant Whatley arrived with a dog. The Defendants then searched the vehicle Morrow was driving. 32. Defendants Whatley and Washington had no legal justification for searching the vehicle.
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33. Defendants Washington and W hatley then seized, without legal justification, approximately $3969 as well as two cell phones from Plaintiff Morrow.
34. Defendant Washington arrested Plaintiff Morrow, for what he claimed was “money laundering.” Defendant Washington had no reason to believe Plaintif Morrow was guilty of money laundering.
35. Defendants Washington and Russell told Plaintiff Morrow they would hold him prisoner and prosecute himfor money laundering unless he would agree toforfeit the $3969. Under this duress and these threats, Defendants W ashington and Russell released Plaintiff Morrow and warned him to not hire a lawyer or try to get his money back.
36. Defendants never had reason to, or really intended to, prosecute Plaintiff Morrow. Any charges have been dismissed, “in the interest of justice.”
37. Plaintiff Morrow had to pay a lawyer $3500 inreasonable fees to obtain the dismissal of the bogus money laundering charges and to obtain the return of the $3969 Defendantstook from him.
38. Defendants had no articulablesuspicion of criminal activity to justify their treatment of Plaintiff Morrow. To the extent Defendants manufacture such suspicion, it has no credibility.
WATSON and BUSBY FACTS 39. Plaintiffs Stephen Stuart Watson and Amanee Busby are black African Americans. 40. On or about September 13, 2007 Defendant Washington observed Plaintiffs Watson and Busby traveling on Highway 59 in, or near, the City of Tenaha. Plaintiffs Watson and Busby were passengers in a car driven by another African American. Defendant Washington stopped the vehicle.
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41. Defendant Washington had no legal justification for stopping the vehicle in which Plaintiffs Watson and Busby were riding..
42. Defendant Washington then detained Plaintiffs Watson, Busby and the driver for a significant amount of time.
43. Defendant Washington had no legal justif ication for detaining Plaintiffs Watson, Busby or the driver.
44. Defendant Washington interrogated Plaintiffs Watson,Busby and the driver without any legitimate reason or legal justification.
45. Plaintiffs Watson, Busby and the driver e xplained that they are in the restaurant business, on vacation, and checking out restaurants, and considering opening another restaurant.
46. Without any legitimate reason or legal justification Defendant Washington sought to search the vehicle. Fearing a shakedown, Plaintiffs Watson, Busby and the driver refused to consent to Defendant Washington making an unexplained search of their car, and told himhe needed to get a warrant.
47. Defendant Washington continued to detainPlaintiffs Watson, Busby and the driver. Instead of getting a warrant he summoned Defendant Whatley, who claimed that his dog “alerted” on the vehicle.
48. Defendants Washington and Whatley continued to detain Plaintiffs Watson, Busby and the driver, without legal justification, while Defendant Washington began searching Plaintiffs Watson’s and Busby’s, and their driver’s, luggage.
49. Defendant Washingtopn found and took over $50,000, five cell phones, an I-pod, and the vehicle, from Plaintiffs Watson, Busby and the driver.
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50. Defendant Washington had no legal justification for taking the money and property. 51. Defendants Washington and Whatley then arrested Plaintiffs Watson, Busby and their driver. 52. Defendants Washington and Whatley had no legal justification for the arrests. 53. Defendants Washington, Whatley, Russell and Green took the money and property intending to divide it up. 54. Defendants threatened Plaintiffs W atson, Busby and the driver with bogus and trumped-up criminal charges, but no charges were ever brought against Plaintiffs Watson and Busby, but their driver was initially charged with money laundering – charges that were not pursued. 55. Defendants initiated bogus forfeiture proceedings against Plaintiffs Watson, Busby and the driver. At considerable expense, Plai ntiffs Watson, Busby and the driver obtained the dismissal of the bogus forfeiture proceeding. 56, Defendants had no articulablesuspicion of criminal activity to justify their treatment of Plaintiffs Watson or Busby. To the extent Defendants manufacture such suspicion, it has no credibility.
DISMUKES FACTS 57. Plaintiff Dismukes is a black African American. 58. On or about January 11, 2008 Defendant Washington observed Plaintiff Dismukes traveling on Highway 59 in, or near, the City of Tenaha, Texas. Defendant W ashington stopped Plaintiff Dismukes and friends he was traveling with. 59. Defendant Washington had no legal justification for stopping Plaintiff Dismukes and his friends.
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60. Defendants Washington and Whatley detained Plaintiff Dismukes and his friends for a significant amount of time.
61. Defendants Washington and Whatley had no legal justification for their detention of Plaintiff Dismukes and his friends.
62.. Defendants Washington and Whatley interrogated Plaintiff Dismukes and his friends about whether they had any cash money.
63. Defendants Washington and Whatley had no legitimate reason to question Plaintiff Dismukes about their money.
64. Without a warrant or other justification Defendants Washington and Whatley searched Plaintiff Dismukes, his friends and their vehicle.
65. Without a warrant or other justification, Defendants Washington and Whatley took and seized in excess of $13,000 from Plaintiff Dismukes and his friends.
66. Defendants Washington and W hatley had no real reason to think that Plaintiff Dismukes or his friends were engaged in any criminal activity.
67. Defendants Washington and Whatley, with Defendant Russell, decided to charge Plaintiff Dismukes and his friends with money laundering and engaging in criminal activity.
68. Defendants had no legitimate basis f or the crim inal charges, but did so only to facilitate their taking of money from Plaintiff Dismukes and his friends.
69. Defendants were unable to geta grand jury to indict Plaintiff Dismukes or his friends on the bogus criminal charges, and the charges were dismissed.
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70. Defendants’ actions in taking money from Plaintiff Dismukes and his friends, and bringing bogus crim inal charges against them , caused Plaintiff Dism ukes and his friends to reasonably incur legal expenses and costs to recover the wrongly taken money.
71. Defendants had no articulablesuspicion of criminal activity to justify their treatment of Plaintiff Dismukes. To the extent Defendants manufacture such suspicion, it has no credibility.
DORMAN and PEARSON FACTS 72. Linda Dorman and Marvin Pearson are black African Americans. 73. On or about April 18, 2007 Defendant Washington observed Plaintiffs Dorman and Pearson to be traveling on Highway 59 in or near Tenaha. Defendant Washington stopped Plaintiffs Dorman and Pearson. 74. Defendant Washington had no legal justification for the stop. 75. Defendant Washington detained Plaintiffs Dorman and Pearson for a significant amount of time and summoned Defendant Whatley. 76. Defendant Washington had no legal justification for detaining Plaintiffs Dorman and Pearson for a significant amount of time. 77. Defendants Washington and W hatley proceeded to search the vehicle Plaintiffs Dorman and Pearson had been travling in. 78. Defendants Washington and Whatley had no legal justification for searching the vehicle. 79. Defendants Washington and Whatley found, and took $4500 from these Plaintiffs. 80. Defendants Washington and W hatley, without legal justirication, arrested these Plaintiffs.
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81. Defendants Washington and Whatley, in consultation with Defendants Russell and Green, illegally required these Plaintiffs to signa “Waiver of Service” and “Agreed Final Judgment of Forfeiture” under threats of bogus criminal prosecution and imprisonment.
82. Defendants had no articulablesuspicion of criminal activity to justify their treatment of Plaintiffs Dorman and Pearson. To the extent Defendants manufacture such suspicion, it has no credibility.
BOATRIGHT and HENDERSON FACTS 83. Plaintiff Jennifer Boatright is white; Plaintiff Ronald Henderson is a black African American. 84. On or about April 26, 2007 Defendant Washington observed Plaintiffs Boatright and Henderson traveling together on Highway 59 in or near Tenaha. Defendants Washington and Whatley stopped them. 85. Defendants Washington and Whatley had no legal justification for stopping Plaintiffs Boatright and/or Henderson. 86. Defendants Washington and Whatley detained Plaintiffs Boatright and Henderson for a significant amount of time. 87. Defendants Washington and Whatley had no legal justification for detaining Plaintifs Boatright and Henderson for a significant amount of time. 88. Defendants Washington and Whatley interrogated Plaintiffs Boatright and Henderson about whether they had any cash.
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89. In response to the questions, PlaintiffsBoatright and Henderson conceded that they had about $6,000 in cash. Defendants W ashington, Whatley, Green and Russell then seized approximately $6,037 from them, along with a roadside assistance kit.
90. Defendants had no legal justification for seizing the money or property fromPlaintiffs Boatright and Henderson.
91. Defendants had no reason to believe that Plaintiffs Boatright or Henderson had committed any crime.
92. Defendant Washington arrested Plaintiffs Boatright and Henderson, escorting themto his office.
93. Defendant Washington had no legal justification for arresting Plaintiffs Boatright and Henderson.
94. Defendants threatened to bring money laundering charges against Plaintiffs Boatright and Henderson, and to take their children and put them in foster care if Plaintiffs Boatright and Henderson would not sign papers prepared by Defendants to authorize the seizure. Under coercion, Plaintiffs Boatright and Henderson complied.
95.. Defendants have not brought any criminal charges against Plaintiffs Boatright and/or Henderson.
96. Defendants had no articulablesuspicion of criminal activity to justify their treatment of Plaintiffs Boatright and Henderson. To the extent Defendants manufacture such suspicion, ithas no credibility.
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FLORES AND PARSONS FACTS 97. Javier Flores is Hispanic but appears to some to be African American. 98. Williams Parsons is of Macedonian descent but appears to some to be Hispanic. 99. On or about July 23, 2008, Plaintiffs Flores and Parsons were driving through or near Tenaha, Texas, on Highway 59 in a rented car with out-of-state license plates. 100. Defendant Whatley stopped Flores’ and Parsons’ vehicle without legal justification or ever charging them with a traffic offense. 101. Defendant Whatley detained Flores and Parsons on the side of the road, interrogating them without legal justification. 102. Within a few minutes of the stop and without any legal justification, Whatley asked Parsons, and eventually Flores, if they have “large sums of currency” or “cash.” 103. Suspecting a shake-down, and being unsure what constituted a large sum, Parsons and Flores reasonably did not tell Whatley about all of their money. 104. Whatley walked a dog around Parsons’ and Flores’ car, past its rear bumper three times, twice the dog sat down nearthe rear bumper. It is unclear why the dog sat on those occasions. 105. Whatley asked if he could search the car. When Parsons suggested that he needed to get a warrant to conduct a search, W haley indicated that the dog was “the warrant” and had alerted to the odor of narcotics or marijuana on the car. 106. Without legal justification, Whatley proceeded to search the car. 107. Whatley went to the trunk of the car and rummaged through the luggage and dirty clothes until he found approximately $8400, which he took. 108. When Defendant Whatley started taking the money, Parsons asked why, if there
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was some legal limit on the am ount of money he could have. W hatley said the legal lim it was $1500.
109. With City of Tenaha Marshal Fred Walker, Defendant Whatley arrested Parsons and Flores, handcuffed them and took them to Whatley’s office.
110. Defendant Whatley had no warrant or legal justification to arrest Parsons or Flores.
111. Defendant Whatley took other documents from Parsons and Flores and copied at least some of them.
112. After taking the $8400 and other documents, Defendant Whatley, in consultation with Defendant Lynda Kay Russell, gave Parsons and Flores a copy of a receipt for the omney, said they were charging Parsons and Flores with money laundering, and let Parsons and Flores go.
113. On information and belief, Defendants were unable to get a Grand Jury to induct Flores or Parsons on the bogus money laundering charges.
114. Flores and Parsons incurred legal fees of $5000 in getting Defendants to return the $8400 Defendants Whatley and Russell took from them.
115. Defendants had no articulablesuspicion of criminal activity to justify their treatment of Parsons and Flores. To the extent they manufactured articulable suspicion it is without credibility.
CLAIMS 116. Defendants’ actions and omissions described above were undertaken under color of state law, although their actions represent an abuse of authority, making the Defendants liable under 40 U.S.C. § 1983.
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117. Plaintiff Morrow, and others similarly situated, have suffered harm and continue to
suffer harm as a result of the Defendants’ actions described above. 118. Defendants’ conduct described a bove constitutes violations of 4 th and 14th
Amendment rights to equal protection of the laws and to be free from unreasonable seizures.
RELIEF SOUGHT
119.. Plaintiffs on their own behalf and othersin the proposed class seek the full measure
of equitable relief, including declaratory, injunctive and equitable m onetary relief, and the f ull
measure of legal monetary relief, including compensatory and punitive damages, consistent with the
Court’s rulings on class certification, to vindicate the rights of the Plaintiffs and prohibit the
Defendants’ wrongful conduct in the future.
120. Plaintiffs seek all costs of suit authorized by 42 U.S.C. § 1988.
Respectfully submitted,
/S/ DAVID J. GUILLORY___________ David J. Guillory State Bar No. 08596400 510 Ochiltree Street Nacogdoches, Texas 75961 Phone: (936) 559-9600 Fax:(936) 715-9339 Email: david.guillory@lonestarlegal.org
and /S/ TIMOTHY B. GARRIGAN_____________ Timothy B. Garrigan State Bar No. 07703600 Stuckey, Garrigan & Castetter P. O. Box 631902 Nacogdoches, Texas 75963-1902 Phone:(936) 560-6020 Fax:(936) 560-9578 Email: tim@sgclaw.org
ATTORNEYS FOR PLAINTIFFS
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CERTIFICATE OF SERVICE I hereby certify that I have served all parties of record in this case including the following with a true and correct copy of the foregoing PLAINTIFF’S THIRD AMENDED COMPLAINT by sending same electronically and/or via FAX/hand delivery/U. S. mail, postage prepaid: Tom Henson Ramey & Flock 100 East Ferguson, Suite 500 Tyler TX 75702 Robert S. Davis / Chad C. Rook Flowers Davis 1021 ESE Loop 323, Ste 200 Tyler TX 75701 G. Robert Alderman, Jr. Zeleskey Cornelius et al. P O Drawer 1728 Lufkin TX 75902-1728 on this the 17th day of February, 2010.
/S/ TIMOTHY B. GARRIGAN ______________________________ Attorney for Plaintiffs
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 Case 2:08-cv-00288-TJW Document 233 Filed 08/29/11 Page 1 of 58 PageID #: 1809

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, and a Proposed Class of §

Other Similarly Situated Persons

§

Plaintiffs,

§

§ CIVIL ACTION NO. 2-08-cv-288-TJW

v.

§

§

CITY OF TENAHA DEPUTY CITY

§

MARSHAL BARRY WASHINGTON, et al §

Defendants.

§

MEMORANDUM OPINION AND ORDER Pending before the Court is Plaintif fs’ Motion for Class Certification (Dkt. No. 179), Plaintiffs’ Supplemental Motion for Class Certif ication (Dkt. No. 194), and Plaintiffs Second Supplemental Motion for Class Certification (Dkt. No. 213). In the motions, the named plaintiffs (“Plaintiffs”) seek certification of a class of motorists and pas sengers who are subject to the City of Tenaha’s allegedly discriminatory interdiction program under Federal Rule of Civil Procedure 23(b)(2) for declaratory, injunctive, and m onetary relief. The Court held a hearing on the motions on November 9, 2010, but, at the parties’ request, stayed its ruling on the motions for class certification to give the pa rties an opportunity to m ediate this case (Dkt. No. 212). Then, on December 6, 2010, the Suprem e Court accepted certiorari in Wal-Mart Stores, Inc. v. Dukes , to determine, in part, “[w]hether claim s for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) – which by its te rms is lim ited to injunctive or corresponding declaratory relief – and, if so, und er what circumstances.” 131 S.Ct. 7 95 (2010). Because the Supreme Court’s ruling weighed so heavily on the issu e of class certification in this case, the court stayed its ruling on the motion for class certification pending the Supreme Court’s ruling in Wal-Mart. The Supreme Court issu ed its ruling in Wal-Mart on June 20, 2011. See Wal-Mart
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Stores, Inc. v. Dukes , 131 S.Ct. 2541 (2011). After consid ering the parties’ filings, evidence,

oral arguments, and the applicable law, the Court ORDERS that the motion for class certification

should be GRANTED- IN-PART and a Rule 23(b)(2) class certified for injunctive and

declaratory relief as discussed below. However, the Court does not certify any claim

s for

monetary relief as part of the Rule 23(b)(2) class.

I. Background Plaintiffs bring this action against various city officials in Tenaha, located in Shelby

County, Texas, including Deputy City Marsha l Barry Washington (“ Washington”), Mayor

George Bowers (“Bowers”), Shelby County District Attorney Linda K. Russell (“Russell”),

Shelby County District Attorney Investigator Danny Green (“Green”), and Shelby Count

y

Precinct 4 Constable Randy Whatley (“Whatley”). P laintiffs allege that the Defendants

developed an illegal “stop and seize” practice of targeting, stopping, detain ing, searching, an d

often seizing property from individuals who are, or appear to be, m embers of a racial or ethnic

minority and their passengers. Plaintiffs refer to th is allegedly discriminatory stop and seize

practice as Tenaha’s “interdiction program ” and allege that it began when Tenaha hired

Washington as a Deputy City Marshal on November 1, 2006, and is still ongoing. According to

Plaintiffs, defendants Washington and W hatley targeted members of the prop osed class f or

traffic stops because of their race or ethnicity an d then, with the approval and com plicity of the

other defendants, subjected them to detention, arrest, or search and seizure without legal

justification and in vio lation of their cons titutional rights. Plaintiffs further allege that the

Defendants instituted the interdiction program in order to enrich their offices and themselves by

seizing and converting cash and other valuable personal property they could find during the

course of the illegal stop and seize practice. Plaintiffs claim that the Defendants’ conduct

violates their Fourth Am endment right to be free from unreasonable searches and seizures an d

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their Fourteenth Am endment rights to equal protect ion and due process. Plaintiffs seek classwide declaratory, injunctive, and equitable monetary relief, as well as compensatory and punitive damages.
A. Tenaha’s “Interdiction Program” The City of Tenaha hired W ashington in the fall of 2006 to be a Deputy City Marshal.
Deposition of Barry Washington (“Washington Depo”) at 56:11 -14, Exhibit 1 to Plain tiffs’ Motion for Class Certif ication (“Opening Brief”) (Dkt. No. 179). The evidence demonstrates that shortly after W ashington started on Novem ber 1, 2006, the City of Tenaha began its “interdiction program.” See Washington Depo at 51:15-16, 64:16-17, 68:12-69:4, 70:8:19, 97:23-99:18; Deposition of George Bowers (“Bowe rs’ Depo”) at 41:3-7, Exhibit 5 to Opening Brief; First Deposition of Randy Whatley on April 12, 2010 (“ Whatley Depo I”) at 89:17-90:21, Exhibit 2 to Opening Brief.
Defendant Whatley, the Shelby County Precin ct 4 Constable, testified that he understood that the goal of the interdiction program was to stop as m any people as possible for traffic violations to look for other crim inal activity, primarily narcotics trafficking. W hatley Depo I at 124:23-125:13. Whatley testified that over the course of the interdiction program that as m any as 500 or even 1,000 people were stopped as part of the interdiction program. Whatley Depo I at 158:1-8. Both Washington and Whatley testified that the interdiction program evolved, but was never written down and that there was never any one in charge of it. Washington Depo at 68:1269:4; Whatley Depo I at 126:16-127:8. However, Constable Whatley also testified that all of the citizens caught up in th e interdiction program were subject to the same rules and treated the same. Whatley Depo I at 85:8-21. In addition, Tenaha City Marshal Fred W alker (“Walker”), who was designated by the City of Tenaha to testify about the interdiction program on its behalf,
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testified that all citizen s are treated according to the same rules under the interdiction progra m
and that there have been no changes made to the interdiction program. Walker Depo at 5:23-6:8,
45:20-24, 85:8-12. W alker also testified that there are no lim its to the searches that can be
performed under the inte rdiction program, that whether to arrest som eone under the interdiction
program is up to the discretion of the officer who m ade the stop, and that there are no lim its on
what the officer can seize under the interdiction program. Deposition of Fred W alker (“Walker
Depo”) at 30:4-33:20, Exhibit 4 to Opening Brief.
Deputy Marshal Washington testified that God “ordained” him to patrol Highway 59, and
that God gave him the gift of being able to put crooks in jail. Washington Depo at 55:18-19 and
65:2-5. Washington described the “interdiction traffic stop philosophy” in his deposition, saying
that “when we’re m aking traffic stops, you have to look beyond th e initial traffi c stop and the
traffic violation if somebody is giving you indicators that there’s crim inal activity taking place.”
Washington Depo at 73:13-17. W hen asked what those indicators of crim inal activity might be,
Washington responded:
Well, there could be several thing s. There could even be indicators on the vehicle. The number one thing is you have two guys stopped, and these two guys are from New York.
They’re two Puerto Ricans. They ’re driving a car that has a Baptist Church symbol on the back, says First Baptist Church of New York.
They’re traveling during the week, when m ost people are working and children are in school. They’ve borrowed this car from their aunt, and their aunt is back in New York.
You interview the two m en, and they don’t have a job, and they’re on vacation. They don’t h ave any substantial amount of luggage for the two people to travel from New York to Houston.
They’re nervous. They have conflicting stories. Som etimes they don’t even know each oth er. They m ay have em blems on the car th at have Gregg County Sheriff’s Office on it. Just indicators.
Washington Depo at 73:19-74:18.
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During interdiction stops, once Washington or Whatley made the decision to seize money

or property and/or arrest an individual, they would call the Shelby County District Attorney’s

Office or Defendant Russell, the Shelby County District Attorney, to reach a consensus as to

how to proceed—i.e., w hether to release the in dividuals, arrest them , seize their property, or

return property that had already been seized. Whatley Depo I at 163:21-168:19. District

Attorney Russell had an agreem ent with the Tenaha Marshal’s office and the Constable’s office

on what percentage of the seizures the District Attorney would get. Whatley Depo I at 148:3-21.

Plaintiffs allege that the interdiction program targets drivers or passengers who are or

appear to be m embers of a racial or ethnic m inority. To support this assertion, Plaintiffs offer

statistical evidence that the proportion of racial and ethnic m

inorities stopped in Tenaha

increased dramatically in 2007, shortly after the interdiction program began in November 2006.

Plaintiffs allege that th e only disclo sed racial p rofiling information in this cas e—the “Tier 1

data”—reflects a dramatic increase in the proportion of Tenaha’s traffic stops of non-Caucasians

in 2007. See Tiered 1 profiling data for Tenaha from 2003 through 2009 (“Tier 1 Data”), Exhibit

17 to Opening Brief. Based on P laintiffs’ calculations, from 2003 th rough 2006, before the

interdiction program was put into effect, an average of about 32% of Tenaha’s traffic stops were

of non-Caucasians. In 2007, the first full year of the interdiction program, the proportion of nonCaucasians increased dramatically to between 46.8% and 51.9%, depending on the records used.1

Plaintiffs argue that when this difference is s tatistically analyzed, the probability of the increase

occurring as a m atter of random chance approachs ze ro. Plaintiffs also argue that the increase

 1 In 2007 Te naha changed the format of the report for the Tier 1 data on stops, and appears to have shifted the 12 months covered in each year. Accordingly, Plaintiff calculated the percentage of non-Caucasians stopped i n 2007 using 2007 data reported in the ori ginal and revised format. Exhibit 17 t o the Opening Brief li sts the 2007 information in the original format as 2007a and the 2007 information in the revised format as 2007b. 2007a reflects that 51.9% of the stops were of no n-Caucasians while 2007b reports that 46.8% of the stops were of nonCaucasians. See Tier 1 Data.
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remains similarly significant for 2008, where the number of non-Caucasians stopped was 45.7%. Plaintiffs further argue that in 2009, after this lawsuit was filed, the proportion shifted dramatically, decreasing to only about 23% of Tenaha’s stops involving non-Caucasians. Plaintiffs contend that this drop occurred after the lawsuit. Plaintiffs, therefore, argue that th e high proportion of m inorities subject to traffic stops under the interdiction program supports an inference that non-Caucasians were selectively targeted for stops as part of the interdiction program.
Plaintiffs also suggest that the real m otivation behind Tenaha’s interdiction program was to confiscate money and property from those stopped in order to enrich the city of Tenaha and the Defendants personally. In other words, Plaintiffs allege th at the Defendants had no legitimate reason to suspect that those stopped by the interdiction program were engaged in criminal activity, but, neverth eless, detained them , arrested them , and often searched their vehicles without justification in the hopes that they would find valuables or m oney that could be confiscated and used to enrich the City of Tenaha and themselves. Additionally, Plaintiffs allege that Defendants had no reason to suspect that the money and property often confiscated under the interdiction program was related to suspected criminal activity. In sup port of th is allegation, Plaintiffs provided evidence that th e City of Tenaha cou ld not articulate any reason to su spect that Plaintiffs Morrow, Flores, or Parsons, the proposed class representatives, or named Plaintiffs Watson, Busby, Dismukes, Dorman, or Pearson were engaged in criminal activity. Walker Depo at 8:1-11:2 and 94:1-96:4. As d iscussed in more detail below, the ev idence shows that each of the proposed class representatives and named plaintiffs were arrested and/or deta ined, had their vehicles searched, and had their property confiscated.
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The offense report for B oatright and Henderson indicates that th ey were initially stopped

for “driving in the left lane for over a half m ile without passing and crossing over white line.”

Offense/Incident Report for Ronald Henderson and Jennifer Lynn Boatwright

(“Boatright/Henderson Offense Report”) at MOR00121, Exhibit F to Defendants’ Response to

Motion for Class Certification (“Response”) (Dkt. No. 201). Boatright is white, but Henderson

is African-American. Third Am ended Complaint at ¶ 83. Walker stated that when he stopped

named Plaintiffs Boatright and Henderson, they had been smoking m arijuana and that there was

drug paraphernalia in the car, including a glass m arijuana pipe in the center console. W alker

Depo at 96:15-97:7, 99:25-100:19. Walker also claimed that Boatright and Henderson admitted

to buying illegal narcotics in Houston. Id. However, W alker could not explain how the $6,000

seized from Plain tiffs Boatright and Henderson was related to any crim inal activity. W alker

Depo at 99:25-100:19. The Boatright/Henderson Offense Report indicates that W ashington and

Whatley believed the cash to be the proceeds from narcotics trafficking because Boatright and

Henderson: (1) were traveling from Houston, Texas to Linden, Texas; (2) were in a rental car;

(3) had been sm oking marijuana; (4) watched tra ffic passing while they were stopped; (5) and

admitted to buying m arijuana at a bar. Boatright/Henderson Offense Report at MOR00123-

MRO00124. According to the Offense Report, these were “common fac tors” of illegal narcotics

trafficking. Id. at MOR00124.

Similarly, the offense report for named plainti ffs Busby and Watson states that they were

passengers in a car driven by Dale Christopher Agostini, who is African-Am

erican.

Offense/Incident Report for Dale Christopher Agostini, Am anee Yasameen Busby, and Stephen

Stuart Watson (“Busby/Watson Offense Report”) at MOR00300-302, Exhibit G to Response.

Busby and Watson are also African -American. Third Am ended Complaint at ¶ 39. They were

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stopped for “traveling in left lane marked for pa ssing only and would not m ove to right lane to let vehicle move from middle medium.” Id. at MOR00300. The report indicates that the vehicle was searched after Constable Whatley’s drug dog, K-9 Bo, “gave a pos itive alert on the rear left door area of the vehicle.” Id. However, there is no evid ence in the record to indicate that the roughly $50,000 in cash seized from the car w as related in any way to criminal activity. Id. During his deposition as the representative of the City of Tenaha, Walker could not articulate any reason to suspect that Watson or Busby were engaged in criminal activ ity. Walker Depo at 8:111:2 and 94:1-96:4
The offense report for nam ed plaintiff Yuselff L. Dsimukes (“Dismukes”) indicates that he was one of two cars traveling together that were pulled over by Defendant W ashington for speeding violations. Offense Report of Eric Johnson, Dareyl Danield, Yuselff L. Dism ukes (“Dismukes Offense Report”) at MOR00001-MOR00004, Exhibit H to Response. However, the report is somewhat unclear as to the specific speeding violation prom pting the stop. The report states: “the vehicle was stopped for speeding over 35 m ph, clocked on radar at 41 mph and 49 mph in a 45 m ph speed zone and at 60 m ph in a 55 m ph posted zone.” Id. at MOR00003. Dismukes is African-American. Third Am ended Complaint at ¶ 57. The report indicates that Defendant Washington “smelled the odor of burned m arijuana” in both cars and that the K-9 Bo alerted to the vehicle in which Mr. Dism ukes was a passenger. Id. After speaking with Defendant Russell, all three m en, including nam ed plaintiff Dismukes, were arrested based on the fact that there were “large sum s of US currency; odor of burned m arijuana, [and] marijuana residue” in one of the cars. Id. at MOR00004.
According to the police report, named plaintiffs Dor man and Pearson w ere pulled over for “no LP ligh t and FTC.” Offence/Inciden t Report of Linda M. Dor man and Marvin C.
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Pearson (“Dorman/Pearson Offense Report”) at MOR00108, Exhibit B to Response. Dorm an

and Pearson are African-American. Third Amended Complaint at ¶ 72. The offense report also

indicates that Washington “could smell a faint odor of what [he] believed to be marijuana” in the

car and that K-9 Bo ale rted on the car. Dorm an/Pearson Offense Report at MOR00108 . The

report indicates that Washington searched th e car and found roughly $4,000 in cash as well as

“green leafy substance and seeds ” in the van. Id. at MO R 00109. Washington also found

“alterations in the van that appeared to used [sic] in the past to haul illegal contraband.”

Id.

Dorman and Pearson both signed an “Agreed Fina l Judgment of Forfeiture” in which they

forfeited the money found in the vehicle. Agreed Final Judgm ent of Forfeiture dated April 20,

2007, at MOR00119-MOR00120, Exhibit A to Response.

Plaintiffs point out that none of the named Plaintiffs had criminal cases filed against them

in the Shelby County District Clerk’s office. Deposition of Lori Oliver (“Oliver Depo”) at 36:8 -

12 (in summary), 10:21-34:23 (each na med Plaintiff discussed), Exhibit 7 to Opening Brief. I n

fact, all of the nam ed Plaintiffs who hired counsel had their civil forfeitu re cases dismissed and

the money and property confiscated as part of th e interdiction program returned to them. Oliver

Depo at 10 :21-34:23 (each nam ed Plaintiff discussed individually). Only nam ed Plaintiffs

Dorman and Pearson, from whom $4,000 was seized, did not hire counsel and did recover the

money Defendants seized from them. Id. However, the Shelby County District Clerk testified

that Defendants obtained undated waivers of serv ice and agreed judgm ents from several of the

named Plaintiffs, apparently at the time of the seizures, including Dorman, Pearson (Oliver Depo

at 21:24-27:12), Boatright, and Henderson (Oliver Depo at 28:23-29:22).

The Plaintiffs allege that the interdiction program is ongoing in Tenaha. As support, they

point to the fact that as of April 21, 2010, the date of W alker’s deposition as the city’s designee,

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there had been no changes m ade to the interdiction program . W alker Depo at 45:17-24. Defendants, however, argue that Defendant Washington is no longer the Constable of Precinct 4, Deposition of Rich Campbell dated May 19, 2 010 (“Campbell Depo I”) at 22:14-17, Exhibit I to Response, and that Shelby County does not currently operate an interdiction program other than those maintained by municipalities and the DPS. Deposition of Rick Ca mpbell dated August 11, 2010 (“Campbell Depo II”) at 23:2-17, Exhibit J to Response.
B. The Morrow Stop Named Plaintiff Jam es Morrow (“Morrow”) is African Am erican and a proposed class
representative. He was stopped, detained, questioned, and his person and car were searched by Defendant Washington on August 31, 2007. In addition, Washington seized $3,969 and two cell phones from Morrow and arrested him . W ashington Depo at 169:13-21; see also Offense/Incident Report for Ja mes Morrow (“Morrow Offense Report”) at MOR00212, Exhibit 12 to Opening Brief. Although the traffic su mmons indicates that Morrow was stopped for failing to drive in a single marked lane, it does not appear that Washington charged Morrow with this traffic offence. See Traffic Summons/Notes 29535 (“Morrow Traffic Summons”) at MOR 00263, Exhibit 10 to Opening Brief. Instea d, Washington charged Morrow with m oney laundering. Id. The Offense Report indicates that W ashington smelled “the odor of burned marijuana” in the car an d “noticed several burns in seat upholstery and signs of m arijuana use.” Morrow Offense Report at MOR00211. W ashington contacted Constable W hatley and asked him to bring the K-9 Bo. Id. A cam era in Constable W hatley’s vehicle recorded the Morrow stop from the tim e that Constable W hatley arrived on the scene. Video of Morrow Stop (“Morrow Video”), Exhibit 1 at class certification hearing on November 9, 2011 (“Class Cert.
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Hearing”), Disc 1 of 2. When Constable W hatley arrived on the scene, the following dialogue

took place between Washington and Whatley:

Washington: Would you take your K-9. If he alerts on the vehicle, I’m gonna take his momma’s vehicle away from him, and I’m gonna take his money.

Whatley: Oh, yeah. OK.

Washington: I’m gonna take his stuff from him.

Whatley: [Chuckles] OK.

Morrow Video at 00:00:48-00:01:08.

According to the Morrow Offens e Report, K-9 Bo al erted on the vehicle. Id.

Washington then searched the vehicle and seized roughly $4,000.

Id. at MO R00211-213.

During the initial search of the vehicle W hatley appears to discover the cash near th e glove

compartment and chuckles. Morrow Video at 00:04:20. A few mom ents later, Whatley takes

the dog to the back of the vehicle and states that the dog alerted “right in there.” Id. at 00:05:40.

“That may be some sort of a hauling spot. But you definitely got reasonable suspicion anyway

on the funds.” Id. However, neither W ashington nor Whatley appear to search that area of the

car in any meaningful way to determine if there are, in fact, drugs in th e car. Id. The visibility

of the video is som ewhat obscured by the p lacement of W ashington’s car between the cam era

and Morrow’s car. Add itionally, much of the d ialogue is difficult to understand because of the

traffic noise on the video. However, based on the Court’s careful review of the video, W hatley

and Washington appear to do only a cursory search of the car, find the money, and confirm with

each other that they hav e reasonable suspicion to keep the f unds. Morrow Video. During th e

search, the following conversation transpires between Whatley and Washington:

Whatley: How much funds he have?

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Washington: He’s gonna have about $4,000 with what he got in his pocket. You know, just nickel and dime stiff.
Whatley: Yeah. Id. at 00:07:50. Whatley then leaves the scene, and the video ends without either Washington or Whatley arresting Morrow.
In his deposition, W ashington stated that he confiscated Morrow’s money and cell phones because he believed that they were connected to crim inal activity. W ashington claims that he based this belief on the fact that Morrow had conflicting stories an d that there were signs of marijuana use in the car. W ashington Depo at 169:22-193:19; see also Morrow Offens e Report at MOR00211-212. However, W ashington did not charge Morrow with a drug offense, and could not explain why signs o f marijuana use in the car would link the seiz ed property to illegal activity. Id.
Ultimately, Washington’s reason for seizing the property and arresting Morrow app ears to be the fact th at Morrow allegedly told Washington that he was traveling from Little Rock to the Galleria Mall in Houston. Id. Washington ’s belief that the Galleria Mall in H ouston is a hotspot for narcotics trafficking and that “[n]ine out of ten arrests in seized cu rrency reveals traffickers pick up narcotics and sell narcotics at the Galleria Mall.” Id.; Morrow Offense Report at MOR00210-213. Washington also testified that one of reasons he was suspicious of Morrow was because Morrow could not id entify the n ame of the cousin he said he was visiting in Houston. However, the police reports, W ashington’s own notes, and the video of the stop suggest that Morrow did provide the na me of the cousin he was visiting. Compare Washington Depo at 171:7-8, 174:24-25, 178:16-20, and 182:7-8 with 190:11-192:9; see also Morrow Video at 00:00:01. After his arrest, Morrow hired a lawyer. The money laundering charges were then dropped and the money was returned to Morrow. Letter from Russell to Tim James, Exhibit. 13
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to Opening Brief. District Attorney Russell stat ed in a letter to Morrow’s attorn ey that she believed, after reviewing the offens e report, that there was “no probable cause to pursue this matter further” and that she would “not feel co mfortable . . . presenting this case to the Grand Jury.” Id.
C. The Flores and Parsons Stop Named Plaintiffs Javier Flores (“Flores”) and W illiam Parsons (“Parsons”) are proposed
class representatives. Flores is Hispanic, but Plaintiffs claim that he appears to some to b e African American. Parsons is of Macedonian descent, but Plaintiffs claim that he appears to some to be Hispanic. Flores and Parsons were traveling through Tenaha on July 22, 2008 when they were stopped by Defendant Whatley. The video of the stop indicates that W hatley stopped them for speeding. Video of Flores/Parsons Stop (“Flores/P arsons Video”) at 00:00:55, Exhibit 1 at Class Cert. Hearing, Disc 2 of 2, Video 10. After asking Flores to exit the car, W hatley stated: “While I’m waiting on your driver’s licen se, I’m going to just walk m y dog around.” Flores/Parsons Video at 00:01:57. Defendant Whatley detained Flores and Parsons, questioned them, searched their car, seized $8,400, arrested them , and threatened them with m oney laundering charges before releasing them . Whately Depo at 204-16-205:4; see also Third Amended Complaint at ¶¶ 97-100 (Dkt. No. 111); Whately’s Offense/Incident Report of 7.23/08, Exhibit 15 to Opening Brief. W hatley did not charge Flores or Parsons with a traf fic offense. Whatley Depo I at 205:5-207:3. Whatley testified that he searched Flores’ and Parsons’ car because his narcotics do g alerted to drugs. However, no d rugs were found in the car. Id. at 81:12-82:19 and 208:15-209:9. W hatley did find and seize $8,400 in their luggage in the trunk of the car and charged them with money laundering. Id. at 200:17-201:21. Whatley testified that he seized the money because he believed it was contraband based on his training and experience
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and the fact that (1) his drug dog alerted to the car, (2) Flores and Parsons seem ed uneasey, (3)

there were bandanas on the luggage, (4) the clothing in the luggage looked too large for Flores

and Parsons, (5) the m oney was bound by a rubber band and (5) a DEA officer in Pennsylvania

identified Flores and Parsons as a “m eth and ice dealer. ” Id. at 207:4-208:9, 209:16-211:4,

207:4-214:14, 214:7-217:5, and 202:1-15. At the scene of the traffic stop, W ashington told both

Flores and Parsons that they were being detained for “possession

of money laundering.”

Flores/Parsons Video at 00:33:35. After Flores and Parsons were taken back to the police

station, Washington told them that they were being detained but that he could not tell them what

the charges were unless they were arrested. Flores/Parsons Video at 00:42:50. Washington

indicated that the reason they were being detained was because of “discrepancies on - - about - -

about the amount of money and placem ent of th e money and different thing s like that. ”

Flores/Parsons Video at 00:42:17. Whatley concluded that the m oney seized was connected to

unspecified narcotics activity in Pennsylvania, based on his experience and training. However ,

Whatley never identified what kind of narcotic s activity, what kind of dr ugs were involved, and

never asked the autho rities in Pen nsylvania if they had any reason to think there was a

connection. Id. The Court’s review of the video record of Flores and Parson’s stop and arrest

also indicates that W hatley was not aware of the rumors of Flores’ or Parsons’ alleged

connection to drug activity at the tim e Whatley searched the car, seized the money, and detained

the men. Flores/Parson Video at 00:00:01 to 01:32:50. The video of the stop also shows that

Defendant Washington arrived at the scene w hile Whatley was searching the car; however,

Washington did not actively p articipate in the search. See Flores/Parsons Video at 00:20:30.

Flores and Parsons were no-billed by a grand jury and District Attorn ey Russell returned th e

seized money. Letter from Russell to John Smith, Exhibit 16 to Opening Brief.

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II. Discussion The class certification determ ination rests within the sound discretion of the trial court,

exercised within the co nstraints of Federal Rule of Civil P rocedure 23. Oscar Private Equity

Invs. v. Allegiance Telecom, Inc ., 487 F.3d 261, 264 (5th Cir. 2007). The party seeking

certification bears the burden of estab lishing that all requirem ents of Rule 23 have been

satisfied.” Unger v. A medisys Inc., 401 F.3d 316, 320 (5th Cir. 2005). “Rule 23 does not set

forth a m ere pleading standard. A party seeking class certification m

ust affirmatively

demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in

fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart, 131 S.Ct.

at 2551 (original em phasis). Before granting certification, a court must conduct a rigorous

analysis to determine whether the plaintiffs have met the Rule 23 requirem ents. Castano v. Am.

Tobacco Co., 84 F.3d 7 34, 740 (5th Cir. 1996). “[S]ometimes it m ay be necessary for the cou rt

to probe behind the pleadings bef ore coming to rest on the certifica tion question,” and the

“rigorous analysis” required of th e court m ay “entail so me overlap with the m erits of the

plaintiff’s underlying claim .” Wal-Mart, 131 S.Ct. at 2551 (quotation and citatio ns omitted).

However, a district court cannot deny certification based on its be lief that the plaintiff could not

prevail on the merits. Castano, 84 F.3d at 744 (citing Miller v. Mackey Int’l, 452 F.2d 424, 427

(5th Cir. 1971)). The Court has an independent duty to determ ine the propriety of the class

certification and is not limited to the arguments made by the parties. See Daniels v. City of New

York, 196 F.R.D. 409, 413 n.5 (S.D.N.Y. 2001); Anderson v. Cornejo, 2000 WL 286902, at *3

(N.D. Ill. 2000). Because a district court m aintains great discretion in certifying and managing a

class action, a district court’s decision to certify a class will be reversed only upon a showing that

the court abused its discretion, or that it applied incorrect legal standards in reaching its decision.

James v. City of Dallas, Texas, 254 F.3d 551, 562 (5th Cir. 2001).

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A. Adverse Inferences Before analyzing the requirements of Rule 23, the Court will address two issues that were raised in the class certification briefing regarding whether the Court should draw adverse inferences from (1) the failure of Tenaha and th e Constable’s Office to collect and report racial profiling information as required by Texas law and (2 ) Defendant Russell’s an d Defendant Green’s refusal to answer questions during their depositions on Fifth Amendment grounds.
1. Adverse Inference based on Failure to Maintain Racial Profiling Information
First, the Court will co nsider whether to draw an adv erse inference from the failu re of Tenaha’s law enforcement agencies to collect and report racial profiling evidence, as required by Texas Law. Plaintiffs argue th at this failure supports an inference that the Defendants were actively attempting to conceal ev idence regarding the discriminatory aspects of the interdictio n program. At the very least, however, P laintiffs argue th at this failu re should excuse an y perceived deficiencies in the statistical analysis. The Court agrees.
Texas Law requires that all law enforcem ent agencies adopt a “detailed written policy on racial profiling” that requires the agency to co llect racial profiling inform ation for all traffic stops, arrests, and searches and seizures, as well as repo rt racial p rofiling information to the governing bodies served by the agency. T EX. CODE CRIM. PRO. § 2.132(b)(6) and (7) (2001). 2 The evidence clearly demonstrates that Tenah a’s law enforcement agencies did not comply with these statutory requirements. Defendant W hatley testified, and Defenda nts do not dispute, that the Precinct 4 Constable’s office of Shelby County is a law enforcem ent agency, but that he did not have a racial profiling policy or report the racial profiling inform ation to the County. Whatley Depo I at 133:1-136:13. W hatley also testified that he was aware of no way to
 2 This section of the Texas Code of Criminal Procedure was amended in 2009, but the relevant provisions are the same. See TEX. CODE CRIM. PRO. § 2.132(b)(6) and (7) (2009).
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determine if he was disproportionately stopping members of ethnic groups. Id. The statistical evidence that has been produced in this case, the Tier 1 data provided by the Tenaha police department, appears to be the only racial profiling information kept by any of Tenaha’s law enforcement agencies. This Tier 1 data includes inform ation about the racial m ake-up of stops made in Tenaha, but not the required information on detentions, searches, or seizures. See Tier 1 Data. Accordingly, it is undisputed that both the Tenaha police departm ent and c onstable’s office failed to collect racial profiling inform ation that they were required by law to collect and report and that would have clearly shown the impact of th e interdiction program on racial and ethnic minorities. Under these circum stances, the Court is persuaded that the failure of the Tenaha police department and th e constable’s office to collect, report, and m aintain racial profiling information gives rise to an inference that this failure was the result of an attem pt to conceal the illegal targeting of racial and ethnic minorities for stops, detentions, arrests, searches, and seizures as part of the interdiction pro gram. To hold otherwise would allow law enforcement agencies, counties, and municipalities to avoid liability for discriminatory practices by choosing not to maintain records related to those practices.
2. Adverse Inference based on Defendants Russell’s and Defendant Green’s Assertion of the Fifth Amendment
Next, the Court will ad dress the is sue of whether to draw an adverse inference for purposes of class certification based on Defendant Russell’s and Defendant Green’s assertion of the Fifth Am endment and refusal to answ er questions during their depositions on class certification issues. On April 15, 2010, the Court stayed discovery as to defendants Russell and Green for 9 0 days du e to ind ications that bo th were subject to pend ing criminal investigations related to the same facts and circumstances giving rise to this lawsuit (Dkt. No. 149). Upon the expiration of the 90 day stay, both Defendants Russell an d Green req uested a further stay of
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discovery directed towards them until th e conclusion of the crim inal investigations into their activity (Dkt. Nos. 167 and 169). On July 10, 2010, the Court issued an order denying both motions for protection. (Dkt. No. 177). The Court reasoned that (1) neither Russell nor Green provided any evidence that they were currently under indictment or that indictments against them were imminent or even certain; (2) staying discove ry toward them would result in an indefinite delay in the proceedings and prejudice the Plaintiffs; and (3) the public interest w ould best be served by the prompt resolution of the case. In its order denying the stay, the Court ruled that it would “limit any adverse inference arising from e ither defendant’s decision to invoke his or her Fifth Amendment right to class certification is sues.” At their depo sitions, both Russell and Green refused to answer any questions whatsoever, other than identifying them selves by name, based on their Fifth Am endment right against self incrim ination. See Deposition of Lynda K. Russell (“Russell Depo”), Exhibit 1 to Plaintiffs’ Supplemental Motion for Class Certification (“First Supp. Motion”) (Dkt. No. 194); Deposition of Danny Green (“Green Depo”), Exhibit 2 to First Supp. Motion.
“[W]hile a person m ay refuse to testify during civil proceedings on the ground that his testimony might incriminate him ... his refusal to testify m ay be used against him in a civil proceeding.” Hinojosa v. Butler , 547 F.3d 285, 292 (5th Cir. 2008) (quoting Farace v. Indep. Fire Ins. Co., 699 F.2d 204, 210 (5th Cir.1983)). It is well settled that “the Fifth A mendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them .” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). However, whether or not to perm it such an adverse inference in a civil case is left to th e discretion of the district court. Hinojosa, 547 F.3d at 29192 (quoting FDIC v. Fid. & Deposit Co., 45 F.3d 969, 977 (5th Cir. 1995)).
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Plaintiffs argue that Ru ssell’s and Green’s assertion of their Fifth A mendment right against self incrim ination to every s ubstantive question asked at th eir depositions justifies th e Court drawing an adverse inference on the is sues of num erosity, commonality, typicality, adequacy, and whether Defendants acted on grounds that apply generally to the m embers of the proposed class. Defendants, however, argue that it would be prejudicial for the Court to draw an adverse inference agains t all of the Defendants because only Russell and Green invoked their Fifth Amendment right against se lf incrimination. Additionally, Def endants argue that, as a practical matter, there is no way for the Court to draw an ad verse inference against Russell and Green without that adverse inference likewise being drawn against all of the Defendants. There is ample evidence, however, that the Defendants acted in co ncert with respect to the interd iction program. For exam ple, Whatley testified that he and Washington called the District Attorney’s office during interdiction stops to determine whether to release the individuals, arrest them, seize their property, or return property that had al ready been seized. W hatley Depo I at 163:21168:19. Whatley also testified th at Russell had an agreem ent with the Tenaha Marshal’s office and the Constable’s office on what percentage of the seizu res the District Attorney would get. Whatley Depo I at 148:3-21. Because the evidence suggests that al l of the Defendants acted in concert with resp ect to the in terdiction program, the Court finds that there is no prejudice in applying any adverse inference drawn from Russell’s and Green’s refusal to an swer questions to all of the Defendants.
Defendants further argue that becau se the merits of Plaintiffs’ case do not turn on class certification, the questions related to class certification are not the type of probative evidence that can be the basis for an adverse inference. The Court is not persuaded by Defendants’ argument.
Russell and Green refused to answer questions regarding:
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x the interdiction program and what ro le the District Attorney’s office play ed in the interdiction program, see Russell Depo at 39-43; Green Depo at 32-35;
x the number of citizens who were affected by th e interdiction program, see Russell Depo at 82-84; Green Depo at 52-53;
x whether the treatment of Morrow, Flores, and Parsons was typical of others subject to the interdiction program, see Russell Depo at 80-82; Green Depo at 49-50;
x what type of records are kept by the district attorn ey’s office regard ing cases th at are presented for the filing of criminal charges; see Russell Depo at 9-10;
x racial profiling, see Russell Depo at 50-52 and 80; Green Depo at 39; x traffic stops, see Russell Depo at14, 41, 48-49, 60, 111-12, and 118; Green Depo at 38-
39; x detentions, see Russell Depo at 52 and 119; Green Depo at 40 and 72-73; x searches, see Russell Depo at 54-55, 61, and 119; Green Depo at 40 and 73; x seizures, see Russell Depo at 57-59, 110, and 120; Green Depo at 41-43; x arrests, see Russell Depo at56-58, 67, and 120; and x expenditure of forfeiture funds, see Russell Depo at 96-117; Green Depo at 33 and 64-72. Russell also cited her right against self incrim ination and refused to answer the question: “You discussed with Barry Washington and Randy Whatley how to make racially-motivated stops and make those stops appear legal, didn’t you?” See Russell Depo at 118:18-20. These topics, and the questions asked by Plaintiffs with respect to these topics, are highly probative of the issue of class certification. Defendants attempt to dow nplay the significance o f Russell’s and Green’s refusal to answer these questions by pointing out that Russ ell and Green participated in other forms of discovery—i.e. they provided docum entary evidence. However, as discuss ed earlier, Tenaha and Shelby County failed to collect th e required racial profiling data, and, thus, this highly probative information could not be obtained through docum entary evidence. In addition, Whatley testified that he was aware of no way to determine if he was disproportionately stopping
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members of ethnic groups. W hatley Depo I at 133:1-136:13. Accordingly, m uch of the highly relevant information sought from Russell and Green during their depositions—i.e. whether those stopped, detained, arrested, searched, or whose property was seized pursuant to the interdiction program were disproportionately minorities—was not available through alternative forms of discovery.
Finally, Defendants argue that because the actions of Whatley and W ashington directly relate to class certification is sues, Russell’s and Green’s testim ony is irrelev ant to class certification. Russell and Green did not m aintain, however, that they had no relevant information in response to Plaintiffs questions. To the contrary, they responded that they were refusing to answer Plaintiffs’ questions—which related to class certification—because their answers might incriminate them. The im plication is that Russell and Green had information relevant to the issues of class certification but that they withheld the information because they feared it would be incriminating.
Accordingly, the Court concludes that it is appropriate to draw an adverse inference on the issues of num erosity, commonality, typicality, adequacy, and whether Defendants acted on grounds that apply generally to the m embers of the proposed class from Russell’s and Green’s refusal to answer questions on Fifth Amendment grounds.
B. Adequacy of Class Definition The Fifth Circuit has held that the existence of an ascertainable class of persons to be represented by the prop osed class representative is an im plied prerequisite of Federal Rule of Civil Procedure 23. See John v. National Sec. Fire & Cas. Co. , 501 F.3d 443, 445, n.3 (5th Cir. 2007) (“It is elementary that in order to maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable”) (quoting DeBremaecker v. Short , 433
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F.2d 733, 734 (5th Cir. 1970)). The proposed class m ust be clearly defined so that it is administratively feasible for the Court to determine whether a particular ind ividual is a member. Daniels, 198 F.R.D. at 414 (citing Rios v. Marshall , 100 F.R.D. 395, 403 (S.D.N.Y. 1983) (quoting 7 Charles Alan W right & Arthur R. Miller, Federal Practice and Procedure § 1760 at 581 (1972)). The Court m ust be able to m ake this determination without having to answer numerous fact-intensive questions. Id. (quoting Williams v. Glickman, 1997 U.S. Dist. LEXIS 1683, at *13 (D.D.C. 1997)); see also Crosby v. Social Sec. Admin. , 796 F.2d 576, 580 (1st Cir. 1986) (explaining that a class d efinition should be based on objective criteria so that class members may be id entified without individualized fact finding). “A clas s definition is inadequate if a court must m ake a determ ination of the m erits of th e individual claim s to determine whether a particular person is a m ember of the class.” Ja mes Wm. Moore et al., Moore’s Federal Practice ¶ 23.21[3][c] (3rd ed. 2007).
1. Plaintiffs’ Proposed Class Definition Plaintiff’s proposed class consists of people who: 1. Are, or appear(ed) to be, m embers of racial or ethnic m inority groups and those in their company, and 2. Were, or will be, traveling in, throu gh, or near Tenaha at any tim e after October 2 006, and subject to the Defendants’ interdiction program, 3. Were or are subject to being stopped, detained and/or arrested by one or m ore of the Defendants without articulable suspicion of criminal activity, and/or 4. Were or are questioned and/or their vehi cle was or is search ed by one or more Defendant, without an articul able suspicion of crim inal activity, to find valuable property or money. Defendants contend that Plaintiffs’ proposed class definition is too vague and does not adequately define the boundaries of those included in the proposed class. Although the Court does not agree with all of the Defendants’ argumen ts, the Court does ag ree that Plaintiffs’ class
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definition is imperfect. For exam ple, Plaintiff’s proposed definition wou ld require the Court to

clearly define the in terdiction program to iden tify class m embers. Defendants also object to

defining the class based on whether “an articu lable suspicion of criminal activity” exists. The

Court proposed this language in an earlier order based, in part, on the S outhern District of New

York’s certification of a sim ilar class with a def inition based on “the absence of th e reasonable

articulable suspicion of criminal activity.” See Daniels v. City of New York, 198 F.R.D. 409, 412

(S.D.N.Y. 2001); see also Order dated August 20, 2009, Dkt. No. 86. However, the factual

record developed as part of the briefing and argum ent on the m otion for class certification

establishes that proposed class representatives Morrow, Parsons, and Flores are not m embers of

such a class. For exam ple, the evidence indicates that Defendants had “an articu lable suspicion

of criminal activity” with respect to the detention, arrest,

and search of proposed class

representative Morrow as well as the subsequent seizure of his property. The Morrow Offense

Report indicates that Defendant W ashington smelled “the odor of burned m arijuana” in the car,

“noticed several burns in seat upholstery and signs of m arijuana use,” and that Defendant

Whatley’s drug dog alerted on Morrow’s car. Morrow Offense

Report at MOR00211.

Defendant Washington also testified that he confiscated Morrow’s money and cell phones

because Washington believed that Morrow’s conflicting stories and th e signs of d rug use in the

car suggested that the property was related to crim inal activity. W ashington Depo at 169:22-

193:19; Morrow Offens e Report at MOR00211-212l. Although the Court believes that these

alleged explanations likely do not rise to the level of reasonable articulable suspicion justifying

the actions of Whatley and W ashington given the surrounding circum stances, they do m eet the

requirements of “articulable suspicion” in the proposed class definition. Accordingly, Morrow is

not a member of the proposed class as currently defined.

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Likewise, the Defendants have provided “an articulab le suspicion of crim inal activity” with respect to the detentions and searches of proposed class representatives Parsons and Flores as well as the seizure of their property. De fendant Whatley testified that he searched Flores and Parsons’ car because his narcotics d og alerted on the car. Whatley Depo I at 209:1-7. W hatley also testified that h e seized the m oney because he believed it was co ntraband based on th is training and experience and the fact that (1) his drug dog alerted to the car, (2 ) Flores an d Parsons seemed uneasey, (3) there were bandanas on the luggage, (4) the clothing in the luggage looked too large for Flores and Parsons, (5) the money was bound by a rubber band and (5) a DEA officer in Pennsylvania identified Flores and Parsons as a “m eth and ice dealer. ” Id. at 207:4-208:9, 209:16-211:4, 207:4-214:14, 214:7-217:5, and 202:1-15. As with the Morrow stop, the Court’s review of the entire record rev eals numerous inconsistencies and suggests that Defendant Whatley’s actions with respect to F lores and P arsons may not have been legally justified. However, th e “articulable suspicion” standard in the p roposed class definition was designed to avoid the need for individualized determ inations as to the reasonableness of each detention, arrest, search, and seizure. See Order dated August 20, 2009, Dkt. No. 86. Because Defendants have demonstrated “an articulable suspicion of criminal activity” with respect to the treatment of Flores and Parsons, they are not m embers of Plaintiffs’ proposed class as currently defined.
To certify a class under Rule 23, plaintiffs must show they are members of the class. See Forbush v. J.C. Penney Co., 994 F.2d 1101, 1105 (5th Cir.1993). Accordingly, certifying a class of which the proposed class representatives are not members, such as Plaintiffs’ proposed class, is inappropriate.
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2. The Court’s Modified Class Definition However, the flaws in Plain tiffs’ proposed class definition are not fatal to class certification of any class based on Defendants’ alleged m isconduct, only to the specific class definition proposed by Plaintiffs. “District courts are p ermitted to limit or modify clas s definitions to provide th e necessary precision.” In re Monumental Life Ins. Co. , 365 F.3d 408, 414 (5th Cir. 2004) (citing Robidoux v. Celani, 987 F.2d 931, 937 (2nd Cir.1993) (“A court is not bound b y the clas s definition proposed in the complaint and shou ld not d ismiss the action simply because the complaint seeks to define the class too broadly”); Harris v. Gen. Dev. Corp., 127 F.R.D. 655, 659 (N.D. Ill. 1989) (“[I]t is certainly within this court' s discretion to lim it or redefine the scope of the class”); Meyer v. Citizens & S. Nat’l Bank , 106 F.R.D. 356, 360 (M.D. Ga. 1985) (“The Court has discretion in ruling on a m otion to certify a class. This discretion extends to defining the scope of the class.”)). The Court, therefore, m odifies the class definition as follows: (1) People who are, or appear to be, m embers of racial or ethnic m inority groups and
those in their company, and (2) Were, or will be, traveling in, th rough, or near Tenaha at any tim e after November 1,
2006, and (3) Were, or are, subject to being stopped by one or m ore Defendant for an alleged traffic
violation. Defendants have argued that the inclusion of those who were m erely stopped as part of the interdiction program is overb road because the s tops themselves are not action able. Defendants rely heavily on the Suprem e Court’s decision in Whren v. United States to support their assertion that the traffic stops at the heart of Plaintiffs’ case cann ot be discrim inatory so long as the stops were the result of actual traffic violations. See 517 U.S. 806 (1996). In Whren, the Supreme Court held that the constitu tional reasonableness of traffic stops und er the Fourth
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Amendment does not depend on the actual motivations of the individual officers involved. Id. at 812-13. Based on this principle, the court rejected a claim that a traffic stop violated the Fourth Amendment’s prohibition against unreasonable searches and seizures unless a reason able officer would have been motivated to stop the car by a desire to enf orce the traffic laws. Id. at 813-18. While the Suprem e Court m ade it clear that the subjective motivations of an officer have no bearing on the reasonableness of a s earch under the Fourth Amendment—the only constitutional claim at issue in Whren—it also clarified that racially m otivated traffic stops would run afoul of the Equal P rotection Clause of the Fourteen th Amendment. Id. “The Constitu tion prohibits selective enforcement of the law based on considerations such as race.” Id. at 813. Thus, under Whren, targeting racial m inorities for enforcement of traffic laws is a viola tion of the Equal Protection clause of the Fourteenth Am endment. In other words, the fact that clas s members may have comm itted traffic vio lations will not abso lve the Defendants und er the Equal Protection Clause of th e Fourteenth Amendment if the Defendants targeted racial m inorities in enforcing the traffic laws. Accordingly, Whren supports the inclusion of those members of racial and ethnic minorities stopped as part of the interdiction program because Plaintiffs allege that the Defendants targeted racial and ethn ic minorities for selective enforcem ent of traffic laws in violation of the Equal Protection Clause of the Fourteenth Amendment.
Defendants also oppose the inclusion in the class of those who m ay in the future be subject to the interdiction program. Although those who may be stopped while traveling through Tenaha at some point in the future are not capable of being specifically identified, this is not a bar to certification of a Rule 23(b)(2) class. The Advisory Committee Notes for Rule 23(b)(2 ) make it clear that specific enum eration of ev ery member of a (b)(2) injunctive class is not necessary because the illustrative cases for this subdivision “are various action in the civil-rights
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field where a party is ch arged with discriminating unlawfully against a class, usually one whose

members are incapable of specific enumeration .” F ED. R. CIV. P. 23(b)(2) 1966 Advisory

Committee’s Note (emphasis added). Based on this, the district court in

In re Cincinnati

Policing certified an in junctive settlement class of “African-American or Black persons and

people perceived as such who reside, work in and/or travel on public thoroughfares in the City of

Cincinnati, Ohio either now or in the future and who are stopped, detained, or arrested by

Cincinnati Police Officers . . .” in a suit agains t the city of Cincinnati and two of its police

officers alleging racially discrim inatory enforcement practices by the city police departm ent.

209 F.R.D. 395, 397-400 (S.D. Oh. 2002).

Accordingly, the Court finds that the proposed Rule 23(b)(2) class, as described in the

Court’s modified class definition, is adequately defined and clearly ascertainable.

C. Rule 23 Requirements

Once the class is adequ ately defined, plaintiffs must show that the proposed class m eets

all of the requirem ents of Rule 23. Under Rule 23(a), the party seeking certification m ust

demonstrate that

(1) the class is so num erous that joinder of all m embers is im practicable [numerosity];

(2) there are questions of law or fact common to the class [commonality];

(3) the claims or defenses of the representative parties are typical of the claim s or defenses of the class [typicality]; and

(4) the representative parties will fairly an d adequately protect the interests of the class [adequacy].

FED. R. CIV. P. 23(a); Wal-Mart, 131 S.Ct. at 2548.

Second, the proposed class m ust satisfy at least one of the three requirem ents listed in

Rule 23(b). Plaintiffs rely on Rule 23(b)(2), which applies wh en “the party opposing the class

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has acted or refused to act on grou nds that apply generally to the class, so that fin al injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” F ED. R. CIV. P. 23(b)(2).
1. Rule 23(a) Requirements a) Numerosity
To satisfy the num erosity requirement, the court m ust inquire whether the class is so numerous that joinder of all m embers is impracticable. See Watson v. Shell Oil Co ., 979 F.2d 1014, 1022 (5th Cir. 1992). The plaintiff need not establish the exact num ber of potential class members to m eet the num erosity requirement. Smith v. Texaco, Inc ., 88 F.Supp.2d 663, 674 (E.D. Tex. 2000), vacated on other grounds 281 F.3d 477 (5th Cir. 20 02); Newberg on Class Actions, § 3.5 (4th ed.); Barragan v. Evanger’s Dog and Cat Food Co., Inc ., 259 F.R.D. 330, 333 (N.D. Ill. 2009) (“a plaintiff does not need to dem onstrate the exact num ber of class members as long as a conclusion is apparent from good-faith estimates”). To determine whether the numerosity requirement has been met, the court “must not focus on sheer num bers alone but must instead focus on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.” Pederson, 213 F.3d at 868 (internal citations omitted). Other relevant factors include the geographical dispersion of th e class, the ease with which class members may be iden tified, the nature of the action, and the size of each plaintiff’s claim . Zeidman v. J. Ray McDermott & C o., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981); Smith, 88 F. Supp. 2d at 674. No definite standard exists as to the size of class that satisfies the num erosity requirement. Garcia v. Gloor, 609 F.2d 156, 160 (5th Cir. 1980). However, the Fifth Circuit has held that a class consisting of 100 to 150 members is “within the range that generally satisfies the numerosity requirement.” Mullen v. Treasuer Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir.
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1999) (citing 1 Newberg on Class Actions § 3.05, at 3-25 (3d ed.1992) (suggesting that any class
consisting of m ore than forty m embers “should raise a presumption that joinder is
impracticable”)). In the absence of any definitive pattern for num erosity in terms of the number
of purported class members, the Fifth Circuit has left the num erosity determination to the sound
discretion of the district court in controlling its litigation. Zeidman, 651 F.2d at 1038-39.
Tenaha’s Tier 1 racial profiling data indicates that between 2007 and 2009, 829 non-
Caucasians were stopped under the interdiction program. Tier 1 Data, Ex. 17 to Opening Brief .
This number is significantly high er than the 100 to 150 range th at the Fifth Circuit holds is
within the range that generally satis fies the numerosity requirement. Mullen, 186 F.3d at 624.
Even taking the lower end of the estim ated number of c lass members, numerosity exists.
Defendant Whatley estim ated that he stopped upwards of 500 or possibly 1,000 people, and
Washington estimated that he stopped at least 100 people during the relevant tim e period.3 The
Tier 1 racial profiling data indicates that from 2007 to 2009, anywhere from 22.8 % to 51.9% of
the interdiction stops w ere of non-Caucasians.4 Applying the lowest possible number of stops
based on Whatley’s and Washington’s testimony—600—and applying the lowest percentage of
minority stops for the time period—22.8%5—there would still be roughly 136 class members. In
 3 Defendants Whatley and Washington were res ponsible for m ost of t he traffic stops in the i nterdiction program. Whatley I Depo at 159:14-21.Whatley testified that the i nterdiction program involved upwards of 500 or possibly 1,000 people, and Washington testified that he stopped more than 100 people during the interdiction program but could not say if that number was more or less than 500. See Whatley Depo I at 158:1-8 and 160:3-7; Washington Depo at 124:21-126:11. However, neither Whately nor Washington could estimate th e proportion of nonCaucasians included in these stops. Washington Depo at 126:12-17; Whatley Depo I at 160:8-17. Additionally, the City of Tenaha’s 30(b)(6) designee on the interdiction program and the number of apparent minorities stopped, City Marshal Fred Walker, did not know how many people have been stopped as a result of the i nterdiction program since July 2006, the ethnicity of t he people who were stopped, or the proportion of those stopped who were ethnic minorities. Walker Depo at 81:20-82:11. Accordingly, the only reliable information regarding the number of racial and ethnic minorities stopped under the interdiction program is the Tier 1 racial profiling data. 4 The Tier 1 data indicates that 51.9% of those stopped in 2007 were racial and ethnic minorities and 45.7% of those stopped in 2008 were racial and ethnic minorities. In 2009, after the lawsuit was filed, the percentage of racial and ethnic minorities stopped dropped to 22.8% of the total stops. Id. 5 This number represents the percentage of racial and ethnic minorities stopped under the interdiction program in 2009, after this lawsuit was filed.
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Mullen, the Fifth Circuit upheld a district court’s finding of numerosity of a class with

approximately 100-150 m embers where the district court reasonably inferred that som e of the

class members would be geographically dispersed and, thus, that joinder of them would be

impractical. 186 F.3d 620, 624 (5th Cir. 1999). Because th e class members are travelers on an

interstate highway, U.S. 59, the class m embers are likely to be geographically dispersed, further

indicating that joinder is impracticable. For example, six of the ten nam ed plaintiffs—Morrow,

Watson, Busby, Dis mukes, Dorman, and Pearson—are from out-of-state. See Third Am ended

Complaint, ¶¶ 5-10 (Dkt. No. 111). Therefore, it is abundantly

clear that the num erosity

requirement has been met with respect to the class.

b) Commonality

The Supreme Court recently clarified the stan dard for determining whether commonality

exists under Rule 23(a)(2). See Wal-Mart, 131 S.Ct. at 2551-2557.

Commonality requires the plaintiff to dem onstrate that the class m embers have suffered the sam e injury. This does not m ean that they have all suffered a violation of the sam e provision of law. . . . Their claim s must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the sam e supervisor. That common contention, m oreover, must be of such a nature that it is cap able of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

Id. at 1551 (internal citations and q uotations omitted). Accordingly, the commonality analy sis

“requires the court to d etermine (1) whether the class members’ claims ‘will in fact depend on

the answers to comm on questions,’ and (2) whether classwide proceed ings have the capacity to

‘generate common answers apt to drive the resolution of the litigation,’” United States v. City of

New York, 2011 WL 2680474, at * 3 (S.D.N.Y. 2011) (quoting Wal-Mart, 131 S.Ct. at 2554 and

2551, respectively) (ad ditional citations and q uotations omitted)). Answering th ese questions

will necessarily overlap somewhat with Plaintiffs’ m erits contention th at Tenaha’s interdiction

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program constitutes a pattern and practice of discrim ination against members, or those who appear to b e members, of a racial or ethn ic minority, and their passengers, by targeting these individuals for illegal stops, detentions, arrests, and/or searches and seizures. See Wal-Mart, 131 S.Ct. at 2552 (“In this case, proof of commonality necessarily overlaps with respondents’ m erits contention that W al-Mart engages in a pattern or practice of discrim ination”) (original emphasis). To demonstrate commonality, Plaintiffs must have “significant proof” that Tenaha’s interdiction program operates as a “general policy of discrimination.” Id. at 2553.
In Wal-Mart, the Supreme Court reversed certif ication of a class of form er and current female employees of Wal-Mart who brought a Title VII class action ag ainst Wal-Mart alleging sex discrimination in Wal-Mart’s pay and promotion practices. The Suprem e Court’s decision rested, in part, on the plaintiffs’ failure to satisf y the commonality requirem ent of Rule 23(a). The plaintiffs in Wal-Mart did not allege that Wal-Mart had an express corporate policy against the advancement of women. Instead, the allegation was that the lack of a uniform hiring policy led to broad discretions on the part of local m anagers in pay and promotion decisions. Because the local managers were susceptible to systemic gender biases in the Wal-Mart culture, the local managers’ discretion o ver pay and prom otions was, according to the plain tiffs, exercised disproportionately in favor of m en, leading to an unlawful disparate im pact on fe male employees. Wal-Mart, 131 S.Ct. at 2548. The Suprem e Court rejected the argum ent that a lack of a com pany-wide policy regarding hiring could be considered to be a pattern or practice of discrimination, at least where plaintiffs provided no substantiation of system atic discrimination beyond anecdotal evidence and flawed statistical analysis. “In a com pany of W al-Mart’s size and geographical scope, it is quite unbelievable that all m anagers would exercise their discretion in a comm on way without som e common direction.” Id. at 2555. The evidence provided by
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Wal-Mart consisted of: (1) the testim ony of a sociological expert that W al-Mart’s corporate culture made it vulnerable to gender bias—although that expert co uld not say with any certainty what percentage of W al-Mart’s employment decisions were based on ster eotypical thinking; (2) testimony from another expert that Wal-Mart pr omotes a lower percentage of wom en than its competitors; and (3) an ecdotal evidence of allegedly discrim inatory employment decisions by certain individuals at a proportionately sm all number of Wa l-Mart stores. Id. at 2554-56. The Supreme Court held that this evidence did not rise to the level of significant proof that Wal-Mart operated under a general policy or practice of discrimination, as required to satisfy the commonality requirement of Rul e 23(a), especially given W al-Mart’s announced policy forbidding sex discrim ination in hiring, pay, and prom otion decisions, and that W al-Mart imposed penalties for denial of equal em ployment opportunities. Id. at 2553. “Because respondents provide no convincing proof of a com panywide discriminatory pay and prom otion policy, we have concluded that they have n ot established the ex istence of an y common question.” Id. at 2556-57.
The facts of this case are quite d ifferent from Wal-Mart. Unlike Wal-Mart, this is not a case where the Plaintiffs are attempting to use anecdotal evidence of discriminatory treatment by individuals in a few location s as evidence that a nation-wide policy of discrim ination is implemented by the discretionary decisions of thousands of individuals at thousands of locations all across the country. Plaintiffs allege that th ere was a specific, city-wide policy in Tenaha of targeting racial and ethnic minorities for traffic stops and then illegally detaining and/or arresting them or conducting illeg al searches and seizures of their property, i.e. th e interdiction program. Plaintiffs further allege that the interdiction program was conceived and implemented by a small number of Tenaha police officers and city officials work ing in concert during a specified tim e
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period. While the statistical evidence presented by Plaintiff is not perfect, it clearly shows that

the proportion of m inorities stopped in Tenaha increased dram atically once the interdiction

program was instituted. The increase in the number of m inorities stopped under the interdiction

program was so rem arkable that it is statistica lly impossible that it wa s the result of anything

other than a decision to target racial and

ethnic m inorities. Additionally, as Wal-Mart

emphasized, “‘[c]ivil rights cases against pa rties charged with unlawful, class-based

discrimination are prime exam ples’ of what (b)(2) is m eant to capture. ” Id. at 2557 (quoting

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997)). This is just such a case.

Applying standard announced in Wal-Mart, the commonality is satisfied. Plaintiffs have

offered “significant proof” that Tenaha’s interd iction program operates as a “general policy of

discrimination.” Wal-Mart, 131 S.Ct. at 2553. First, Plaintiffs have offered statistical evidence

that the number of racial and ethnic m inorities stopped in and around Tenaha increased

dramatically when the interdiction program was implemented. From 2003 through 2006, a n

average of about 32% of Tenaha’s traffic stops were of non-Caucasians. In 2007, however, the

first full y ear of the interd iction program, the proportion of non-Caucasians increased

dramatically to between 46.8% and 51.9%. The percentage of non-Caucasians stopped in 2008

was 45.7%. Plaintiffs argue that when this difference is statistically analyzed, the probability of

the increase occurring as a m atter of random chance approachs zero. P laintiffs also argue that

the increase remains similarly significant for 2008, where the number of non-Caucasians stopped

was 45.7%. The percentage of non-Caucasians dropped precipitously in 2009 after the

commencement of this lawsuit to 22.8%. Id. The statis tical analysis shows th e statistical

significance or number of standard deviations, and probability of the increase in proportions of

non-Caucasians stopped in Tenaha after the Defendants began the interdiction program . For

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2007, the standard deviation is 10.92 or 10.85, and for 2008, the standard deviation is 6.56. See Tier 1 data. Plaintiff argues that these numbers indicate that it is highly unlikely that the increase in the proportion of non-Caucasians stopped once the interdiction program began in late 2006 could occur randomly. See Casteneda v. Partida, 430 U.S. 482, 496 n.17 (1977) (“As a general rule for such large samples, if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the jury drawing was random would be suspect to a social scientist.”).
Defendants, however, question the validity of Plaintiffs’ statistical analysis and argue that it is in adequate because it does n ot compare the general racial and ethinic m ake-up of all motorists traveling in, near, or though Tenaha with the racial and ethnic m ake-up of those who were stopped as part of the interdiction program . In support of their argument, Defendants point to the Seventh Circuit’s decision in Chaves v. The Illin ois State Police, 251 F.3d 612 (7th Cir. 2001). The plaintiffs in Chaves presented evidence that a disproportionate num ber of AfricanAmericans and Hispanics were stopped as related to the general ethnic proportions of the State of Illinois. See id. The Court found that the statistical evidence was lacking because statistics showing the general eth nic proportions of the State of Illinois did not necessarily reflect th e racial makeup of motorists on Illinois highways. Id. at 645. However, this case is readily distinguishable from Chaves. Plaintiffs do not argue that the proportion of non-Caucasians stopped under the interdiction program is statistic ally significant because it differs from the proportion of non-Caucasians in the population generally either in the State of Texas or of travelers on the highway, as in Chaves. Instead, Plaintiffs argue that the proportion of nonCaucasians to Caucasians stopp ed under the interdiction program is statistically significant
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because it varies so dramatically from the proportion of non-Caucasians to Caucasians stopped in the same area before the implementation of the interdiction program.
In addition to the statistical analysis, Plaintiffs have provided anecdotal evidence that th e stops of class representatives Morrow, Flores, and Parsons were discrim inatory and were based not on a desire to curb illegal activity, but on racial profiling and Defendants’ desire to enrich themselves and their offices.
Finally, as discussed previously, the Court finds that the failure of Tenaha and the constable’s office to collect, report, and m aintain racial profiling inform ation, as required by Texas law, gives ris e to an inference that this failure was the result of an attem pt to conceal the illegal targeting of racial and ethnic m inorities for enforcem ent of the interd iction program. This, coupled with the adverse inference drawn from the refusal of Defendants Russell and Green to answer relevant questions based on the Fifth Am endment suggests that Defendants created an illegal practice of targetin g racial and ethnic minorities for pretextual traffic stops as part of the interdiction program —i.e. that Tena ha’s interdiction program operates as a general policy of discrimination.
Based on this evidence, the Court is convinced that the claim s of members of the class all depend on the answer to the common question of whether Defendants’ interdiction program targeted members of racial and eth nic minorities for selective enforcem ent of the traffic laws in violation of the Equal Protection Clause of the Fourteenth Amendment. See Wal-Mart, 131 S.Ct. at 2554. The Court is also convinced that a clas swide proceeding on this issues will “generate common answers apt to drive the resolution of the litigation” because the answer to this question will conclusively establish whether Tenaha’s in terdiction program is discrim inatory and, thus, whether an injunction putting an end to Tenaha’s interdiction program is warranted Id. at 2551.
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Accordingly, the Court finds that the commonality requirement is met. c) Typicality
Under the typicality requirem ent, the nam ed plaintiffs must demonstrate that th ere is sufficient “similarity between [their] legal and rem edial theories and the legal an d remedial theories of those whom they purport to represen t.” Lightbourn v. County of El Paso , 118 F.3d 421, 426 (5th Cir. 1997). The threshold for demonstrating typicality is low. Id. Typicality does not require identity of claim s, but only that “the class representative’s claim s have the sam e essential characteristics of those of the putative class. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.” James v. City of Dallas, Tex., 254 F.3d 551, 571 (5th Cir. 2001).
Plaintiffs argue that there is und isputable evidence that proposed class representatives Morrow, Flores, and Parsons were subjected to discrim inatory stops under the interdiction in the same manner as the m embers of th e proposed class. As a result, Plaintiffs contend that their claims are typical of those of the proposed class. Plaintiffs also argue that Defendant Washington’s testimony that “that’s the way we do it” when asked if his treatm ent of Morrow was typical and W alker’s testimony that all citizens subject to the interdiction were treated according to the same rules under the program removes any credible doubt as to typicality. See Washington Depo at 193:14-24. The Court agrees.
When Defendant Washington was asked if the treatm ent of named Plaintiff Morrow was typical of the interdiction program , Washington responded, “That’s the way we do it” and described the incident as a “very good exam ple of pretty good police work.” W ashington Depo at 193:14-24. Sim ilarly, Tenaha City Marshal W alker, who was Tenaha’s 30(b)(6) designee regarding the interdiction program, testified that there had b een no chan ges to the interd iction
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program and that all citizens were treated according to the sam e rules under the program . Walker Depo at 45:20 -24 and 85:8-12. Althou gh each stop under the interdiction program may have a slightly different factual situation, the evidence indicates that the rules of the interdiction program and the general treatm ent of individuals stopped as a result of the interdiction program are the sam e for each stop, includ ing the stops of the proposed class represen tatives Morrow, Flores, and Parsons. A ccordingly, the claims of Morrow, Flores, and Parsons are ty pical of the claims of the class. Ad ditionally, as discussed above, the Court has d rawn an adverse inference on the issue of typicality from the refusal of Defendants Russell and Green to answer questions at their d epositions on the is sue of typicality. The Court, therefore, finds that th e typicality requirement is met.
d) Adequacy of Representation Rule 23(a)(4) requires that th e representative p arties “fairly and adequ ately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). To this end, the adequacy of class representation required under Rule 23(a)(4) m andates an inquiry not only into (1) th e “zeal and competence of the representatives’ counsel,” but also into (2) “the willingness and ability of the representative[s] to take an active ro le in and control the litigation and to protect the interests of absentees.” Berger v. Compaq Computer Corp., 257 F.3d 475, 481 (5th Cir. 2001). Defendants do not challenge the competence of the proposed class counsel—Stephanie Stephens, David Guillory, and Tim othy Garrigan. However, Defendants do argue that appointing three lawyers as co-lead counsel could result in duplication of effort and, thus, would not be in the best interest of the class. The Court is not persuaded by Defendants’ argum ent. The Court has carefully reviewed the evidence of proposed class counsel’s training, skill, and experience and finds that each of them is competent to serve as class counsel.
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The Court n ow turns to the second consideration regarding adequacy: the willin gness

and ability of the representatives to take an active role in and control the litigation and to protect

the interests of absen tees. Plaintiffs argue that the interests of the p roposed class

representatives—Morrow, Flores, and Parsons—are identical to those of the propo sed class and

that there are no conflicts between the class rep resentatives’ interests an d the interests of the

class members. Plaintiffs point out that differences between the proposed representatives and the

class do not defeat adequacy unless they rise to the level of conflicts of interest. See Mullen, 186

F.3d at 625-26 (“Differences between nam ed plaintiffs and class m embers render the nam ed

plaintiffs inadequate representatives only if those differences create conflicts be tween the named

plaintiffs’ interests and the class members’ interests”). Additionally, Plaintiffs argue that each of

the proposed class representatives has presented a declaration reflecting his support of class

certification, his willingness to serve as class re presentatives, pledging to place the interests of

the class above his own, and pledging to cooperate in the prosecution of this case.

See

Declarations of Morrow, Flores, and Parsons, Exhibit 19 to Opening Brief.

Defendants, however, argue that the proposed class representatives will not adequately

represent the interests of the par ties because th ey (1) seek to represent a class of persons th at

apparently do not desire to be a part of this litig ation, and (2) seek compensatory and punitive

damages on behalf of the class. Defendants ar gue that seven of the na med class m embers no

longer appear to be cooperating in the litigation of the suit. According to Def endants, this

suggests that many of the potential class members will also not wish to pursue any claims against

Defendants or participate as m embers of the class. Defendants con tend that this creates a

conflict of interest with respect to the potential class members because only Morrow, Flores, and

Parsons wish to pursue a claim against Defendants. The Court disagrees. At best, Defendants

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have provided evidence that som e of the original class representatives no longer wish to act as class representatives. Defendants have, however, provided no evidence that these individuals no longer wish to have their claim s against Defendants litigated by the rem aining class representatives as a class action. Even if Defendants’ allegations that several of the original class representatives no longer wish to be class representatives are true, the fact that others are unwilling or unable to act as class represen tatives has no bearing on the ability or willingness of Morrow, Flores, and Parsons to act as class representatives.
Defendants also argue that the proposed class representatives are inadequate because they are walking a fine line by seek ing compensatory and punitive dam ages. Defendants argue that, on the one hand, seeking m onetary relief jeopardizes class certification as a Rule 23(b)(2) class. However, if only injunctive relief is sought, the proposed representatives m ay subject the class members’ potential claims to res judicata, and thus create a conflict between their interests an d those of the putative class members. The Court is also unpersuaded by this argument. Plaintiffs’ request for compensatory and punitive da mages reflects their desire to o btain as much relief on behalf of th e class as they are leg ally entitled to and does not affect their adequ acy as class representatives or create a conflict of interest. Later in this Order, the Court will m ore fully address the issue of wh ether class members’ claims for individual damages would be barred by collateral estoppel or res judicata should the C ourt chose to certify only an injunctive class. However, this issue is more appropriately handled in determining whether to certify the class as a (b)(2) class for injunctive relief or a (b)(3) class for da mages and does not affect the adequacy of the class representatives.
In conclusion, the differences that Defendants focus on are not the kind of differences that create a conflict of interests between the proposed class representatives and the m embers of
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the class because any differences in the specific factual circumstances giving rise to the claims of the proposed class representatives and the members of the class do not affect the alignment of the class representatives’ interests with the interes t of the class. See Mullen, 186 F.3d at 625-26 (upholding district court’s finding of adequacy of representation when the differences in the claims of the class representatives and the poten tial class members did not affect the alignm ent of their interests). Accordingly, the Court finds that the proposed class representatives will adequately represent the interests of the entire class.
1. Rule 23(b)(2) Because Plaintiffs are moving for class certif ication under Rule 23(b )(2), they must also demonstrate “that the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” F ED. R. CIV. P. 23(b)(2). Rule 23(b)(2) permits class certification of claims seeking injunctive or declaratory relief, and these types of proposed classes need not withstand the Court’s independent probe into the superiority of a class action over other available methods of adjudication—i.e., questions of manageability and judicial economy—or the degree to which comm on issues predom inate over those affecting only individual class members. Allison v. Citgo Petroleum Corp. , 151 F.3d 402, 414 (5th Cir. 1998); Forbush, 994, F.2d at 1105. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory rem edy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class m embers or as to none of them.” WalMart, 131 S.Ct. at 2557 (quoting Nagareda, 84 N.Y.U.L.Rev., at 132). Accordingly, certification of a Rule 23(b)(2) class is appropriate “only w hen a single injunction or declaratory judgm ent would provide relief as to each m ember of the class.” Wal-Mart, 131 S.Ct. at 2557. Looking at
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the history of Rule 23(b)(2), the Wal-Mart Court acknowledged that “’[c]ivil rights cases against parties charged with unlawful, class-based discrim ination are prime examples’ of what (b )(2) is meant to capture.” Id. at 2557 (quoting Amchem Products, Inc. v. Windsor , 521 U.S. 815, 614 (1997)). Such is the case here.
Here, Plaintiffs allege that Defendants dev eloped an illegal practice th at targeted racial minorities for pretextu al traffic stops in viol ation of th e Equal Protection Clause of the Fourteenth Amendment—i.e. the interdiction program. When a plaintiff alleges that a defendant is engaged in a “pattern or p ractice” of behavior, in order to m eet the requirements of Rule 23(b)(2), the pattern or practice m ust “consist of a uniform policy allegedly applied against the plaintiffs, not simply diverse actions in various circum stances.” Bolin, 231 F.3d at 975 (citing Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1775 at 448 & n.3 (2 nd ed. 1986)). Certification is improper if the m erits of the claim turn on the defendant’s individual dealings with each plain tiff. Id. Pl aintiffs have alleged and provided evidence that the interdiction program was uniformly applied and that all citizens affected by the interdiction program were subject to the sam e rules and procedures. See Washington Depo at 193:14-24; Walker Depo at 45:20-24 and 85:8-12. Plaintif fs have also provided evidence that the proportion of racial and ethnic m inorities stopped increased dram atically when the interdiction program began and that th is increase is statistically significant. See Tier 1 Data. Accordingly, the issue to be litigated is whether the interdiction program illegally targeted racial and ethnic minorities for traffic stops, not the individual factual circumstances surrounding each stop. Where plaintiffs allege that the police have engaged in a presum ptively invalid procedure, class certification “is appropriate since the liability which the plaintiffs seek to establish is based on the operation itself rather than on the circ umstances surrounding each ind ividual stop o r
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arrest.” Wilson v. Tinicum Township; 1993 WL 280205, at *8 (E.D. Pa. 1993). In Wilson, the court certified an in junctive class seeking to enjo in the township from continuing to practice its alleged policy of violating the civil rights of individuals by targeting African Americans travelers on I-95 for stops based on pretextual traffic violations and with the in tent of searching their vehicles for drugs without probable cause or reasonable suspicion. Id. at *1-7.
Additionally, Rule 23(b)(2) certification is “especially appropriate where a plaintiff seeks injunctive relief against discrim inatory practices by a defendant.” Daniels, 198 F .R.D. at 414 (citing Weiss v. York Hosp., 745 F.2d 786, 811 (3rd Cir. 1984)); see also Marisol A. By Forbes v. Giuliani, 929 F. Supp. 662, 692 (S .D.N.Y. 1996) (“Rule 23(b)(2) is designed to assist and is most commonly relied upon by litigants seek ing institutional reform in the form of injunctive relief.”), aff’d, 126 F.3d 372 (2nd Cir. 1997). In fact, the 1966 Notes to Rule 23(b)(2) lists civil rights actions “where a party is charged with di scriminating unlawfully against a class, usually one whose m embers are incapable of specific enum eration” as exam ples of appropriate Rule 23(b)(2) actions. F ED. R. CIV. P. 23(b)(2) 1966 Advisory Comm ittee’s Note. The Supreme Court has also recogn ized that civil rights ca ses, like this one, “alleging racial or ethnic discrimination are often by thei r nature class suits, involving classwide wrongs” and comm on questions of law or fact are typically present. East Texas Motor F reight Systems, Inc. v. Rodriguez, 431 U.S. 395, 405 (1977). Howeve r, careful attention to the requirem ents of Federal Rule of Civil Procedure 23 remain, nonetheless, indispensable. Id.
The proposed class, as defined by the Court, alleges classwide racial and ethnic discrimination—i.e. that Defendants’ interdiction program unlawfully targeted members of racial and ethnic m inorities for stops in violation of the Equal Protection Clause of the Fourteen th Amendment—and is, thus, precisely the type of class for which Rule 23(b)(2) was created.
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Accordingly, the Court finds that certification of a (b)(2) class for injunctive and declaratory
relief is appropriate.
a) Class Claims for Declaratory and Injunctive Relief
Plaintiffs request declaratory relief recognizing that
(1) the Defendants’ practice of targeting apparent members of racial or ethnic minority groups for traffic stops, detentions, arrests, searches, and seizures violates the equal protection clause of the Fourteenth Amendment; and
(2) the Defendants’ practice of conducti ng traffic stops, detentions, arrests, searches, and seizures without legal justification violates the prohibition against unreasonable searches and seizures in the Fourth Am endment, and that resulting forfeitures violate the due process clause of the Fourteenth Amendment.
Plaintiffs also request the following injunctive relief:
(1) a permanent p rohibition against the Defendants’ practices foun d to b e unconstitutional; and
(2) a requirem ent that these Defendants ut ilize best practices in conducting any traffic stops, roadside detentions, search es, and seizures that, at a minim um, includes use of video equipm ent with re-event recording, or com parable features, so that the legal justification for any traffic stop, detentio n, warrantless arrest, search and/or seizure is accurately recorded, by video and audio, and meaningfu l monitoring of all such recordings for constitutional compliance.
The proposed class, as modified by the Court, is only concerned with whether the Defendants
targeted racial and eth nic minorities for pretextual traffic stops in violation of the Equal
Protection Clause of the Fourteenth Am endment, and not with w hether any subsequent
detentions, arrests, searches, or seizu res violated the Fourth Am endment as applied to the states
through the Due Process Clause of the Fourteenth Am endment. Accordingly, the specific
declaratory and injunctive relief p roposed by Plaintiffs is in appropriate to th e extent it seeks a
declaration or injunction concerning detentions, arrests, searches, or seizures by Defendants.
This is not to say that any declaratory or injunctive relief is inappropriate on a classwide basis.
To the contrary, it only suggests that any declaratory and/or injunctive relief must address
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Defendants’ alleged practice of targeting m embers of racial and ethnic m inorities for selective enforcement of traffic laws under the interdiction program. As one example, if Plaintiffs prevail on the merits of their case, they would be entitled to a declarat ion that Defendants’ practice of targeting apparent m embers of racial or ethnic m inority groups for pretextual traffic stops violates the equal protection clause of the Fourteenth Amendment. Similarly, they would also be entitled to an injunction putting an end to the interdiction program in Tenaha and prohibiting the Defendants from targeting racial and ethnic m inorities for the selective enforcem ent of traffic laws.
Defendants, however, argue that Plaintiffs proposed injunctive relief is not specific enough. Every order granting an injunction m ust be specific in its term s and must describe in reasonable detail th e act or acts that are enjo ined. F ED. R. CIV. P. 65(d); see also Alabama Nursing Home Assoc. v. Harris , 617 F.2d 385, 387 (5th Cir. 1980). “This requirem ent of specificity and reason able detail, based in part on notions of basic fairness, ensures that individuals against whom an injunction is directed receive explicit no tice of the precise conduct that is ou tlawed.” Alabama Nursing Home Assoc. , 617 F.2d. at 387-88. Citing Alabama Nursing Home Assoc. , the Fifth Circuit has stated that the injunctive relief sought under Rule 23(b)(2) must be specific. Maldanado v. Ochsner Clinic F oundation, 493 F.3d 521, 524 (5th Cir. 2007). The real issue, how ever, is not whether Plaintiffs have precisely defined the requested injunction at the class certification state, but wheth er the class is “sufficiently cohesive that classwide injunctiv e relief can satisfy the limitations of Federal Rule of Civil Procedu re 65(d)—namely, the requirement that it ‘state its term s specifically; and describe in reasonable detail . . . the act or acts restrained or required.’” Shook v. Board of County Commissioners of County of El Paso, 543 F.3d 597, 604 (10th Cir. 2008) (quoting FED. R. CIV. P. 65(d)). Plaintiffs
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are not required to set forth the requested injunction in the pleadings with the specificity required by Rule 65. Monreal v. Potter, 367 F.3d 1224, 1236 n.11 (10th Cir. 2004). Plaintiffs have set forth facts suggesting that Defendants’ behavior was generally applicable to the class as a whole, making injunctive relief appropriate. The precise term s of the injunction need not be decided at this stage, only that the allegations are such that injunctive and declaratory relief are appropriate and that th e class is s ufficiently cohesive th at an injunction can be crafted that m eets the specificity requirements of Rule 65(d).
In Maldanado, the F ifth Circuit rejected certification of a Rule 23 (b)(2) class for injunctive relief because the inabil ity of the plaintiff to specif y what injunctive relief was sought highlighted the fact that individualize issues overwhelm ed class cohesiveness. 493 F.3d at 524. The plaintiffs in Maldanado were uninsured p atients who received medical care from a nonprofit hospital and where then bille d for their m edical services at rates higher than were those patients with health insurance. Id. at 523. The plaintiffs sought an injunction requiring, in part, that the hos pital provide them with “mutually affordable health care. ” Id. at 524. In denying class certification, the F ifth Circuit pointed out that the pl aintiffs had failed to identify any way to determine what a reasonable or “mutually affordable” rate was for the wide variety of m edical services offered by the health provider. Id. “The amount patients were charged and the a mount that is ‘reas onable’ for the serv ices they receiv ed is necessarily an individual inquiry that will depend on the specific circum stances of each cl ass member, the tim e fame in which care was provided, and both [the defendant’s] and other hospitals’ costs at that tim e.” Id. Unlike th e proposed injunction rejected by the Fifth Circuit in Maldanado, an injunction in th is case would not require an individualized asses sment of the injunctive relief afforded to each class m ember. Instead, the injunction would focus on ending Tenaha’s allegedly d iscriminatory interdiction
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program and putting safeguards in place to m onitor future stops to m ake racial profiling les s likely.
Additionally, Defendants argue that prospective injunctive relief is not ap propriate in this case because Tenaha’s interdiction program no longer exists. Defendants point to the deposition testimony of Shelby County’s designee, Shelby County Judge Rick Campbell, that Defendant Washington is no longer the Constable of Precinct 4 and that Shelby C ounty no longer operates an interdiction program. See Campbell Depo I at 22:14-17; Ca mpbell Depo II at 23:2-17. Mr. Campbell testified that the Shelby County sheriff’s office and Precinct 4 have not had an interdiction program since January of 2009. Ca mpbell Depo II at 21:12-17. A lthough his testimony is somewhat contradictory, Mr. Cam pbell also indicated that the Shelby County Sherriff’s Office does not even do traffic enfor cement and does not issu e traffic citations. Id. at 21:12-23:11. Accordingly, Defendants argue that the members of the class are not subject to any future harm that can be rem edied by an injunction. Plaintiffs, however, cite to the deposition testimony of the City of Tenaha’s designee, Fred W alker, which was adopted by Shelby County, that the interdiction pro gram was still in place and that no changes had been m ade to it as of April 21, 2010. Walker Depo at 45:17-24.
Although not labeled as such, Defendants’ argum ent is a mootness argument. According to Defendants, if Tenaha no longer has the allegedly unconstitutional inte rdiction program, then an action seeking only an injunction to stop the program and a declaration that the program is unconstitutional is m oot. However, the fact that Tenaha voluntarily stopped its allegedly unconstitutional interdiction program does not n ecessarily render classwide injun ctive relief moot. A long line of Suprem e Court cases stands for the p roposition that th e “voluntary cessation of allegedly illegal c onduct does n ot deprive the tribunal of power to hear and
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determine the case, i.e., does not m ake the case moot.” United States v. W. T. Grant Co. , 345
U.S. 629, 632 (1953); United States v. Trans-Missouri Freight Assn. , 166 U.S. 290, 308-310
(1897); Walling v. Helmerich & Payne, Inc. , 323 U.S. 37, 43 (1944); Gray v. Sanders, 372 U.S.
368, 376 (1963); United States v. Phosphate Export Assn ., 393 U.S. 199, 202-203 (1968). In
such circumstances, a dispute over the legality of the practices at issu e remains to be settled by
the court. W.T. Grant Co., 345 U.S. at 632. T he fact that “the defendant is free to return to his
old ways” taken together with the “public interest in having the legality of the practices settled,
militates against a mootness conclusion.” Id. “It is the du ty of the courts to beware of efforts to
defeat injunctive relief by protestations of re pentance and reform, especially when abandonment
seems timed to anticipate suit, and th ere is probability of resum ption.” United States v. Oregon
State Medical Society, 343 U.S. 326, 333 (1952). The case m ay, in fact, be found moot if the
defendant can dem onstrate that “there is no reasonable expectation that th e wrong will be
repeated.” T. W. Grant Co ., 345 U.S. at 633 (quotation and citation om itted). The burden is a
“heavy one,” and is not satisfied where, as here, the defendants simply claim that the challenged
policy no longer exists and they have no intention of reviving it. Id.; see also Hall v. Bd. of Sch.
Comm'rs of Conecuh County , 656 F.2d 999, 1001 (5th Cir. 1981) (“To defeat jurisdiction . . .,
defendants must offer more than their m ere profession that the conduct has ceased and will not be revived.”).6 Sim ilarly, Defendants’ claim that Defendants W ashington and Green are no
longer employed by the City of Te naha or Shelby County is not enough to satisfy Defendants’
 6 The Eleventh Circuit has held that “[w]hen the defendant is not a private citizen but a government actor, there is a rebuttable presumption that the objectionable behavior will not recur.” Troiana v. Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1283 (11th Cir. 2004). Howev er, th e Fifth Circuit has not adopted this position. In fact, in Hall v. Board of School Commissioners of Conecuh County, the Fift h Circuit applied t he standard articulated in W.T. Grant Co. to determine whether the voluntary cessation of a school policy allowing students to conduct morning devotionals over the school’s public address system mooted a constitutional challenge to the policy. 656 F.2d 999, 1000-01 (5th Cir. 1981). In reaching its decision, the Fifth Circuit never indicated that the school board, as a governmental body made up of public officials, was entitled to a rebuttable presumption that the objectionable policy would not recur based on the superintendent’s statement that the challenged policy had been terminated. Id.
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heavy burden of proving that there is no reasonable expectation that the City of Tenaha or Shelby

County will reinstate the allegedly discrim inatory interdiction program . In Hall v. Board of

School Commissioners of Conecuh County , the Fifth Circuit found that a suit challenging the

constitutionality of a high school’s policy of allowing students to give morning devotionals over

the school’s public address system was not mooted by the school’s voluntary decision to

discontinue the morning devotionals. 656 F.2d 999, 1000-0 1 (5th Cir. 1981). In reaching this

decision, the court considered the fact that the school board abandoned the policy only after the

filing of the lawsuit, and found that “the plaintiffs were entitled to injunctive relief that would be

binding upon the [school system ], regardless of changes in personnel .” Id. at 1001 (em phasis

added).

Overruling Defendants’ m ootness argument, however, does not answer the question of

whether classwide injunctive relief is appropriate. See W.T. Grant Co., 345 U.S. at 633; United

States v. Concentrated Phosphate Export Ass’n , 393 U.S. 199, 203-04 (1968) (concluding that

the case was not moot but noting that the district court was not obligated to grant equitable relief

on remand: “Of course it is still open to appe llees to show , on rem and, that the likelihood of

further violations is sufficiently remote to make injunctive relief unnecessary. This is a matter for

the trial judge.”) (citation omitted); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182

n.10 (11th Cir. 2007) (holding that the case was not m oot under the doctrine of voluntary

cessation, but remanding for trial court to determ ine whether injunctive relief was appropriate).

The analysis of whether a case is moot overlaps with the analysis of

whether a perm anent

injunction is appropriate on the m erits because both are concerned with the lik elihood of future

unlawful conduct. Sheely, 505 F.3d at 1182 n. 10. However, the two inquiries are not the sam e.

Whether a permanent injunction is appropriate tu rns on whether the plaintiff can establish by a

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preponderance of the evidence that injunctive relief is necessary. Id. (citing W.T. Grant Co., 345 U.S. at 633).
Along with its power to hear the case, the court’s power to grant injunctive relief survives discontinuance of the illegal conduct. The purpose of an injunction is to prevent future violations . . . The necessary determ ination is that th ere exists some cognizable danger of recurrent violation, som ething more than the m ere possibility which serves to keep the case alive. . . . To be considered are the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of the past violations. Id. The evidence is con tradictory as to whether the City of Tenaha has, in fact, terminated the interdiction program. Walker, the City of Tenaha’s designee, testified that as of the date of his deposition, April 21, 2010, there had been no changes made to the interdiction program and it was still ongoing. W alker Depo at 45:17-24. However, Shelby County offered testim ony from its designee, County Judge Rick Cam pbell, that the sheriff’s office ha s not done interdiction since January 2009. Campbell Depo II at 21:12-20. Additionally, the parties have not pointed to, and the Court has not found, any evidence in the record that the City of Tenaha, Shelby County, or any of the Defendants, have stated that they have no plans to reinstate the interdiction program at som e point in the future. All of this, coupled with the egregious allegations that public officials conspired to violate routinely the civil rights of the traveling public, demonstrates to the Court that there exists som e cognizable danger of recurrent violation such that injunctive relief is appropriate. Defendants also argue that even if the interd iction program is still in place, Plain tiffs are not entitled to an injunction be cause there is no evidence th at most of the class m embers will ever travel through Tenaha in the future and, thus, be subject to the interdiction program . “Rule 23(b)(2) certification is . . . inappropriate when the m ajority of the class does not face future harm.” Maldonado, 493 F.3d at 525 (citing Bolin v. Sears, Roebuck & Co ., 231 F.3d 970, 978
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Case 2:08-cv-00288-TJW Document 233 Filed 08/29/11 Page 50 of 58 PageID #: 1858
(5th Cir. 2000)); see also In re Monumental Life , 365 F.3d 408, 416 (5th Cir. 2004) (“Of course, certification under rule 23(b)(2) is appropriate only if m embers of the proposed class woul d benefit from the injunctive re lief they request. ”). In Wal-Mart, the Suprem e Court noted that “the validity of a (b)(2) class depends on whether ‘final injunctive relief or corresponding declaratory relief is appropriate resp ecting the class as a whole.’” Wal-Mart, 131 S.Ct. at 2560 (quoting FED. R. CIV. P. 23(b)(2))) (emphasis original to Wal-Mart). Additionally, declaratory relief is improper if it o nly serves to “facilitate the award o f damages.” Id. In Bolin, the Fifth Circuit held that the district cou rt abused its discretion b y certifying a Rule 23 (b)(2) class composed of bankruptcy debtors w ho alleged that the defendant had employed various unlawful practices to coerce pay ment of otherw ise-discharged pre-bankruptcy debt. Bolin, 231 F.3d at 978-79. The court h eld that most of the class members did not face any future harm from the store’s collection efforts, so they would have nothing to gain from an injunction. Id. Because only a negligible proportion of proposed class m embers were properly seeking injunctive relief, the Fifth Circuit held that rule 23(b)(2) certification was inappropriate. Id. at 978. In addition, the court found that the declaratory relief sought only served to “facilitate the damages award,” and, thus, that monetary damages predominated over the injunctive and declaratory relief sought. Id.
In Monumental Life, plaintiffs challenged defendants’ practice of charging higher life insurance premiums to African-A mericans. 365 F.3d at 411. Many class m embers no longer had insurance policies with the defendants, and the exact n umber of class m embers who would benefit from an injunction was unknown. Id. at 416. Defense and plai ntiff experts’ estimates ranged from eighteen to eighty percent. Given these estim ates, the Fifth Circuit found that “the proportion is sufficient, absent contrary evidence from defendants, that the class as a whole is
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Case 2:08-cv-00288-TJW Document 233 Filed 08/29/11 Page 51 of 58 PageID #: 1859

deemed properly to be seeking injunctive relief.” Id. In other words, absent additional evidence,

the plaintiffs had sufficiently dem onstrated that “most” of the class would likely benefit fr om

injunctive relief. Id. However, in Casa Orlando Apartments, Ltd. v. Federal Nat. Mortg. Ass’n ,

the Fifth Circuit found that Rule 23(b)(2) certification was not appropriate when only 40 percent

of the proposed class m embers would benefit from the injunction because they were subject to

ongoing harm. 624 F.3d 185, 200 (5th Cir. 2010).

Plaintiffs have provided declarations from class representatives Morrow, Parsons, and

Flores stating that they currently avoid traveling through T enaha and take longer, alternative

routes through East Texas. See 10/27/10 Declaration of James Morrow (“Morrow Decl.”) ,

Exhibit 2 to Second Supplem ental Motion for Class Certification (“Second Supplem ental

Motion”) (Dkt. No. 213); October 2, 2010 De claration of W illiam Parsons (“Parsons Decl.”),

Exhibit 3 to Second Supplemental Motion; October 2, 2010 Declaration of Javier Flores (“Flores

Decl.”), Exhibit 4 to Second Supplem ental Motion. Additionally, each of the clas

s

representatives stated that they expected to need to travel th rough or near Tenaha in the future.

See Morrow Dec.; Parsons Dec.; Flores Dec. Plaintiffs argue that this is enough to demonstrate a

risk of future harm to the class necessitating injunctive relief. Although none of the parties have

provided evidence to suggest what percentage of class m embers intend to travel in or aroun d

Tenaha in the future, the Court is persuaded, given the nature of the allegations, that other class

members would react to the alleged treatment in a manner similar to the way in which Morrow,

Parsons, Flores reacted. In other w ords, the Court is convinced that other class mem bers may

avoid driving through Tenaha because of their fear of being illegally targeted for stops under the

interdiction program. Should the evidence developed in the case indicate that Court is incorrect

and that certain m embers of the proposed class have no intention or desire to travel through

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Tenaha in the future, the Court may adjust the class definition to include only those who will be subject to being unconstitutionally targeted for traffic stops in the future. Additionally, becaus e the Court is certifying only a class for injunctive and declaratory relief and not a class for damages, the reques ted declaratory relief—that the interdiction program illegally targets racial minorities for pretextual traffic stops—would serve as a basis for the requested injunctive relief, not merely as a means to facilitate the award of damages.
Accordingly, the Court finds that classwide declarato ry and inju nctive relief is appropriate for the class as defined by the Court.
1. Class Claims for Monetary Relief Plaintiffs seek monetary relief in ad dition to declaratory and injunctive relieve. In WalMart, the S upreme Court held that claims for monetary relief m ay not be certified under Rule 23(b)(2), “at leas t where (as here) the m onetary relief is not inciden tal to the in junctive or declaratory relief.” 131 S.Ct. at 2557. The Wal–Mart Court compared Rule 23(b)(2) to (b)(3 ), concluding that the combination of individualized m onetary relief and classwide injunctive or declaratory relief in a (b )(2) class is “inconsistent with the structure of Rule 23(b ).” Wal–Mart, 131 S.Ct. at 2558. The Court reasoned that a class certified under (b)(2) has “the most traditional justification[ ] for class treatment” because “the relief sought must perforce affect the entire class at once.” Id. In noting the distinctions betw een a (b)(2) class and a (b)(3) class, the Court pointed out that (b)(2) class members are not provided with an opportunity to opt-out of the class and may not even be provided notice of the action. Id. A class certified under (b)(3), by contrast, “allows class certification in a much wider set of circumstances [than a (b)(3) class] but with greater procedural protections,” including notice and opt-out provisions for those potential class members who wish to hav e their cl aims heard on an individual basis. Id.; see also
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Amchem, 521 U.S. at 615 (“Framed for situations in which class-action treatment is not as clearly called for as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit m ay nevertheless be convenient and desirable”) (internal quotations and citation omitted). Thus, Wal–Mart held “that individualized m onetary claims belong in Rule 23(b)(3).” Wal-Mart. 131 S.Ct. at 2558.
In reaching this decision, the Suprem e Court overruled, at least in part, F ifth Circuit precedent that claims for monetary relief are permissible in a (b)(2) class so long as in junctive or declaratory relief is the predominant relief sought. In Allison v. Citgo Petroleum Corp., the Fifth Circuit reiterated that “[it], like nearly every other circuit, [has] adopted the position taken by the advisory committee that monetary relief may be obtained in a (b)(2) class action so long as the predominant relief sought is injunctive or declaratory.” 151 F.3d at 411. Allison also held that “monetary relief predo minates in (b)(2 ) class actions un less it is incidental to requested injunctive or declaratory relief.” Id. at 415. The Fifth C ircuit defined “incidental” m onetary damages as those “damages that flow directly from liability to the class as a whole o n the claims forming the basis of the injunctive or declaratory relief.” Id. Such “incidental” damages should at least be capable of com putation by m eans of objective standards and not dependent in any significant way on intangible, subj ective differences of each class m ember’s circumstances. Id. Finally, the Fifth Circuit reasoned that liab ility for in cidental damages should not require additional hearings to resolve the d isparate merits of each in dividual’s case. Id. The Wal-Mart Court expressly rejected the general statement that monetary damages are recoverable in a (b)(2) class so long as they did not predominate over the injunctive or declaratory relief:
The mere “predominance” of a proper (b )(2) injunctive claim does nothing to justify elimination of Rule 23(b )(3)’s procedural protections . . . W e fail to see why the Rule should b e read to n ullify these protections whenever a plain tiff
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Case 2:08-cv-00288-TJW Document 233 Filed 08/29/11 Page 54 of 58 PageID #: 1862

class, at its option, combines its monetary claim “predominant” request’—for an injunction.

s with a request—even a

131 S.Ct. at 2559. However, in reaching this ruling, the Suprem e Court left open the m ore

specific question of whether damages that are merely “incidental” to the injunctive or declaratory

relief can be awarded to a 23(b)(2) class as outlined in the Fifth Circuit’s decision in Allison. Id.

at 2560 (“we need not decide in this case whether there are any form s of ‘incidental’ m onetary

relief that are consistent with the interpreta tion of Rule 23(b)(2) we have announced and that

comply with the Due Process Clause”).

The Court need not resolve th is open question to reach its decision with respect to

Plaintiffs’ claims for moneatary relief because these claim s cannot satisfy the Allison standard.

Thus, even if “incidental” m onetary relief, as defined in Allision, is recoverable in a Rule

23(b)(2) class under Wal-Mart, Plaintiffs’ request for equitable restitu tion as well as

compensatory and punitive dam ages is not. Plaintiffs’ claim s for compensatory and punitive

damages would requ ire an ind ividualized, factual determ ination for each claim and would

predominate over the injunctive relief under Allison. Thus, Plaintiffs claims for compensatory

and punitive damages are not appropriate for Rule 23(b)(2) certification. Addition ally, although

the Fifth Circuit has held that equitable m onetary relief may be compatible with a Rule 23(b)(2)

class, Plaintiffs’ request for equitab le restitution is not tied to th e limited (b)(2) class that the

Court has defined. See Monumental, 365 F.3d at 418 (holding that equitab le restitution was

appropriate for for (b)(2) class under Allison). For ex ample, Plaintiffs request that the Court

order that Defendants return any and all seized property and m

oney and reim burse class

members for their read ily determinable and fore seeable expenses directly flowing from the

Defendants’ unconstitutional prac tices, including lawyers’ fees, bail expenses, towing and

storage fees, and appropriate interest. In gene ral, however, these equ itable damages relate to

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Case 2:08-cv-00288-TJW Document 233 Filed 08/29/11 Page 55 of 58 PageID #: 1863
Plaintiffs’ claims that the detentions, arrests, searches, and seizures under the interdiction program violated the Fourth Am endment’s prohibition of unreasonable searches and seizures as applied to the states through the due process clau se of the Fourteenth Amendment. Because the Court holds that class certification is not appropriate on these grounds, the equitable dam ages related to these claims are also inappropriate. III. Res Judicata and Claims for Individual Damages
The briefing of the parties raised the issue of whether certifying a class for injunctive and not monetary relief would effectively destroy any claim s for monetary relief held by individual class members. In Zachary v. Texaco Exploration and Production, Inc , the Western District of Texas found that the adequacy requirem ent had not been m et when the class representatives dropped their claim s for com pensatory and punitiv e damages. 185 F.R.D. 230, 243-44 (W .D. Tex. 1999). Because class m embers in a (b )(2) class do no t have th e ability to op t out of the class, the Court found that dropping the punitive damages claims created the possibility that class members would be barred from bringing individual actions for dam ages based on intentional discrimination. Id. Thus, the Court found that the potential class representatives were asking the class members to risk waiving their right to monetary damages solely so the action could proceed as a class action. Id. at 244. “The Court is un willing to risk this resu lt. The decision by the named Plaintiffs to drop the m onetary damages claim cannot be im posed upon the absent class members without raising a very serious conflict of interest.” Id. The concerns of the court in Zachary as to the adequacy of the class rep resentatives are not relev ant to this case. However, Zachary does raise the issue of whether the claim s of individual class m embers for m onetary damages may be extinguished if the Court certifies only an injunctive class.
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Because the Court has not certified a class for claim s regarding detentions, arrests, searches, and seizures under the interdiction program , any individual claim s for monetary relief on these grounds will not be foreclosed by the certification of the modified class. However, the tolling of th e statute of lim itations on those claim s will end as of the date of this order. See Zachary, 185 F.R.D. at 242 (holding that the period of tim e between comm encement of the proposed class action and the denial is tolled for al l putative class m embers on any subsequent individual lawsuits they m ay wish to bring) (citing American Pipe & C onstr. Co. v. Utah , 414 U.S. 538, 552-53 (1975)).7
The remaining question, then, is whether res judicata would bar any individual claims for monetary damages based on the individual circum stances of a racially motivated s top of a class member. The Court is persuaded that it would not. The issue to be tried in th is case is whether Defendants are engaged in a pattern or practice of targeting racial and ethnic m inorities for selective enforcement of traffic laws in violation of the equal protection clause of the F ourteenth Amendment. The ruling on this issue should not foreclose an individual lawsuit for da mages based on the individual circumstances of a particular stop. Where plaintiffs allege that the police have engaged in a presumptively invalid procedure, class certification “is appropriate since the liability which the p laintiffs seek to estab lish is based on the operation itself rath er than on the circumstances surrounding each ind ividual stop or arrest.” Wilson v. Tinicum Township ; 1993 WL 280205, at *8 (E.D. Pa. 1993). In Wilson, the plaintiffs alleged that minorities were targeted for pretextual highway stops so that searches could be requested. Id. at * 1. The court certified an injunctive class seeking to enjoin the township from continuing to p ractice its alleged policy of violating the civil rights of individuals by targeting African Am ericans travelers on I-95 for
 7 The Fift h Circuit has li mited this decision with a “n o piggyback rule” which restricts the t olling to subsequent individual lawsuits and not further class actions. See Salazar-Calderon v. Presidio Valley Farmers Assoc., 765 F.2d 1334, 1351 (5th Cir. 1985).
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Case 2:08-cv-00288-TJW Document 233 Filed 08/29/11 Page 57 of 58 PageID #: 1865

stops based on pretextual traffic violations and with the in tent of searching their vehicles for

drugs without probable cause or reasonable suspicion. Id. at *1-7. Sim ilarly, in an action by

African-American homeowners who alleged that the city dem olished repairable single-fam ily

homes in predom inately minority neighborhoods without proper notice or judicial warrant, the

Fifth Circuit held that the monetary costs that ran against the city for removing liens and clearing

the title fro m the consequences of the allegedly constitutionally deficient no-notice dem olition

were proper under Rule 23(b)(2) because they flowed directly from the liability to the class as a

whole on the claim s forming the basis of the injunctive relief. James v. City of Dallas, Texas ,

254 F.3d 551, 572 (5th Cir. 2001). The court went on to state that “there is no concern that ‘the

legitimate interests of potential class m embers who m ight wish to pursue their m onetary

[damages] claims individually’ would be interf ered with by this class certification. ” Id. at 572-

73 (quoting Allison, 151 F.3d at 415).

Accordingly, the Court is persuaded that any putative class m embers who wish to pursue

individual claims for monetary damages will not be adversely affected by the fact that the Court

has chosen to certify a class for injunctive and declaratory relief and not monetary damages.

IV. Conclusion

For the reasons discussed above, the Court GRANTS Plaintiffs’ Motion for C

lass

Certification and certifies the follow ing class fo r injunctive and declaratory relief pursuant to

Federal Rule of Civil Procedure 23(b)(2):

(1) People who are, or appear to be, m embers of racial or ethnic m inority groups and those in their company, and

(2) Were, or will be, traveling in, th rough, or near Tenaha at any tim e after November 1, 2006, and

(3) Were stopped, or w ill be subject to being stopped, by one or m ore Defendant for an alleged traffic violation.

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Case 2:08-cv-00288-TJW Document 233 Filed 08/29/11 Page 58 of 58 PageID #: 1866 IT IS SO ORDERED. SIGNED this 29th day of August, 2011. __________________________________________ T. JOHN WARD UNITED STATES DISTRICT JUDGE
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 Case 2:08-cv-00288-JRG Document 261 Filed 08/06/12 Page 1 of 17 PageID #: 2175

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, et al. and a

Certified Class of Other Similarly

Situated Persons,

:

Plaintiffs

:

v.

:

:

CITY OF TENAHA DEPUTY

CITY MARSHAL BARRY

WASHINGTON, in his individual

and official capacity, et al.,

Defendants

:

: :
: Civil Action No. 2:08-cv-288-JRG Judge Gilstrap
: : : :

JOINT MOTION FOR PRELIMINARY APPROVAL OF THE CLASS ACTION CONSENT DECREE, APPROVAL OF NOTICE,
AND FAIRNESS HEARING

This Joint Motion for Preliminary Approval of the Class Action Consent Decree, Approval of Notice, and Fairness Hearing is respectfully filed, through counsel, by Plaintiffs James Morrow, Javier Flores and William Parsons, the Court-designated class representatives, and the class certified by this Court’s Order dated August 29, 2011 (collectively, “Plaintiffs”), and Defendants the City of Tenaha Deputy City Marshal Barry Washington, in his individual and official capacities (who has since resigned from office), the City of Tenaha Mayor George Bowers, in his official capacity only (who is the former mayor), the Shelby County District Attorney Lynda K. Russell, in her individual and official capacities (who has since resigned from office), the Shelby County District Attorney Investigator Danny Green, in his individual and official capacities (who has since retired), and the Shelby County Precinct 4 Constable Randy Whatley, in his individual and official capacities (who has since resigned from office) (collectively, “Defendants”). For purposes of this Joint Motion and the proposed Consent
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Case 2:08-cv-00288-JRG Document 261 Filed 08/06/12 Page 2 of 17 PageID #: 2176
Decree, Shelby County is bound as a Defendant via the County Judge Rick L. Campbell, or his successor, in his official capacity; the City of Tenaha is bound as a Defendant via the Mayor Orinthia Johnson, or his successor, in his official capacity; and the Shelby County District Attorney’s Office is bound as a Defendant via (resigned) Shelby County District Attorney Lynda K. Russell, or her successor, in her official capacity, only to the extent permitted by the Texas Constitution and Texas law. The parties respectfully request that the Court:
(a) Grant preliminary approval of the proposed Consent Decree (attached hereto as Exhibit 1);
(b) Approve the Notice to the Certified Class about the proposed Consent Decree (attached hereto as Exhibit 2), and the method of notifying the class of the proposed Consent Decree;
(c) Schedule a hearing on this Joint Motion, if the Court deems appropriate1; (d) Set a schedule for the Fairness Hearing and other appropriate dates; and (e) After the Fairness Hearing, grant final approval to the proposed Consent Decree.
1 Please note that counsel for the parties do not believe that a hearing on this Joint Motion is necessary, but counsel would of course be willing to participate in any hearing set by the Court.
2

Case 2:08-cv-00288-JRG Document 261 Filed 08/06/12 Page 3 of 17 PageID #: 2177

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, et al. and a

Certified Class of Other Similarly

Situated Persons,

:

Plaintiffs

:

v.

:

:

CITY OF TENAHA DEPUTY

CITY MARSHAL BARRY

WASHINGTON, in his individual

and official capacity, et al.,

Defendants

:

: :
: Civil Action No. 2:08-cv-288-JRG Judge Gilstrap
: : : :

MEMORANDUM IN SUPPORT OF THE JOINT MOTION FOR PRELIMINARY APPROVAL OF THE CLASS ACTION CONSENT DECREE, APPROVAL OF NOTICE, AND FAIRNESS HEARING
Plaintiffs and Defendants2 jointly submit this Memorandum in Support of the Joint Motion for Preliminary Approval of the Class Action Consent Decree, Approval of Notice, and Fairness Hearing. For the reasons articulated in the motion and this supporting memorandum, the parties respectfully request that the Court promptly grant preliminary approval of the Consent Decree, approval of class notice procedures, and an order establishing dates for a Fairness Hearing.
STATEMENT OF FACTS A. Nature of the Case Plaintiffs filed this case in 2008 to challenge the Defendants’ alleged illegal “stop and seize” practice of targeting, stopping, detaining, searching, and often seizing property from

2 Unless otherwise noted, capitalized terms have the same meaning as defined in the Consent Decree.
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individuals who are, or appear to be, members of a racial or ethnic minority and their passengers. (Class Certification Opinion and Order, Aug. 29, 2011, Dkt. 233, p. 2.) The evidence demonstrates that this “interdiction program” began in 2006, and Plaintiffs allege that it is ongoing. (Id. at 3.) According to Plaintiffs, Defendants targeted members of the proposed class for traffic stops because of their race or ethnicity and then subjected them to detention, arrest, or search and seizure without legal justification and in violation of their constitutional rights. (Id.) Plaintiffs further allege that Defendants instituted the interdiction program, not for legitimate law enforcement purposes, but in order to enrich their offices and themselves by seizing and converting cash and other valuable personal property they could find during the course of the illegal stop and seize practice. (Id.)
The Defendants deny these allegations and deny that they violated the constitutional rights of the named Plaintiffs or the class as a whole.
Plaintiffs initially sought class treatment of Fourth Amendment search and seizure claims, Fourteenth Amendment Equal Protection claims, and claims for monetary relief. The Court only certified the plaintiff class for Fourteenth Amendment Equal Protection claims for injunctive and declaratory relief. (Id. at 57.) The Defendants sought a discretionary interlocutory appeal of the class certification pursuant to Federal Rule of Civil Procedure 23(f) which was denied, and then denied again when the Defendants asked the Fifth Circuit Court of Appeals to rehear the request.
B. Proposed Settlement Agreement After extensive negotiations—including but not limited to three full-day mediation sessions conducted by Kip Glasscock (a professional mediator) and multiple full-day all-counsel meetings—which spanned about five months from October 2010 to July 2012, the parties
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reached a settlement that will dispose of this action. The terms of the parties’ settlement are embodied in the Consent Decree. See Exhibit 1. The purposes animating the Consent Decree include efficiency, avoiding uncertainty, ending alleged racial profiling (including any alleged incentives and alleged practices that may result in alleged racial profiling), and concluding the litigation. Id. at § II. The Consent Decree provides Plaintiffs and the Certified Class with complete injunctive relief and confers significant benefits on the Plaintiffs and the Certified Class. The Consent Decree also benefits Defendants by requiring accurate records of traffic stops that will readily contradict any false accusations that an officer abused his or her authority or violated constitutional rights. The key terms of the Consent Decree include the following:
 Any evidence gathered in a way that does not comply with all the provisions of the Consent Decree shall be presumptively inadmissible as evidence in any court or other proceeding adverse to the person stopped. Id. at § III.B.3.
 Defendants shall adopt an impartial policing policy. Id. at § III.A.  All traffic stops conducted by Defendants shall be mechanically recorded by both video
and audio recordings, including: the use of the pre-event capabilities to capture the reason for the stop, and record the location, time, date, speed, the identity of the officer(s) and agency operating the vehicle, and any radar readings pertinent to the stop. The recordings shall also capture any canine sniffs, searches, seizures, detentions, and to the extent reasonable, arrests, resulting from a traffic stop. All oral communication and interaction with the person being stopped must be captured in the recordings. If Miranda rights are required in a specific situation by federal law, the recitation of his or her Miranda rights shall be mechanically recorded. Id. at §§ III.B.5, III.G.4.
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 Defendants shall maintain written documentation with details about the traffic stop, detention, canine sniff, search, seizure, and/or forfeiture. Id. at §§ III.B.6, III.C.2, III.D.7, III.E.4, III.F.3, III.G.3, III.H.1.
 Defendants shall make contemporaneous reports to dispatch for traffic stops, detentions, canine sniffs, searches, seizures, and arrests. Officers must report the basis for their actions before making contact with a motorist and request back-up before conducting any search. Id. at §§ III.B.8, III.C.1, III.D.4, III.E.1.
 Traffic stops for violations punishable by issuance of a traffic ticket are presumed to be 15 minutes or less. Id. at § III.B.10.
 Defendants stipulate that they do not utilize canines for any aspect of traffic stops. If a Defendant wants to use a canine, that defendant must first notify the Monitor and Plaintiffs’ counsel. Id. at §§ III.D.1, III.D.10
 A canine sniff is allowed only when supported by reasonable suspicion of criminal activity. Id. at § III.D.3.
 If a Defendant uses a canine, certification and training requirements apply for use of the canine, and performance reviews are required for the canine and canine handlers. Id. at §§ III.D.8, III.D.9.
 Written notice shall be provided to a person before a canine sniff, before a consent search, and before the seizure of any property. Id. at §§ III.D.5, III.E.2, III.F.4.
 Before conducting a consent search, an officer must provide oral and written advisement of rights, and obtain written and video and audio recorded consent for the search. Id. at §§ III.E.2, III.E.3.
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 The responsible defendant shall pay a person for the full costs of property damage resulting from a search, unless the search results in the discovery of contraband. If a defendant disputes whether the damage was caused by a search, the Monitor makes a determination about liability. Id. at § III.E.6.
 Officer must provide motorist with an inventory of all property seized. Id. at § III.F.6.  Protections apply for an individual whose assets are seized, including prohibitions on
officers requesting that an individual waive his or her interest in the property, allowing individuals a meaningful opportunity to retain counsel to contest seizure, and permitting waiver of interest in property only in the presence of judicial officer or following representation by counsel. Id. at §§ III.H.2, III.H.3, III.H.4, III.H.5.  Defendants agree to track all revenue and donations from asset forfeiture incident to traffic stops. Id. at § III.I.2.  Shelby County Auditor will confirm that each expenditure of forfeiture revenue is compliant with Texas law. If an expenditure is deemed non-compliant, the Auditor will notify the County Commissioner’s Court and the Monitor. Id. at § III.I.3.  The Tenaha City Council, before the expenditure of any forfeiture revenue, shall confirm compliance with Texas law. Id. at § III.I.4.  All asset forfeiture revenue incident to traffic stops shall be donated to non-profit organizations, used for the audio and video equipment required by the Consent Decree, or used for training to meet the requirements of the Consent Decree. Id. at § III.I.5.  Defendants’ officers shall undergo 4 hours of agreed upon/appropriate training within ninety (90) days of the entry of the Consent Decree and 4 hours of training per calendar
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year. The training shall cover compliance with racial profiling laws, search and seizure law, and provisions set forth in the Consent Decree. Id. at III.J.  Defendants shall institute internal review procedures every quarter to ensure compliance with Consent Decree. Id. at § III.K.  An impartial Monitor will address Defendants’ compliance with the Consent Decree and all relevant laws. Id. at § IV. In addition to these terms, the Consent Decree provides that Defendants settle this case without an admission of liability, id. at § I.D; that the certification of the class in this case is not admissible for any purpose in any other litigation, id. at § VI.A; and that the Consent Decree may not be introduced as evidence for any purpose in any other proceeding other than the enforcement of the Consent Decree, id. at § VI.E. In a separate agreement dated June 15, 2012, Defendants agreed to pay, and Plaintiffs’ attorneys agreed to accept, $520,000 as attorneys’ fees to Plaintiffs’ attorneys, Timothy B. Garrigan, David J. Guillory, and Stephanie K. Stephens. This payment covers work performed by those attorneys as of June 15, 2012, as well as their best efforts to negotiate a settlement agreement and obtain court approval of that agreement pursuant to Rule 23(e). The June 15 agreement also requires Defendants to pay the costs of providing notice to the Certified Class in the event of a settlement, which costs will not exceed $30,000. See Exhibit 3; see also Consent Decree at § V.B. The parties’ dispute over attorneys’ fees was resolved as a result of a mediator’s proposal that was accepted by the parties. Plaintiffs’ counsel represents that the payment of $520,000 was a substantial discount in Plaintiffs’ counsel’s lodestar. Pursuant to Rule 23(e)(3), the parties hereby notify the Court that, other than as stated in the Consent Decree and the agreement dated June 15, 2012, there are no agreements requiring
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disclosure that were “made in connection with the propos[ed] [settlement].” See Fed. R. Civ. P. 23(e)(3).
C. Proposed Notice to the Class The proposed notice form (the “Notice”) is attached as Exhibit 2. The Notice contains a summary of the terms of the Consent Decree, a description of the Certified Class, instructions on how to obtain further information about the Consent Decree, and procedures for objecting and appearing at the fairness hearing. The Notice (in both English and Spanish) will be mailed to members of the Certified Class. It also will be prominently displayed at the Tenaha City Office, located at 122 North Center Street, Tenaha, Texas, and the Shelby County Courthouse, located at 200 San Augustine Street, Center, Texas. In addition, the Notice will be distributed to local community groups and disseminated to publications that may have an interest in the settlement of the case, and posted on the website for the American Civil Liberties Union (ACLU).
ARGUMENT I. Standard of Review
Settlements are “‘highly favored’” and “‘will be upheld whenever possible because they are a means of amicably resolving doubts and preventing lawsuits.’” Miller v. Republic Nat’l Life Ins. Co., 559 F.2d 426, 428 (5th Cir. 1977) (quoting Pearson v. Ecological Sci. Corp., 522 F.2d 171, 176 (5th Cir. 1975)). The public policy favoring settlement agreements is particularly strong in complex class action litigation, where voluntary pretrial settlements obviate the need for expensive and time-consuming litigation. See Bass v. Phoenix Seadrill/78, Ltd., 749 F.2d 1154, 1164 (5th Cir. 1985); Maher v. Zapata Corp., 714 F.2d 436, 455 (5th Cir. 1983); Manchaca v. Chater, 927 F. Supp. 962, 966 (E.D. Tex. 1996).
When considering whether to grant preliminary approval to a class action settlement, the
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Court’s role is to review the proposal preliminarily to determine whether it suffers any obvious defects that would preclude final approval and is otherwise sufficient to warrant public notice and a hearing. McNamara v. Bre-X Minerals Ltd., 214 F.R.D. 424, 427 n.2 (E.D. Tex. 2002); Manual for Complex Litigation Fourth §§ 13.14, 21.633 (2004) (explaining that class notice under Rule 23(c)(2) and settlement notice under Rule 23(e) may be combined). “If the proposed settlement discloses no reason to doubt its fairness, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, does not grant excessive compensation to attorneys, and appears to fall within the range of possible approval, the court should grant preliminary approval.” In re OCA, Inc. Sec. & Derivs. Litig., No. 05-2165, 2008 WL 4681369, at *11 (E.D. La. Oct. 17, 2008).
II. The Proposed Consent Decree Is Fair, Reasonable, and Adequate The Court should preliminarily approve the Consent Decree because its terms are fair,
reasonable, and beyond adequate. While the Court has discretion in evaluating preliminarily the settlement’s fairness and reasonableness, courts are generally guided at this stage by the same factors that govern final approval of class action settlements: (1) the potential “existence of fraud or collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the probability of [the] plaintiffs’ success on the merits; (5) the range of possible recovery; and (6) the opinions of class counsel, class representatives, and absent class members.” Reed v. Gen. Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983). These factors weigh in favor of the proposed Consent Decree in this case.
A. There Is No Fraud or Collusion Behind the Consent Decree The Consent Decree was negotiated between the parties at arm’s length, and there
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is no suggestion of fraud or collusion. “As a general principle, ‘the courts respect the integrity of counsel and presume the absence of fraud or collusion in negotiating the settlement, unless evidence to the contrary is offered.’” Hemphill v. San Diego Ass’n of Realtors, Inc., 225 F.R.D. 616, 621 (S.D. Cal. 2005) (citing A. Conte and H. Newberg, Newberg on Class Actions § 11.51 (4th ed. 2002) at 158-59). This case has been vigorously contested by both sides. The parties engaged in extensive briefing and discovery and have negotiated at arm’s length a resolution of the action, which resulted in the Consent Decree. Furthermore, because the Consent Decree provides for only injunctive relief and not monetary damages, there is no danger that the named Class Members colluded with the Defendants to sacrifice the interests of the Certified Class for their own monetary gain.
As this Consent Decree was the result of the fair functioning of the adversarial process, the first factor clearly supports preliminary approval.
B. The Complexity, Expense, and Likely Duration of Litigation Favors the Consent Decree
This action presents several complex factual and legal issues that favor resolution of this litigation through a class-wide settlement. Early settlement in civil rights actions for injunctive relief is generally favored because it avoids potentially protracted litigation involving remedial decrees and reduces transaction costs. See Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir. 2004).
Plaintiffs’ counsel have undertaken significant factual and legal investigation to develop the claims here, and full prosecution of a class action through trial would generate massive costs for both sides. Moreover, this litigation has already lasted more than four years, and without a settlement it could last many more months (and possibly years if there are appeals). Obtaining
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timely relief is particularly important to the Certified Class to avoid subjecting the alleged harms on themselves and others.
In sum, the Consent Decree allows both sides to obtain an expeditious resolution of this case, saves the parties the needless expense of continued litigation, and provides benefits to the Certified Class. Accordingly, this factor weighs in favor of approving the Consent Decree.
C. Proceedings Are Advanced Sufficiently to Warrant Settlement The Court should approve a settlement agreement if a case has advanced far enough to enable the parties to assess the strength of their litigating positions. See In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 241 (5th Cir. 1982) (suggesting settlements should be approved unless “the record shows unmistakably that the settlement was the product of uneducated guesswork”). In this case, the parties have delved into extensive discovery, including eleven depositions and the exchange of nearly 35,000 documents and video recordings of several hundred traffic stops. The parties have discussed the contested issues at length as part of their settlement negotiations. Critical legal issues in the case also have been litigated in pretrial motions to dismiss, on various discovery issues, and on class certification. Accordingly, both sides are well-informed about their case and in a position to negotiate a fair settlement. Consequently, this factor warrants preliminary approval of the Consent Decree. D. The Probability of Success on the Merits Favors Settlement “[A]bsent fraud or collusion, the most important factor [in evaluating settlements] is the probability of the plaintiffs’ success on the merits.” Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. 1982). This factor requires the Court to assess whether, in light of the inherent risks of litigation, the proposed settlement is reasonable. Reed, 703 F.2d at 172. Plaintiffs believe that
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the evidence would allow them to prove that Defendants violated the Fourteenth Amendment Equal Protection rights of the Certified Class. While Plaintiffs believe they have a strong case, they also recognize the potential legal and factual defenses asserted by Defendants in the case. Accordingly, Plaintiffs believe a negotiated settlement that provides immediate relief is more favorable to protracted litigation and an uncertain result in the future. Similarly, Defendants have asserted numerous defenses and have not admitted or conceded any wrongdoing, but they also recognize the risks inherent in proceeding to trial.
E. The Range of Possible Recovery Strongly Favors Settlement The benefits for the Plaintiffs and Certified Class are well in line with the range of possible recovery in light of the limited scope of the class certification. (See Class Certification Opinion and Order, Dkt. 233, p. 57.) In an action for declaratory and injunctive relief, the range of possible recovery is generally limited by the specific forms of relief requested in the complaint. See Ault v. Walt Disney World Co., 254 F.R.D. 680, 688 (M.D. Fla. 2009). The Consent Decree provides the Certified Class with the most important relief sought by the Third Amended Complaint. Specifically, in the Consent Decree, Defendants agree to implement or modify various policies and procedures relating to traffic stops, detentions, canine sniffs, searches, seizures, and forfeitures to ensure compliance with the Fourteenth Amendment Equal Protection Clause. Accordingly, the Consent Decree falls within the reasonable range of possible recovery for Plaintiffs, and this fifth factor counsels for preliminary approval of the agreement. F. Class Counsel Favors Settlement Class counsel is of the opinion that this Consent Decree is a favorable outcome for the class. Class counsel arrived at this conclusion after extensive investigation and negotiations with
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Defendants’ counsel. Class counsel have experience litigating class actions and, based on their expertise, believe that the Consent Decree provides a favorable result to the class.
Thus, the sixth factor favors preliminary approval of the Consent Decree. III. The Court Should Approve Parties Proposed Form and Method of Class Notice
Rule 23(e)(1) requires that the court “direct notice in a reasonable manner to all class members who would be bound by the proposal.” The Court has complete discretion in determining what constitutes reasonable notice of a class settlement under Rule 23(e), in form as well as method, particularly in a Rule 23(b)(2) class. Fowler v. Birmingham News Co., 608 F.2d 1055, 1059 (5th Cir. 1979); 7B Fed. Prac. & Proc. Civ. § 1797.6 (2009). “A class settlement notice need only properly identify the plaintiff class and generally describe the terms of the settlement so as to alert members ‘with adverse viewpoints to investigate and to come forward and be heard.’” DeHoyos v. Allstate Corp., 240 F.R.D. 269, 298 (W.D. Tex. 2007) (citation omitted).
Here, the proposed notice procedures involve mailing the Notice (in both English and Spanish) to all reasonably identifiable members of the Certified Class; prominently displaying the Notice at the Tenaha City Office and the Shelby County Courthouse; distributing the Notice to local community groups; disseminating it to publications that may have an interest in the settlement of the case; and posting it on the ACLU’s website. These notification procedures are specifically tailored to ensure that all reasonably identifiable members of the Certified Class will be informed of the Consent Decree and their rights to object. In particular, the parties believe
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that efforts to mail the Notice to members of the Certified Class are reasonably calculated to inform them of the Consent Decree.3
Despite these extensive proposed notice procedures, counsel for the parties are aware that each and every member of the Certified Class is unlikely to actually receive the Notice. The parties’ records of class members’ addresses are several years old, exhaustive records of all class members’ addresses may not have been maintained, and the class members are now spread out across the country. These practical difficulties should not pose an obstacle to this Court’s approval of the proposed notice procedures. See In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1099, 1103-04 (5th Cir. 1977) (“Rule 23[] mandate[s] that absentee class members be given the best notice practicable under the circumstances . . . .”) (internal quotation and citation omitted); DeHoyos, 240 F.R.D. at 296 (“Individual notice is not required when there is no reasonable way to sufficiently identify the class members.”). The extensive notice procedures that the parties intend to undertake are reasonably calculated to reach as many members of the Certified Class as possible.
The contents of the Notice are adequate to inform members of the Certified Class of their rights. The Notice contains a description of the Certified Class, a summary of the litigation and the proposed Consent Decree, a discussion of how to obtain more information, and instructions about how to file an objection. Class notices should generally provide only limited information so as not to confuse or overwhelm class members, and a simple summary of the settlement is particularly appropriate in class actions certified under Rule 23(b)(2). Id. at 301. The proposed Notice here provides ample information to enable members of the Certified Class to what relief
3 “[S]ending notice by mail is preferred when all or most of the class members can be identified.” DeHoyos, 240 F.R.D. at 296.
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the Consent Decree will provide, how to file an objection, and how to obtain more information.4 The Notice is therefore reasonable and satisfies Rule 23(e)’s requirements.
IV. The Attorneys’ Fees and Expenses Provided for by the Consent Decree Are Reasonable
In an agreement dated June 15, 2012, and as part of the Consent Decree, Defendants have agreed to pay $520,000 in attorneys’ fees to Plaintiffs’ attorneys, Timothy B. Garrigan, David J. Guillory, and Stephanie K. Stephens. See Exhibit 3; see also Consent Decree at § V.B. The Court may award reasonable attorneys’ fees and nontaxable costs that are authorized by the parties’ agreement in a class action settlement. See Fed. R. Civ. P. 23(h). The negotiated fee award of $520,000.00 is entirely reasonable, and fully consistent with the law of this District, given the complexity of this case, the substantial work and time invested to litigate and ultimately negotiate a settlement, and the significant benefits and relief provided to the Certified Class as a result. The parties thus submit that the award of fees and costs provided by the Consent Decree should be preliminarily approved by the Court.
CONCLUSION For the foregoing reasons, the Court should preliminarily approve the Consent Decree, approve the form and method of notice to the Certified Class, and schedule appropriate dates for a fairness hearing and other proceedings necessary to give final approval to the Consent Decree. Following the fairness hearing, the Court should enter final judgment.
4 The Notice also informs the Class Members, pursuant to Rule 23(h)(1), of the attorneys’ fees that are included as part of the settlement.
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Dated: August 3, 2012
Counsel for Plaintiffs and Plaintiffs’ Class
/s/ Timothy Borne Garrigan Timothy Borne Garrigan Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963-1902 (936) 560-6020
/s/ David Joseph Guillory David Joseph Guillory Lone Star Legal Aid—Nacogdoches 414 E Pilar Street Nacogdoches, TX 75961 (936) 560-1455
/s/ Elora Mukherjee Elora Mukherjee Sarah Hinger American Civil Liberties Union 125 Broad Street New York, NY 10004 (212) 549-2664
/s/ Stephanie Kay Stephens Stephanie Kay Stephens 119 North Street, Suite E Nacogdoches, TX 75961 (936) 559-7600

Counsel for Defendants
/s/ Robert Scott Davis Robert Scott Davis Flowers Davis LLP 1021 E.S.E. Loop 323, Suite 200 Tyler, TX 75701 (903) 534-8063
/s/ Chad Carlton Rook Chad Carlton Rook Flowers Davis LLP 1021 E.S.E. Loop 323, Suite 200 Tyler, TX 75701 (903) 534-8063
Attorneys for Defendant Shelby County
/s/ Galen Robert Alderman Galen Robert Alderman, Jr. Zeleskey Law Firm, PLLC 1616 S. Chestnut Lufkin, TX 75902 (936) 633-4209
/s/ Brent Lee Watkins Brent Lee Watkins Zeleskey Law Firm, PLLC 1616 S. Chestnut Lufkin, Texas 75902 (936) 633-4209
Attorneys for Defendant City of Tenaha
/s/ Walter Thomas Henson Walter Thomas Henson Ramey & Flock 100 E Ferguson, Suite 500 Tyler, TX 75702-0629 (903) 597-3301
Attorneys for Defendant Lynda K. Russell and the Shelby County District Attorney’s Office
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, et al. and a

Certified Class of Other Similarly

Situated Persons,

:

Plaintiffs

:

v.

:

:

CITY OF TENAHA DEPUTY

CITY MARSHAL BARRY

WASHINGTON, in his individual

and official capacity, et al.,

Defendants

:

: :
: Civil Action No. 2:08-cv-288-JRG Judge Gilstrap
: : : :

DRAFT SETTLEMENT AGREEMENT AND CONSENT DECREE I. Introduction A. Description of the case
Plaintiffs filed this case in 2008 to challenge the Defendants’ alleged illegal “stop and seize” practice of targeting, stopping, detaining, searching, and often seizing property from individuals who are, or appear to be, members of a racial or ethnic minority and their passengers. (Class Certification Opinion and Order, Dkt. 233, p. 2.) The evidence demonstrates that this “interdiction program” began in 2006, and Plaintiffs allege that it is ongoing. (Id. at 3.) According to Plaintiffs, Defendants targeted members of the proposed class for traffic stops because of their race or ethnicity and then subjected them to detention, arrest, or search and seizure without legal justification and in violation of their constitutional rights. (Id.) Plaintiffs further allege that Defendants instituted the interdiction program, not for legitimate law enforcement purposes, but in order to enrich

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their offices and themselves by seizing and converting cash and other valuable personal property they could find during the course of the illegal stop and seize practice. (Id.)
The Defendants deny these allegations and deny that they violated the constitutional rights of the named Plaintiffs or the class as a whole.
Plaintiffs initially sought class treatment of Fourth Amendment search and seizure claims, Fourteenth Amendment Equal Protection claims, and claims for monetary relief. The Court only certified the plaintiff class for Fourteenth Amendment Equal Protection claims for injunctive and declaratory relief. (Id. at 57.) The Defendants sought a discretionary interlocutory appeal of the class certification pursuant to Federal Rule of Civil Procedure 23(f) which was denied, and then denied again when the Defendants asked the Fifth Circuit Court of Appeals to rehear the request. The parties then negotiated and agreed to propose this Consent Decree.
B. Parties: 1. The Plaintiffs are James Morrow, Javier Flores and William Parsons, the Court designated class representatives, and the certified class as defined below in Sections I.E and I.F. 2. The originally named Defendants include: the City of Tenaha Deputy City Marshal Barry Washington, in his individual and official capacities (who has since resigned from office); the City of Tenaha Mayor George Bowers, in his official capacity only (who is the former mayor); the Shelby County District Attorney Lynda K. Russell, in her individual and official capacities (who has since resigned from office); the Shelby County District Attorney Investigator Danny Green, in his individual and official
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capacities (who has since retired); and the Shelby County Precinct 4 Constable Randy Whatley, in his individual and official capacities (who has since resigned from office). 3. The parties agree to realign the defendants as follows: Shelby County will be bound as a Defendant via the County Judge Rick L. Campbell, or his successor, in his official capacity; the City of Tenaha is bound as a Defendant via the Mayor Orinthia Johnson, or his successor, in his official capacity; and the Shelby County District Attorney’s Office is bound as a Defendant via (resigned) Shelby County District Attorney Lynda K. Russell, or her successor, in her official capacity. 4. Russell resigned from the Shelby County District Attorney’s Office on July 19, 2011 effective December 31, 2011. As of the date the parties sign this Consent Decree and submit it to the Court for approval, Ms. Russell’s successor in the office of the Shelby County District Attorney has not been appointed by the Governor of the State of Texas, as required by the Texas Constitution, art. 4, sec. 12. In the absence of the Governor’s appointment, and until a new District Attorney for Shelby County is duly qualified, Russell continues to have such authority to bind the Shelby County District Attorney’s Office in her “official capacity” as may be provided by Tex. Const., art. 5, Sec. 21; Tex. Const., art. 16, Sec. 17. All parties recognize that Russell has in fact resigned from the Shelby County District Attorney’s Office, that her resignation was accepted by the Governor of Texas, that she ceased serving as District Attorney on
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December 31, 2011 and has received no pay from the State of Texas or Shelby County, Texas regarding her resigned position, that she has not yet been replaced by the Governor, and that she is not responsible or personally liable for any actions that the Shelby County District Attorney’s Office has taken since her resignation. Russell is a Defendant in her official capacity on behalf of the Shelby County District Attorney’s Office only to the extent permitted by the Texas Constitution and Texas law. 5. For purposes of this Consent Decree, the term “Defendants” shall include the aforementioned Defendants, their successors, employees, agents, and/or contractors. Where this Consent Decree uses the terms officer or officers, such terms refer to certified law enforcement officers employed by, contracted by, or otherwise working on behalf of Defendants to conduct traffic stops. 6. Defendants Washington, Green, and Whatley remain defendants in their individual capacities solely for purpose of Section VI.F of this Decree.
C. Plaintiffs’ claims: Plaintiffs claim that Defendants’ conduct violates Plaintiffs’ Fourteenth Amendment rights to equal protection and due process. (Dkt. 233, p. 2-3.) Plaintiffs seek classwide declaratory and injunctive relief. (Id. at 3.)
D. Defendants’ claims: Defendants deny the allegations made by the Plaintiffs, both individually and as a Class. Defendants settle this case without an admission of liability and to avoid the further time and expense associated with protracted litigation of this nature.
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E. Certified Class: The parties acknowledge that by Order dated August 29, 2011, the Court certified the plaintiff class pursuant to Federal Rule of Civil Procedure 23(b)(2), to include: 1. People who are, or appear to be, members of racial or ethnic minority groups and those in their company, and 2. Were, or will be, traveling in, through, or near Tenaha at any time after November 1, 2006, and 3. Were, or are, subject to being stopped by one or more Defendant for an alleged traffic violation.
F. The Court limited the claims for class treatment to whether the Defendants’ interdiction program targeted apparent non-Caucasians for traffic enforcement in violation of the Equal Protection Clause of the Fourteenth Amendment, and limited the available relief to injunctive and declaratory relief. (Dkt. 233, p. 4243.)
G. Mutual recognition of principles All parties to this Settlement Agreement and Consent Decree recognize the need for (1) diligent law enforcement, (2) the proper use and implementation of legitimate police practices, and (3) compliance with the requirements and mandates of the Equal Protection clause of the Fourteenth Amendment.
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II. Purpose of Consent Decree A. Efficiency: The parties’ agreement to this Consent Decree provides efficiencies
for the parties and the Court. The parties avoid the considerable costs and efforts of pretrial preparations, trial presentations, and possible appeals. The Court avoids expending considerable effort to resolve all of the disputes associated with the parties’ efforts and the difficult task of determining liability and possibly formulating injunctive relief that would grant the plaintiff class relief balanced with the governmental interests claimed by the Defendants. B. Avoiding uncertainty: The parties avoid the uncertainty of trial and any subsequent appeals. With this Consent Decree, the parties have greater input and control over the settlement than would be possible with court-ordered injunctive relief resulting from trial. C. Ending alleged racial profiling: The parties seek to prohibit alleged racial profiling that allegedly violates the Equal Protection Clause of the Fourteenth Amendment. The parties agree that the Defendants will prohibit any alleged incentives and alleged practices that may result in alleged racial profiling, in a manner that can be verified by the parties, the Monitor, and the Court. D. Concluding litigation: The parties seek to resolve all remaining issues in this class action by entry of this enforceable Consent Decree.
In furtherance of these purposes, the parties have agreed to the following binding and enforceable prescriptions, which shall be enforced by this Court, and are hereby ORDERED:
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III. Provisions Regarding Traffic Stops and Practices Incident to Traffic Stops:
A. Impartial policing policy: On the date this Order is entered, the Defendants will implement written policies and practices, requiring that the Defendants comply with all federal and state laws, rules, and regulations relating to alleged racial profiling and the prohibition of alleged racial profiling to ensure that traffic stops, searches, and seizures are not conducted on the basis of the apparent race or ethnic origin of the suspect, except where the law permits race or ethnic origin to be considered in determining whether a person shall be stopped (e.g., where a suspect has been described by his or her race). These policies shall include the information in the model set forth in Appendix A to this Consent Decree.
B. Provisions for traffic stops: 1. Definition: A traffic stop occurs whenever an officer observes a reason to initiate the stop of a vehicle based on an alleged violation of traffic laws or any other violation alleged to have been observed by the officer conducting the stop, and continues until the person stopped is free to leave or, if arrested, until the person is presented to a jail for booking. 2. “Person” or “persons,” as used in this Consent Decree, refers to the drivers and passengers subject to traffic stops by an officer. 3. Any traffic stop that does not strictly comport with all applicable state and federal laws and the provisions of this Consent Decree is prohibited. Any evidence gathered as a result of a non-compliant stop, made after the entry of this Consent Decree, shall be presumptively inadmissible as evidence in
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any court or other proceeding adverse to the person stopped. If such evidence is submitted, it must be accompanied by an explanation of this provision. In considering whether to admit evidence from a noncompliant stop, the relevant tribunal may consider the facts surrounding the non-compliant nature of the traffic stop in determining whether the evidence should be admitted. Among the factors considered are the fact and purposes of this provision, whether the non-compliance could have been avoided, and whether the officer took immediate steps to correct the situation or repair the malfunction. 4. Equipment required: All vehicles used by Defendants to conduct traffic stops shall be equipped with appropriate video and audio recording devices that have pre-event features and other capabilities necessary to make the recordings required by this Consent Decree. 5. Audio and video recording requirements: All traffic stops conducted by Defendants shall be mechanically recorded by both video and audio recordings, including: the use of the pre-event capabilities to capture the reason for the stop, and record the location, time, date, speed, the identity of the officer(s) and agency operating the vehicle, and any radar readings pertinent to the stop. The recordings shall also capture any canine sniffs, searches, seizures, detentions, and to the extent reasonable, arrests, resulting from a traffic stop. All oral communication and interaction with the person being stopped must be captured in the recordings. If a stop results in an arrest, the recordings shall continue until the subject is
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transported inside the jail. During the stop, the officer shall contemporaneously orally state on the recording his or her reason for the stop, the basis for any suspicion of any other criminal activity or probable cause to believe an offense has been or is being committed, including the offense suspected, and any reason to believe any currency or property constitutes contraband or that there is probable cause for a seizure. The recordings must not be obscured by conducting matters outside of the range of the recording device(s) or in any other avoidable manner. If the officer has made a good faith attempt to comply with this provision, and the audio and video recordings are obscured or impaired due to unforeseeable and unavoidable events, the officer shall document in writing the reason for the failure to record all relevant events. All video and audio recordings shall be preserved unedited and in their native format, or in some other form that can be readily authenticated as valid and unaltered, for at least four years. 6. Documentation required, including profiling information: An officer shall prepare a report under his or her name and badge number that complies with Texas Code of Criminal Procedure Article 2.133 and this Consent Decree. This written documentation shall be preserved unedited, or in some other form that can be readily authenticated as valid and unaltered, for at least four years. 7. Whenever an officer documents the race or ethnicity of a person in accordance with this Consent Decree, he or she must do so on the basis of
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the officer’s perception of the person’s race or ethnicity to the best of the officer’s ability. 8. Reporting to dispatch: All traffic stops shall be reported to dispatch before the officer makes contact with the driver, except in emergency situations. Except in emergency situations, the officer shall report, and the dispatcher shall log, the identity of the officer, the location of and reason for the stop, and a description of the vehicle including its license number. 9. Pretext stops prohibited: All pretextual stops are prohibited. 10. Duration of stop: A stop must be no longer than necessary to accomplish the purpose of the stop, presumptively 15 minutes or less for a traffic violation punishable by issuance of a traffic ticket. For other situations, such as a driver possibly impaired by alcohol or drugs, the presumptive 15 minute time limit need not apply. C. Provisions for detentions incident to traffic stops 1. Reporting to dispatch: All detentions resulting from traffic stops shall be reported to dispatch, along with the officer’s claimed reason(s) for the detention, as soon as reasonably possible after the initiation of the detention(s). The term “reasonably possible” is meant to take into account the surrounding circumstances at the time and should take into account officer, suspect and public safety. 2. Any detention resulting from a traffic stop must be properly documented according to Texas Code of Criminal Procedure Article 2.133 and this Consent Decree.
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D. Provisions for canine sniffs incident to traffic stops 1. The Defendants to this Consent Decree will stipulate that they currently do not utilize canines for any aspect of traffic stops. 2. Definition: The term “canine sniff” means any situation in which a canine is called upon to smell the area of a vehicle or person for the purpose of detecting contraband as the result of a traffic stop. 3. Requires reasonable suspicion of criminal activity: A canine sniff shall only be initiated when it is supported by reasonable suspicion that a crime has been or is in the process of being committed. 4. Reporting to dispatch: At the time the officer requests a “canine sniff,” he or she shall report the request, and basis for the request, to dispatch. The dispatcher shall log that information. 5. Explanation for person: Before the initiation of any canine sniff, an officer shall provide written notice to the person whose property or person will be subject to the sniff. This written notice shall be in both English and Spanish and substantially similar to the model set forth in Appendix B to this Consent Decree. 6. Audio and video recording requirements: Any canine sniff shall be mechanically recorded as required by this Consent Decree and any applicable state and federal law. 7. Documentation required: For any traffic stop in which a canine sniff is conducted, the officer conducting the stop shall make a written report, including: the name, identification number, and agency of the dog handler;
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identification information for the canine; a description of the circumstances that prompted the canine sniff; whether any alerts were made by the canine; whether the proximity of the canine sniff was physically searched and whether any contraband was located; a thorough narrative description of the use of the canine, including, if an alert was given, a detailed description of where and how the alert was given, how many times the canine circled the vehicle or other property or person searched, how long it took for the canine to alert, and whether the canine exhibited any behaviors inconsistent with its training or otherwise unusual. These reports shall be preserved unedited, or in some other form that can be readily authenticated as valid and unaltered, in a Canine Performance Log kept by the pertinent agency and retained for at least four years. The Canine Performance Log shall also include records of any complaints about the canines used for sniffs and the responses to those complaints; these records shall be preserved for at least four years. 8. Certification and training requirements:
a. All canines used in canine sniffs shall meet Scientific Working Group on Dog and Orthogonal Detector Guidelines (“SWGDOG”) certification guidelines before being utilized in any canine sniff. All canine handlers must be certified in accordance with SWGDOG guidelines prior to participating in a canine sniff. Training shall be required for all officers and canines in accordance with SWGDOG guidelines and the
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requirements set forth in this Consent Decree. The SWGDOG guidelines referred to in this Consent Decree are available at www.swgdog.org and included in Appendix C to this Consent Decree. b. The Defendants shall conduct an annual review of the utilized certification and training guidelines and update their guidelines in accordance with industry standards, provided that those standards do not fall below the standards set out for the protection of individuals in the SWGDOG guidelines. Defendants conducting canine sniffs shall annually certify their review, including a description of any updates, to the Court and other parties during the duration of the Consent Decree. 9. Performance records for canine handlers: Any Defendant(s) using a canine shall document, monitor and investigate all complaints regarding the use of canines by that agency. Such Defendant shall produce a quarterly performance report, compiling information from written reports and mechanical recordings and complaints, to the designated officer with final decision-making authority over the use of canines. Such Defendant shall provide copies of these reports to the Monitor on a quarterly basis during the duration of the Consent Decree. 10. Certification of compliance: On the date this Order is entered, the Defendants will certify to the Court that they are not using canines for any aspect of traffic stops. Each Defendant’s certification will constitute that
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Defendant’s compliance with all the canine-related provisions of this Consent Decree. Should any Defendant seek to use a canine for any aspect of traffic stops, that Defendant shall first notify the Monitor and Plaintiffs’ Counsel. E. Provisions for searches incident to traffic stops 1. Report to dispatch and request for back-up: Before any officer conducts a search resulting from a traffic stop, the officer will report the event and his or her intention to dispatch. The officer will also request that dispatch send back-up officers, if available, to the scene to observe any search resulting from a traffic stop. The dispatcher shall log this information. 2. For all consent searches, officers must first orally and in writing advise a person of his or her right to refuse consent to search and obtain written consent for that search using a Consent to Search form. That Consent to Search form shall be in both English and Spanish and substantially similar to the model provided in Appendix D to this Consent Decree. 3. Audio and video recording requirements: Any search resulting from a traffic stop and the basis therefor shall be mechanically recorded, as required by Section III.B.5. If a search is allegedly based on consent, the officer’s request to search and the person’s consent to the same must be captured on the mechanical recording required by Section III.B.5 and in writing. The consent recorded under this section shall include: (a) a statement that the person subject to search fully understands that he or she may refuse to give the officer consent to search; (b) a statement that the
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person subject to search is freely and voluntarily giving the officer consent to search; and, (c) a statement that the person subject to search may withdraw the consent at any time during the search. 4. Any search incident to a traffic stop must be documented consistent with Texas Code of Criminal Procedure Article 2.133 and this Consent Decree. 5. Duration: No search shall prolong the detention any longer than necessary to effectuate the search based on the reasons for the search. 6. Responsibility for damage: The responsible Defendant(s) shall pay a person for the full costs and expenses of any property damage that may result from a search as required by state law. This provision shall not apply to any damage reasonably caused during a search that results in the discovery of contraband. The responsible Defendant(s) shall pay or reimburse the costs and expenses resulting from a search within thirty (30) days of receipt of written notice and reasonable substantiation of such damage. If a Defendant contests that the damage was the result of a search, the Monitor shall be the final arbiter of disputes under this provision, utilizing a preponderance of the evidence standard. All persons subject to a search will be provided with written notice of this provision at the time of the search. That written notice shall be in both English and Spanish and substantially similar to the model provided in Appendix E to this Consent Decree.
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F. Provisions for seizures incident to a traffic stop 1. “Property” refers to any tangible thing, including currency or other monetary instrument. No property shall be seized unless the seizing officer advises the person of the basis for believing the property is subject to seizure. Prior to seizing any property, an officer must report the intended seizure to dispatch. The dispatcher shall log the information. 2. Audio and video recording requirements: Any seizure shall be mechanically recorded, as required by Section III.B.5. 3. Any seizure must also be documented in accordance with Texas Code of Criminal Procedure Article 2.133 and this Consent Decree. If a safety issue prevents an officer from reciting the basis for a seizure, the officer shall promptly, and as soon as reasonably possible, provide a detailed written narrative description of the search which resulted in the seizure, the safety concern that prevented an oral recitation of why the officer thought that seizure was legal, and a description of the property seized. 4. Before an officer seizes any property during a traffic stop, the officer must provide written notice to the person subject to seizure of his or her rights and the procedures for return of the seized property. The written notice shall be in both English and Spanish and substantially similar to the model provided in Appendix F to this Consent Decree. 5. Documentation required: Any Defendant(s) seizing property or in control of seized property shall keep and maintain full and complete records of any property seized, including the officer(s) who seized the property; the
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name of the person from whom the property was seized; a description of the property seized, including the exact kinds, quantities, and forms of the property; if the property is deposited in an interest-bearing account, the location of the account and the amount of interest; the judicial order or statute allowing the disposal of the property; to whom the property was delivered; and the state and manner of the destruction or disposition of the property, if any. 6. Provide inventory: For all traffic stops that result in the seizure of any property, the officer must record the exact location from which the assets were obtained; a description of the property, including the exact kinds, quantities, and forms of the property. Upon the seizure of property, the officer shall supply the person with an inventory of all property seized. 7. Safekeeping: Safe storage of all seized property shall be governed by Texas Code of Criminal Procedure Article 59. 8. Return of Property: If a determination is made that seizure is improper, the Defendant(s) in possession of the property shall return to a person all property seized within thirty business days. G. Provisions for arrests incident to traffic stops 1. Back-up: Before any arrest incident to a traffic stop, to the extent possible, the officer shall report the intent to arrest to dispatch and request back-up, if back-up is available. The dispatcher shall log the information.
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2. Audio and video recording requirements: To the extent reasonably possible, any arrest resulting from a traffic stop shall be mechanically recorded as required by Section III.B.5.
3. Documentation required, including profiling information: For any arrest resulting from a traffic stop, the officer must record all information as required by Texas Code of Criminal Procedure Article 2.133 and this Consent Decree. All records of arrests shall be preserved unedited and in their native format, or in some other form that can be readily authenticated as valid and unaltered, for at least four years.
4. Miranda rights: If Miranda rights are required in a specific situation by federal law, the recitation of his or her Miranda rights shall be mechanically recorded as required by Section III.B.5.
H. Provisions for forfeitures incident to traffic stops: 1. A sworn statement shall be made by the seizing officer as required by Texas Code of Criminal Procedure Article 59.03, including stating with particularity which provisions of the Penal Code are violated. 2. No person with an interest in any asset subject to a forfeiture proceeding can be requested to waive formal service of the forfeiture action or compromise his or her interest in such an asset until after a response to formal service is due, unless the person is being represented by counsel regarding the matter. 3. In addition to the requirements of CCP Art. 59.03(d), an officer shall not induce or accept a person’s waiver, in any form, of interest in seized
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property unless the person is represented by counsel in the matter or until the person has had a meaningful opportunity to seek counsel and more than thirty (30) days have passed after the due date for a response to the properly served notice of forfeiture. 4. No unrepresented defendant may sign an agreed judgment in any asset forfeiture case until at least thirty days after service. 5. No unrepresented defendant may waive service or any interest in any asset forfeiture case in exchange for an agreement not to prosecute a criminal matter unless represented by counsel or the waiver occurs in the presence of a judicial officer. I. Provisions for use of forfeited property seized incident to a traffic stop: 1. The Defendants will strictly abide by Texas Code of Criminal Procedure Article 59.06. 2. Defendant(s) in receipt of asset forfeiture revenue incident to a traffic stop agrees to track such revenue and donations. 3. The Shelby County Auditor shall confirm Shelby County’s and its District Attorney’s compliance with Texas Code of Criminal Procedure Article 59.06. Before expenditure of any forfeiture revenue incident to traffic stops, the Auditor shall confirm whether such expenditure is compliant with Texas Code of Criminal Procedure 59.06. If the Auditor determines that an expenditure is not compliant with the Texas Code of Criminal Procedure, the Auditor shall notify the Shelby County Commissioner’s Court and the Monitor.
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4. The Tenaha City Council, before the expenditure of any forfeiture revenue incident to traffic stops, shall confirm compliance of such expenditure with Texas Code of Criminal Procedure 59.06.
5. All asset forfeiture revenue incident to traffic stops, including any such revenue presently existing in any Defendants’ asset forfeiture account, shall be (1) donated to non-profit organizations that provide mental health, drug, or rehabilitations services, or services for victims or witnesses of criminal offenses, in accordance with Texas Code of Criminal Procedure Article 59.06; or (2) used for the audio and video equipment necessary to comply with this Consent Decree and/or to pay the costs of law enforcement training to meet the educational requirements of this Consent Decree. Defendants and/or Plaintiffs’ Counsel may suggest recipient organizations for donations under this provision. The Monitor shall approve each recipient organization before any donations are made.
J. Training: Defendants’ officers shall undergo 4 hours of agreed upon/appropriate training within ninety (90) days of the entry of this Consent Decree and 4 hours of training per calendar year. The training shall cover compliance with racial profiling laws, search and seizure law, and provisions set forth in this Consent Decree.
K. Internal review procedures: Within sixty (60) days of the entry of this Consent Decree, each Defendant shall establish and enforce policies and procedures governing quarterly supervisory review of traffic stops including (1) a review of all records made in accordance with Texas Code of Criminal Procedure Article
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2.134; (2) a review of all written and mechanical records of stops involving searches, seizures, or arrests to determine whether they state legal grounds for a stop and actions incident to a stop; (3) review of relevant data to determine whether there are impermissible racial disparities in stops; and (4) use of canine forms and data, if any, and other relevant data or documentation. These reviews and audits shall be made available to the Monitor, who shall provide copies of such reviews and audits to the Plaintiffs’ attorneys. The purpose of these procedures shall be to ensure compliance with the terms of this Consent Decree and all other pertinent constitutional and state legal standards. IV. Monitoring and Compliance A. Selection of Monitor: Within sixty (60) days of the entry of this Consent Decree, the parties shall agree on a Monitor to nominate to the Court for appointment. The Monitor shall be a peace officer or have comparable relevant experience. The Monitor shall be impartial. Absent the parties’ agreement to a Monitor within sixty (60) days, Plaintiffs’ and Defendants’ Counsel shall each nominate two monitor candidates for the Court’s consideration. From the four nominees, the Court shall select one Monitor to carry out the responsibilities set forth in this Consent Decree. B. Defendants’ duty of disclosure: During the term of this Consent Decree, each Defendant shall quarterly make available to the Monitor all written documentation required by Texas Code of Criminal Procedure Articles 2.133, 2.134, 59.03, and 59.06, and this Consent Decree. Each Defendant also shall quarterly make available to the Monitor all unedited audio, video, and written records of any
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traffic stops as requested by the Monitor. Each Defendant shall provide the Monitor with any other relevant and necessary information, data analysis, and documents within thirty days of receiving a written request from the Monitor for the same. C. Monitor’s duties: The Monitor shall, at a minimum, review a random sample of ten percent of all stops in a given month, or ten stops, whichever is greater, unless there are fewer than ten stops in which case all stops will be reviewed. The Monitor shall review all searches and seizures that result from traffic stops in a given month to assess each Defendant’s compliance with this Consent Decree and the Fourteenth Amendment; these reviews will be credited toward the ten percent, or ten stop, minimum review requirement. The Monitor may review the records generated in compliance with Texas Code of Criminal Procedure Articles 2.133, 2.134, 59.03, and 59.06, and this Consent Decree. The Monitor may conduct an independent analysis and review of vehicular stops resulting in searches, seizures or arrests as a basis for the Monitor’s Report and Recommendations. The Monitor shall provide a quarterly Report and Recommendation to the Court during the term of this Consent Decree. The Monitor shall have the authority to recommend to the parties and to the Court practices, policies and other measures that are appropriate or necessary to ensure that each Defendant’s stop, search, and seizure practices and policies are in compliance with this Consent Decree, the Fourteenth Amendment, and Articles 2 and 59 of the Texas Code of Criminal Procedure. The Monitor shall bring to the attention of the Court any policies, practices, and other measures necessary for each Defendant’s compliance with
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this Consent Decree only after the Monitor first brings such policies, practices, and other measures to the attention of each Defendant pursuant to Section IV.D of this Consent Decree. The Monitor shall review any Complaints (as defined by Section 614.021 of the Texas Code of Criminal Procedure) or reports of noncompliance, investigate the same, and report the Monitor’s findings of noncompliance, if any, to the Court. D. Responses to Monitor’s reports: At least thirty (30) days before the Monitor submits any quarterly Report and Recommendation to the Court pursuant to Section IV.D of this Consent Decree, the Monitor shall provide a draft of such Report and Recommendation to the parties. The parties shall have thirty (30) days to review and confer regarding any aspect of the draft Report and Recommendation, and to provide comments regarding same to the Monitor. Following the Monitor’s submission of each quarterly Report and Recommendation to the Court, the parties shall have an additional thirty (30) days to provide comments, including formal objections, if any, to the Court on that Report and Recommendation. E. Benchmarks: In determining whether the Defendants are in compliance with constitutional standards with respect to stop, search, and seizure policies and practices, the Monitor and the Court may consider among other factors, (1) the number and nature of stops, searches, and seizures that do not comply with constitutional standards under the Fourteenth Amendment; (2) all information regarding the reasons provided for stops, searches, and seizures, the resultant hit rates (i.e., the rate at which stops, searches, and seizures result in the identification
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of contraband) and arrest data; and (3) racial disparities in stops, searches, and seizures. Non-compliance under the Fourteenth Amendment may be found where the evidence proves that there are substantial racial disparities in stops, searches, and/or seizures that are not explained by non-racial factors for such disparities, including but not limited to crime rates, suspect-descriptions that have been relied on for stops, police deployment patterns, racial percentages of the underlying population or other non-racial factors. V. Fees and Costs A. The Defendants shall be responsible for reasonable costs and fees of the Monitor. Each Defendant shall be responsible for the costs attributable to that Defendant. The Monitor will not bill twice for the same work. B. The Defendants shall pay counsel fees and costs to the Plaintiffs’ attorneys as previously agreed to by the parties. Payment due shall be paid within thirty (30) days of the entry of this Consent Decree. At that time, Plaintiffs’ Counsel shall execute a release of all claims for attorneys’ fees and expenses relating to this class action suit through the date of said release. VI. Miscellaneous A. The parties jointly agree to defend the certification of this class and this Consent Decree against collateral attack in this case and in any appeal taken from this case. The parties further jointly agree that the certification of this class in this specific case is not admissible for any purpose in any other litigation. B. All parties agree to exercise their best efforts and to take all reasonable steps necessary to effectuate the Consent Decree.
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C. This Consent Decree shall remain in effect for four years from the date of the entry of this Consent Decree; however, upon motion of a party, the Court may extend or shorten the four-year period.
D. Reports and recommendations of the Monitor and any Orders of the Court shall be filed of public record with the Court. All filings will redact personal information of any law enforcement officers and any persons subject to stops, searches, and seizures in this proceeding and the parties agree to keep information regarding the identities of the officers or persons stopped, searched, or subject to seizures in this proceeding confidential, unless the Court orders otherwise or unless otherwise required by the Texas Open Meetings and Records Act or the Federal Freedom of Information Act.
E. This Consent Decree may not be introduced as evidence for any purpose in any other proceeding other than the enforcement of the Consent Decree.
F. The defendants originally sued in their individual capacities—namely Barry Washington, Lynda K. Russell, Danny Green, and Randy Whatley—shall each provide a copy of this Consent Decree to any and all future employers for whom they may carry out law enforcement duties during the term of this Consent Decree.
G. Any notice, request, instruction, or other document to be given under this Consent Decree by any Party or by the Monitor to the Plaintiffs shall be in writing and delivered personally or sent registered or certified mail, postage prepaid, to the Parties as follows:
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To: Class Counsel and Plaintiffs or class members:

Timothy Borne Garrigan Class Counsel Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963-1902

Elora Mukherjee Class Counsel American Civil Liberties Union 125 Broad Street New York, NY 10004

To: City of Tenaha via its Mayor: 122 North Center Street Tenaha, Texas 75974

To: Shelby County via the Shelby County Attorney: 518 Nacogdoches Street Center, Texas 75935

To: Shelby County District Attorney

200 San Augustine Street

Suite

12

Center,

Texas 75935

H. To further serve the purposes of this Decree, the Shelby County Commissioner’s

Court has entered into an interlocal agreement with Shelby County Precinct

Constables Zack Warr (Pct. 1), Shad Sparks (Pct. 2), Billy Hearnsberger (Pct. 3)

and Stanley Burgay (Pct. 5), and their offices. The Plaintiffs have not made any

allegations of racial profiling or other allegations of improper conduct against

these non-parties or any of their employees. Section VI.H is the only section of

this Consent Decree that is applicable to the aforementioned non-parties or any of

their employees. In the interest of resolving this litigation, saving the Shelby

County Tax Payers additional costs and fees, and instilling confidence in law

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enforcement among the general public, these elected officials have agreed to enter into the interlocal agreement. The Parties to this litigation thank these public officials for their cooperation. The interlocal agreement will provide that these elected officials and their offices will:
1. Adopt an Impartial Policing Policy that includes a written Consent to Search form;
2. Use mechanical recording equipment for traffic stops and maintain the recordings of such stops for four years;
3. Comply with Art. 2.133 of the Texas Code of Criminal Procedure and Chapter 59 of the Texas Code of Criminal Procedure;
4. Affirmatively state that they are not presently utilizing a canine for vehicle searches and provide the Shelby County Commissioner’s Court with 90 days’ notice if they intend to start using such a canine;
5. Attend training furnished by Shelby County on search and seizure and forfeitures that the County has agreed to furnish pursuant to Section III. J of this Decree;
6. Allow the Monitor appointed under this Decree to review the documents and mechanical recordings of all traffic stops.
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Dated: August 2, 2012
Counsel for Plaintiffs and Plaintiffs’ Class
/s/ Timothy Borne Garrigan Timothy Borne Garrigan Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963-1902 (936) 560-6020
/s/ David Joseph Guillory David Joseph Guillory Lone Star Legal Aid—Nacogdoches 414 E Pilar Street Nacogdoches, TX 75961 (936) 560-1455
/s/ Elora Mukherjee Elora Mukherjee Sarah Hinger American Civil Liberties Union 125 Broad Street New York, NY 10004 (212) 549-2664
/s/ Stephanie Kay Stephens Stephanie Kay Stephens 119 North Street, Suite E Nacogdoches, TX 75961 (936) 559-7600

Counsel for Defendants
/s/ Robert Scott Davis Robert Scott Davis Flowers Davis LLP 1021 E.S.E. Loop 323, Suite 200 Tyler, TX 75701 (903) 534-8063
/s/ Chad Carlton Rook Chad Carlton Rook Flowers Davis LLP 1021 E.S.E. Loop 323, Suite 200 Tyler, TX 75701 (903) 534-8063
Attorneys for Defendant Shelby County
/s/ Galen Robert Alderman Galen Robert Alderman, Jr. Zeleskey Law Firm, PLLC 1616 S. Chestnut Lufkin, TX 75902 (936) 633-4209
/s/ Brent Lee Watkins Brent Lee Watkins Zeleskey Law Firm, PLLC 1616 S. Chestnut Lufkin, Texas 75902 (936) 633-4209
Attorneys for Defendant City of Tenaha
/s/ Walter Thomas Henson Walter Thomas Henson Ramey & Flock 100 E Ferguson, Suite 500 Tyler, TX 75702-0629 (903) 597-3301
Attorneys for Defendant Lynda K. Russell and the Shelby County District Attorney’s Office
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Appendix A

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Policy for Addressing Racially Biased Policing and the Perceptions Thereof1

Purpose:

This policy is intended to reaffirm this department’s commitment to unbiased policing, to clarify the circumstances in which officers can consider race/ethnicity when making law enforcement decisions, and to reinforce procedures that serve to assure the public that we are providing service and enforcing laws in an equitable way.

Policy:

A) Policing Impartially

1. Investigative detentions, traffic stops, arrests, searches, and property seizures by officers will be based on a standard of reasonable suspicion or probable cause in accordance with the Fourth Amendment of the U.S. Constitution. Officers must be able to articulate specific facts and circumstances that support reasonable suspicion or probable cause for investigative detentions, traffic stops, arrests, nonconsensual searches, and property seizures. Except as provided below, officers shall not consider race/ethnicity in establishing either reasonable suspicion or probable cause. Similarly, except as provided below, officers shall not consider race/ethnicity in deciding to initiate even those nonconsensual encounters that do not amount to legal detentions or to request consent to search.
Officers may take into account the reported race or ethnicity of a specific suspect or suspects based on trustworthy, locally relevant information that links a person or persons of a specific race/ethnicity to a particular unlawful incident(s). Race/ethnicity can never be used as the sole basis for probable cause or reasonable suspicion.
2. Except as provided above, race/ethnicity shall not be motivating factors in making law enforcement decisions.

B) Preventing Perceptions of Biased Policing

In an effort to prevent inappropriate perceptions of biased law enforcement, each officer shall do the following when conducting pedestrian and vehicle stops:

• Be courteous and professional.
• Introduce him- or herself to the citizen (providing name and agency affiliation), and state the reason for the stop as soon as practical, unless providing this information will compromise officer

1 Source: Lorie Fridell, et al., Police Executive Research Forum, Racially Biased Policing: A Principled Response 51-53 (2001).

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or public safety. In vehicle stops, the officer shall provide this information before asking the driver for his or her license and registration. • Ensure that the detention is no longer than necessary to take appropriate action for the known or suspected offense, and that the citizen understands the purpose of reasonable delays. • Answer any questions the citizen may have, including explaining options for traffic citation disposition, if relevant. • Provide his or her name and badge number when requested, in writing or on a business card. • Apologize and/or explain if he or she determines that the reasonable suspicion was unfounded (e.g., after an investigatory stop).
Compliance: Violations of this policy shall result in disciplinary action as set forth in the department’s rules and regulations.
Supervision and Accountability:
Supervisors shall ensure that all personnel in their command are familiar with the content of this policy and are operating in compliance with it.

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Appendix B

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NOTICE OF USE OF A POLICE DOG
A police officer has determined that there is reason to conduct a “canine sniff,” during which a dog will be permitted to sniff the perimeter of your person, your vehicle, and/or your property to detect contraband. A police officer may only initiate this canine sniff if he or she has reasonable suspicion to believe that a crime has been committed or is in the process of being committed.
AVISO SOBRE EL USO DE PERROS POLICÍA
Un oficial de policía ha determinado que hay razón para realizar un “olfateo por canino adiestrado,” durante el cual se le permitirá a un perro oler alrededor del perímetro de su persona, su vehículo, y/o sus bienes para detectar contrabando. Un oficial de policía sólo puede iniciar este “olfateo por canino adiestrado” si él o ella tiene una sospecha razonable de que un delito se ha cometido o está en proceso de cometerse.

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Appendix D

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NOTICE OF RIGHTS – CONSENT SEARCH
If an officer asks for your permission to conduct a search during a traffic stop:  YOU HAVE THE RIGHT TO REFUSE A SEARCH.  If you allow an officer to search your ve hicle, your property, or yourself, you ma y withdraw your consent to the search at any time.  If you give your consent today, it cannot be used to conduct a search at a later time.  If you agree to a search of your vehicle a nd/or property, the [ins ert agency nam e] is required to pay you for the costs to repair a ny damage caused by the se arch if the search does not result in the seizure of contraband. In order to receive com pensation, you must provide written notice of any da mage to the [insert agency name] at [insert address to send notice].
I, __________________________, have received notice of my rights and ___ I CONSENT TO A SEARCH. Driver’s Signature: ________________________ Date: _______ OR ___ I DO NOT CONSENT TO A SEARCH. Driver’s Signature: _________________________ Date:_______ Driver’s Name: ______________________________ Driver’s License No.: ___________________ Vehicle License No.: ____________________
Officer’s Signature: ___________________________ Date:_______ Certifying that you orally explained and obtained consent in addition to the submission of this form.
Officer’s Name (printed): _____________________ID# __________ Agency of Affiliation: _____________________________________

Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 21 of 28 PageID #: 2240
Appendix D Spanish Translation

Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 22 of 28 PageID #: 2241

AVISO DE DERECHOS – CONSENTIMIENTO PARA UN REGISTRO
Si un oficial le pide permiso para realizar un registro durante una parada de tráfico:
 USTED TIENE EL DERECHO DE NEGARSE A SER REGISTRADO.  Si usted deja que un oficial revise su vehícu lo, sus bienes, o su persona, puede revocar su
consentimiento en cualquier momento.  Si da consentim iento hoy, éste no se puede usar para realizar un registro en otro
momento.  Si accede a un reg istro de su v ehículo y/o sus bienes, [inserte el nom bre de la agen cia]
está obligada a pagar todos lo s costos necesarios para re parar cualquier tipo de daño causado por el registro si este no resulta en la incautación de cont rabando. Para solicitar esta indemnización, hay que redactar un informe escrito detallando cualquier tipo de daño y entregarlo al [inserte el nom bre de la ag encia], ubicada en [inserte dirección de la agencia donde hay que enviar el informe].

Yo, ________________________, he recibido un aviso sobre mis derechos y

______ CONSIENTO A SER REGISTRADO.

Firma del/de la conductor/a: _________________________ Fecha: __________

O

______NO CONSIENTO A SER REGISTRADO.

Firma del/de la conductor/a: _________________________ Fecha: __________

Nom

bre del/de la conductor/a:__________________________________

Número de licencia de conductor:_______________________________

Número de licencia del vehículo: _______________________________

Firma del oficial: ___________________________ Fecha:_______ Certificando que usted explicó verbalmente y
obtuvo consentimiento además de entregar este formulario.
Nombre del oficial (letra de imprenta): _____________________ # de Cédula __________ Agencia de afiliación: _____________________________________

Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 23 of 28 PageID #: 2242
Appendix E

Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 24 of 28 PageID #: 2243
NOTICE OF RIGHTS FOR PROPERTY DAMAGE INCIDENT TO SEARCH
A police officer has determined that there is reasonable suspicion of criminal activity requiring a search of your vehicle and/or property. The [insert agency name] is required to pay you for the costs to repair any damage caused by the search if the search does not result in the seizure of contraband. In order to receive compensation, you must provide written notice of any damage to [insert name of the agency] at [insert appropriate address]. You are entitled to receive reimbursement within 30 days of a determination that the [insert agency name] is liable for damaging your vehicle and/or property. [Translate to Spanish.]
AVISO SOBRE DERECHOS A INDEMNIFICACIÓN POR DAÑOS A BIENES CAUSADOS DURANTE
UN REGISTRO
Un oficial de policía ha determinado que existe una sospecha razonable de actividad criminal, la cual requiere un registro de su vehículo y/o sus bienes. La agencia [insertar el nombre de la agencia] está obligada a pagar los costos necesarios para reparar cualquier daño causado por el registro si el registro no resulta en la incautación de contrabando. Para recibir esta indemnización, usted debe proveer un informe escrito del daño causado a [insertar el nombre de la agencia], ubicada en [insertar dirección correspondiente]. Usted tiene el derecho a recibir esta indemnización dentro de un plazo de 30 días desde el momento que se establezca que [insertar el nombre de la agencia] es responsable de dañar su vehículo y/o sus bienes.

Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 25 of 28 PageID #: 2244
Appendix F

Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 26 of 28 PageID #: 2245

NOTICE OF SEIZURE OF PROPERTY AND POSSIBLE FORFEITURE
This is to serve as official notice that the items of property listed below have been seized from your possession, and may potentially be subject to forfeiture under Texas Code of Criminal Procedure (“TXCCP”) Art. 59.03.

An officer may seize your property ONLY if the officer has reason to believe it has been used in, is intended to be used in, or was gained from the commission of a criminal offense. TXCCP Art. 59.01(2). The officer must explain to you the basis for seizing your property.
 Before seizing your property, an officer must provide ALL the information included in this form for each and every item of property seized (including currency) before you review and sign this notice.
 You are entitled to a formal notice that forfeiture proceedings are being instituted against you within 30 days of the seizure. TXCCP Art. 59.04. o An officer cannot ask you to waive formal notice unless you are represented by an attorney. o An officer cannot ask you to waive any interest in any asset forfeiture case in exchange for an agreement not to prosecute you for a criminal violation unless a judge is present. o An officer cannot accept a voluntary waiver from you (if you are not represented by an attorney) until 30 days have passed after proper service of a notice of forfeiture.
 State law requires that your seized property be stored safely pending a final forfeiture verdict. If it is determined that seizure was improper, you are entitled to have your property returned to you within 30 business days of a decision not to prosecute a forfeiture claim or a forfeiture verdict in your favor, whichever occurs first.

Description of Item (including quantity)

Location of item upon seizure

Basis for seizure

Was the item seized for
evidence or for forfeiture?

___________________________ Name of property owner
___________________________ Date

___________________________________ Seizing officer’s name and identification #
___________________________________ Seizing officer’s signature

Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 27 of 28 PageID #: 2246
Appendix F Spanish Translation

Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 28 of 28 PageID #: 2247

AVISO DE INCAUTACIÓN DE BIENES Y SU POSIBLE DECOMISO
Éste sirve como aviso oficial de que los bienes detallados abajo han sido incautados de su posesión, y podrían ser sujetos a un decomiso bajo el Código de Procedimiento Criminal de Texas (“TXCCP”) Art. 59.03.
Un oficial puede incautar sus bienes SÓLO si el oficial tiene razón para creer que han sido usados en, están destinados para ser usados en, o fueron adquiridos en la comisión de un delito. TXCCP Art. 59.01(2). El oficial debe explicarle la razón por la cual ha incautado sus bienes.
 Antes de incautar sus bienes, un oficial debe proveer TODA la información contenida en este formulario para cada uno de sus bienes incautados (incluyendo dinero) antes de pedir que usted revise y firme este aviso.
 Usted tiene el derecho a un aviso formal de que un procedimiento de decomiso será aplicado contra usted dentro de un plazo de 30 días del momento de la incautación. TXCCP Art. 59.04. O Un oficial no le puede pedir renunciar a su derecho a un aviso formal a menos que usted esté representado legalmente por un/a abogado/a. O Un oficial no le puede pedir que renuncie a ningún interés en ningún caso de decomiso de bienes a cambio de un acuerdo de que no será procesado legalmente por una infracción penal a menos que esté presente un/a juez/a. O Un oficial no puede recibir una renuncia voluntaria de sus derechos (si usted no está representado por un/a abogado/a) hasta que hayan pasado 30 días después de que haya sido presentado, de manera adecuada, con la notificación de decomiso.
 La ley estatal dicta que sus bienes incautados deben ser guardados de manera segura hasta que se reciba una decisión final sobre su decomiso. Si se decide que la incautación fue ilegal, tiene derecho a que se le devuelvan sus pertenencias dentro de 30 días hábiles desde que se decida no continuar con el procedimiento de decomiso o desde una decisión judicial en favor suyo, lo que suceda primero.

Descripción del artículo (incluyendo la cantidad)

Ubicación del

Razón por la

artículo cuando fue incautación

incautado

Fue confiscado el artículo como evidencia o para ser decomisado

___________________________ Nombre del dueño de los bienes

___________________________

Fecha

Firm

___________________________________ Nombre y numero de identificación del oficial que realizó la incautación ___________________________________
a del oficial que realizó la incautación

Case 2:08-cv-00288-JRG Document 261-3 Filed 08/06/12 Page 1 of 3 PageID #: 2248
NOTICE OF PROPOSED CONSENT DECREE AND HEARING IN A CLASS ACTION
Morrow v. City of Tenaha, No. 2-08-cv-288-TJW, in the United States District Court for the Eastern District of Texas, Marshall Division
Please Read this Legal Notice – It May Affect Your Rights
TO: All persons who (1) are, or appear to be, members of racial or ethnic minority groups and those in their company, and; (2) were, or will be, traveling in, through, or near Tenaha at any time after November 1, 2006, and; (3) were, or are, subject to being stopped by one or more Defendant for an alleged traffic violation.
You are hereby notified that a hearing has been scheduled for [insert day], 2012, at [time], before the Honorable Rodney Gilstrap of the U.S. District Court for the Eastern District of Texas, 100 East Houston Street, Marshall, Texas, for consideration of a proposed Consent Decree of the claims that have been brought on your behalf in this lawsuit.
THE PURPOSE OF THIS NOTICE:
This Notice has three purposes: (1) to tell you about the proposed Consent Decree and the fairness hearing; (2) to tell you how to obtain more information, including a copy of the full proposed Consent Decree; and (3) to explain how you may object to the proposed Consent Decree if you disagree with it.
THE BASIS FOR THIS CASE:
A class action lawsuit alleged that the City of Tenaha Deputy City Marshal, the City of Tenaha Mayor, the Shelby County District Attorney, the Shelby County District Attorney Investigator, and the Shelby County Precinct 4 Constable engaged in an illegal “stop and seize” practice of targeting, stopping, detaining, searching, and often seizing property from individuals who were, or appeared to be, members of a racial or ethnic minority and their passengers. Defendants denied these allegations. The class action lawsuit was settled in August 2012 via a proposed Consent Decree. The Court has preliminarily approved the proposed Consent Decree. The proposed Consent Decree is not an admission of wrongdoing or an indication that any law was violated. The proposed Consent Decree provides remedies for the Plaintiffs’ complaints. The proposed Consent Decree does not address any claims for monetary damages that an individual may have.
A DESCRIPTION OF THE PROPOSED CONSENT DECREE:
The following description is only a summary of the key points in the proposed Consent Decree. Information on how to obtain a copy of the full proposed Consent Decree is provided after this summary.
 Defendants have agreed to adopt an impartial policing policy.  Defendants have agreed to make audio and video recordings of all traffic stops and all
searches, seizures, detentions, and arrests that result from traffic stops.  Defendants have agreed to maintain written documentation about the details of all traffic
stops.  Defendants’ police officers will report to dispatch the basis for all traffic stops and will
request backup before conducting a search pursuant to a traffic stop.

Case 2:08-cv-00288-JRG Document 261-3 Filed 08/06/12 Page 2 of 3 PageID #: 2249
 Defendants have agreed that traffic stops are presumed to take 15 minutes or less.  Defendants have agreed that they do not intend to use canines during traffic stops and
that if any Defendant wants to use canines, that Defendant will first notify Plaintiffs’ Counsel.  If a Defendant uses a canine, a canine sniff will only be allowed when a police officer has reasonable suspicion of criminal activity. All canines and canine handlers must meet certification and training requirements and must undergo periodic reviews.  Defendants have agreed to provide written notice to any person before a canine sniff is used at a traffic stop and before seeking consent to conduct a search. A police officer must provide motorists with a written inventory of all property seized. A police officer cannot ask a motorist to waive his or her interests in property, and a waiver in an individual’s interest in property can only be obtained before a judge or after the individual is represented by an attorney.  The responsible defendant shall pay a person for the full costs of property damage resulting from a search, unless the search results in the discovery of contraband.  Defendants have agreed that any evidence gathered in a way that does not comply with the Consent Decree will be presumed to be inadmissible as evidence in any court or in any proceeding adverse to the person stopped.  Defendants agree to track all revenue from and donations of asset forfeitures incident to traffic stops. All asset forfeiture revenue incident to traffic stops will be donated to nonprofit organizations, used for the audio and video equipment required by the Consent Decree, or used for training to meet the requirements of the Consent Decree.  Defendants have agreed to undergo training that covers compliance with racial profiling laws, search and seizure law, and the provisions set forth in the Consent Decree.  Defendants have agreed to institute internal review procedures every quarter to ensure compliance with the Consent Decree.  An impartial Monitor will address Defendants’ compliance with the Consent Decree and all relevant laws.  The Consent Decree provides that the certification of the class in this case is not admissible for any purpose in any other litigation, and that the Consent Decree may not be introduced as evidence for any purpose in any other proceeding other than the enforcement of the Consent Decree.  The Consent Decree resolves all claims by Plaintiffs’ Counsel for an award of attorneys’ fees.
FOR FURTHER INFORMATION:
This Notice includes a summary of the proposed Consent Decree. To understand it fully, you should read the entire Consent Decree. Copies of the proposed Consent Decree may be obtained from the ACLU’s website: [insert link].
PROCEDURES FOR AGREEMENT OR OBJECTION:
IF YOU AGREE with the proposed Consent Decree, you do not need to do anything at this time. If you wish to attend, you may be present at the public hearing on the proposed Consent Decree as stated above.

Case 2:08-cv-00288-JRG Document 261-3 Filed 08/06/12 Page 3 of 3 PageID #: 2250

IF YOU DISAGREE with the proposed Consent Decree, you have a right to object to it and to the dismissal of the remaining claims in the lawsuit. Your objections will be considered by the Court as it reviews the proposed Consent Decree ONLY IF you follow these procedures:
1. Objections must be filed in writing by mail with the Clerk of the United States District Court for the Eastern District of Texas, 100 East Houston Street, Room 125, Marshall, Texas 75670. All objections must contain the following information: a. Name, address, and telephone number of the person filing the objection. b. A statement of the reasons for the objection. c. A statement that copies of the objections have also been sent to the attorneys listed at the end of this Notice. d. A statement identifying any documents that you will seek to introduce at the Fairness Hearing and copies of the same, and the names, addresses, and telephone numbers for any witnesses who you will seek to introduce at the Fairness Hearing.
2. You must also send copies of your objections to all attorneys listed at the end of this notice.
3. The deadline for receipt of written objections by the Court and the attorneys listed below is [add date: four weeks from mailing of Notice], 2012. Objections filed by mail must be postmarked on or before [add date], 2012 to be considered timely. Objections filed or mailed after the above date will not be considered. Class members who fail to lodge objections on or before [add date], 2012, will not be permitted to testify at the fairness hearing on [add date], 2012.
4. No later than [add date], 2012, the attorneys for Plaintiffs and Defendants shall file and serve responses, if any, to objections they timely receive from persons opposed to the proposed Consent Decree.

ATTORNEYS’ NAMES AND ADDRESSES FOR PLAINTIFFS AND DEFENDANTS:

For Plaintiffs:

For Defendants:

Morrow Class Settlement c/o Timothy Borne Garrigan, Esq. Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963-1902 (936) 560-9578 (fax)
Morrow Class Settlement c/o Elora Mukherjee, Esq. American Civil Liberties Union 125 Broad Street New York, NY 10004

Robert Scott Davis Chad Carlton Rook Flowers Davis LLP 1021 E.S.E. Loop 323 Suite 200 Tyler, TX 75701
Galen Robert Alderman, Jr. Brent Lee Watkins Zeleskey Law Firm, PLLC 1616 S. Chestnut Lufkin, Texas 75902
Walter Thomas Henson Ramey & Flock 100 E Ferguson Suite 500 Tyler, TX 75702-0629

Case 2:08-cv-00288-JRG Document 261-4 Filed 08/06/12 Page 1 of 3 PageID #: 2251
KIP GLASSCOCK, P.C.
Mediator and Consulting Attorney
550 Fannin Street, Suite 1350 Beaumont, Texas 77701

Office: (409) 833-8822 Fax: (409) 838-4666

Email: kipglasscock@hotmail.com

MEDIATOR CONFIDENTIALITY PROTECTED MEMORANDUM
June 15, 2012
To: Counsel List via e-mail
Re: Civil Action No. 2:08-CV-00288-TJW ; James Morrow, et al, v. City of Tenaha Deputy City Marshall, et al; In the United States District Court for the Eastern District of Texas, Marshall Division
Dear Counsel,
I appreciated getting to visi t with counsel about the case again. As you know, I’ve kept abreast of developm ents on the case with peri odic phone calls and have been copied with efilings through the court. Congr atulations for your efforts in the settlem ent conferences which seem productive. To keep things m oving after visiting with both sides, m ay I suggest the following as a mediator’s three part proposal.
Part one: $520,000 in full settlem ent on the amount of Plaintiffs’ attorney fees. Deadline for reaching such agreement on or before 4:00 pm CDT W ednesday, June 20, 2012. Part two: If parties reach agreement on attorney fees, they will make best efforts to negotiate an agreem ent for an appropriate injunctive/consent decree, roughly following terms outlined in Plaintiffs’ and Defendants’ correspondence of May/June 2012. Deadline for reaching such agreem ent on or before 4:00 pm CDT on the fourteenth (14th) day following the date of the agreement to part one. Part three: The Parties will m ake their bes t efforts to get approval under Rule 23(e). The Defendants will be res ponsible for com pliance with, and costs of, an y Court directiv es for approval. Defendants have represented that costs of notices to be incurred by Defendants will not exceed $30,000.
Summarizing, the parties will let the mediator know of the ir acceptance or rejection of the attorney fees proposal on or before 4:00 p.m . CDT, Wednesday June 20, 2012. If all parties are in agreement at that time, they will be so adv ised and proceed to finaliz e the injunctive/consent decree language by 4 :00 pm CDT June 27, 2012. If unable to agree, the parties will only be advised that this proposal was unsuccessful. A party who does not accept this prop osal will not be able to determine whether any other party has accepted it.

Case 2:08-cv-00288-JRG Document 261-4 Filed 08/06/12 Page 2 of 3 PageID #: 2252
The provision for payment of Pl aintiffs’ counsels' future (as of this date) work on this case anticipates that future work will include only that reasonably necessary to nego tiate on, an d agree to, subm issions regarding injunc tive relief and Rule 23(e) approval. Other efforts by Plaintiffs’ Counsel are not covered by the provi sion and rem ain billable and/or subject to determination by the Court. In negotiating and drafting docum ents necessary for settlement and closing of the case, all c ounsel shall be respectful of all counsel’s tim e and shall use best efforts to work efficiently moving forward. Counsel for Defendants shall minimize the use of Plaintiffs’ counsels’ time, performing as m uch of the e ffort as reasonably possible them selves without unreasonably requiring additional or avoidable effort by Plai ntiffs’ counsel. Violations of this portion of the agreement may be brought before the Court for resolution. Respectfully, /s/Kip Glasscock Kip Glasscock KG/dw
page 2

Case 2:08-cv-00288-JRG Document 261-4 Filed 08/06/12 Page 3 of 3 PageID #: 2253 Counsel List: Mr. G. Robert Alderman, Jr. balderman@zeleskey.com Mr. Brent L. Watkins bwatkins@zeleskey.com Mr. W. Thomas Henson thenson@rameyflock.com Mr. Robert S. Davis rsd@flowersdavis.com Mr. Chad C. Rook ccr@flowersdavis.com Mr. Timothy B. Garrigan tim2@sgclaw.org Mr. David J. Guillory david.guillory@lonestarlegal.org Ms. Stephanie K. Stephens stephens_law@att.net
page 3

Case 2:08-cv-00288-JRG Document 261-5 Filed 08/06/12 Page 1 of 4 PageID #: 2254

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, et al. and a

Certified Class of Other Similarly

Situated Persons,

:

Plaintiffs

:

v.

:

:

CITY OF TENAHA DEPUTY

CITY MARSHAL BARRY

WASHINGTON, in his individual

and official capacity, et al.,

Defendants

:

: :
: Civil Action No. 2:08-cv-288-JRG Judge Gilstrap
: : : :

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF THE CLASS ACTION CONSENT DECREE, APPROVAL OF NOTICE, AND FAIRNESS HEARING

Before the Court is the Joint Motion for Preliminary Approval of the Class Action Consent Decree, Approval of Notice, and Fairness Hearing (the “Motion”) filed by Plaintiffs James Morrow, Javier Flores and William Parsons, the Court-designated class representatives, and the class certified by this Court’s Order dated August 29, 2011 (collectively, “Plaintiffs”), and Defendants (collectively, the “Settling Parties”). Whereas the Settling Parties have reached a proposed Consent Decree to settle the case, subject to approval of the Court pursuant to Federal Rule of Civil Procedure 23(e); the Court has read and considered the proposed Consent Decree signed by the Settling Parties, which sets forth the terms and conditions of the proposed settlement of the case; and the Settling Parties have consented to the entry of this Order;

The Court has decided to GRANT the Motion.

IT IS THEREFORE ORDERED THAT: 1

Case 2:08-cv-00288-JRG Document 261-5 Filed 08/06/12 Page 2 of 4 PageID #: 2255
1. This Order (the “Preliminary Approval Order”) incorporates by reference the definitions in the proposed Consent Decree, and all terms used herein have the same meanings as set forth in that Consent Decree, unless otherwise defined herein.
2. The terms of the Consent Decree are preliminarily approved. The Court finds that the Consent Decree has no obvious deficiencies, is within the bounds of a reasonable settlement, and that the amount of attorneys’ fees is within the bounds of a reasonable settlement.
3. The Court approves, as to form and content, the Notice to the Certified Class (“Notice”), attached as Exhibit 2 to the Motion.
4. Within _____ business days of the date of this Order, Defendants shall ensure that the Notice is translated in Spanish by a certified translator.
5. Within _____ business days of the date of this Order, Defendants shall ensure that the Notice (in both English and Spanish) is mailed to members of the Certified Class.
6. Within _____ business days of the date of this Order, Defendants shall prominently display the Notice (in both English and Spanish) at the Tenaha City Office, located at 122 North Center Street, Tenaha, Texas, and the Shelby County Courthouse, located at 200 San Augustin Street, Center, Texas.
7. Within _____ business days of the date of this Order, Plaintiffs shall ensure that the Notice (in both English and Spanish) is distributed to local community groups and disseminated to publications that may have an interest in the settlement of the case, and posted on the website for the American Civil Liberties Union (ACLU).
8. The Court will hold a Final Settlement Hearing (“Fairness Hearing”) on ____________, 2012 at ___________ to determine whether the terms of the Consent Decree are fair,
2

Case 2:08-cv-00288-JRG Document 261-5 Filed 08/06/12 Page 3 of 4 PageID #: 2256
reasonable, and adequate and should be approved by the Court, and to rule upon such other matters as the Court may deem appropriate. 9. Any member of the Certified Class may appear at the Fairness Hearing and show cause why the Consent Decree should not be approved as fair, reasonable, and adequate; provided, however, that no member of the Certified Class shall be entitled to contest the approval of the terms and conditions of the Consent Decree unless he or she first submits written objections in accordance with the instructions contained in the Notice. 10. Any member of the Certified Class who intends to make an appearance at the Fairness Hearing, either in person or through counsel at that person’s expense, must deliver to Plaintiffs’ Counsel and Defendants’ Counsel and file with the Court, no later than five (5) business days before the Fairness Hearing, a notice of intention to appear; a statement identifying any documents that the member of the Certified Class will seek to introduce at the Fairness Hearing and copies of the same; and the names, addresses, and phone numbers for any witnesses that the member of the Certified Class will seek to call at the Fairness Hearing. 11. Any member of the Certified Class who fails to comply with paragraphs 9 and 10 shall waive and forfeit any and all rights that he or she may have to appear separately or object, or take any appeals of the orders or judgment in this action, and shall be bound by all the terms of this Consent Decree, and any other orders of the Court, upon final approval of the Consent Decree. 12. The Court may continue or adjourn the Fairness Hearing from time to time and without further notice to the Certified Class. The Court reserves the right to approve or modify
3

Case 2:08-cv-00288-JRG Document 261-5 Filed 08/06/12 Page 4 of 4 PageID #: 2257 the Consent Decree at any time as may be consented to by the Settling Parties and without further notice to the Certified Class.
13. Without further order of the Court, the Settling Parties may agree to reasonable extensions of time to carry out any of the provisions of this Preliminary Approval Order. SO ORDERED
4

Case 2:08-cv-00288-JRG Document 261-6 Filed 08/06/12 Page 1 of 1 PageID #: 2258

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, et al. and a

Certified Class of Other Similarly

Situated Persons,

:

Plaintiffs

:

v.

:

:

CITY OF TENAHA DEPUTY

CITY MARSHAL BARRY

WASHINGTON, in his individual

and official capacity, et al.,

Defendants

:

: :
: Civil Action No. 2:08-cv-288-JRG Judge Gilstrap
: : : :

CERTIFICATE OF SERVICE
I certify that on the 6th day of August, 2012, I served copies of all the foregoing documents on all counsel of record via the Electronic Court Filing System.

/s/

Elora Mukherjee

Elora Mukherjee

Case 2:08-cv-00288-JRG Document 261-7 Filed 08/06/12 Page 1 of 2 PageID #: 2259

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, et al. and a

Certified Class of Other Similarly

Situated Persons,

:

Plaintiffs

:

v.

:

:

CITY OF TENAHA DEPUTY

CITY MARSHAL BARRY

WASHINGTON, in his individual

and official capacity, et al.,

Defendants

:

: :
: Civil Action No. 2:08-cv-288-JRG Judge Gilstrap
: : : :

CERTIFICATE OF CONFERENCE

Counsel for all parties have conferred in this matter in compliance with Local Rule CV7(h) and are in agreement that the court action requested is appropriate. The Joint Motion for Preliminary Approval of the Class Action Consent Decree, Approval of Notice, and Fairness Hearing is filed jointly and unopposed.

Dated: August 6, 2012
Counsel for Plaintiffs and Plaintiffs’ Class

Counsel for Defendants

/s/ Timothy Borne Garrigan Timothy Borne Garrigan Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963-1902 (936) 560-6020

/s/ Robert Scott Davis Robert Scott Davis Flowers Davis LLP 1021 E.S.E. Loop 323, Suite 200 Tyler, TX 75701 (903) 534-8063

Case 2:08-cv-00288-JRG Document 261-7 Filed 08/06/12 Page 2 of 2 PageID #: 2260

/s/ David Joseph Guillory David Joseph Guillory Lone Star Legal Aid—Nacogdoches 414 E Pilar Street Nacogdoches, TX 75961 (936) 560-1455
/s/ Elora Mukherjee Elora Mukherjee Sarah Hinger American Civil Liberties Union 125 Broad Street New York, NY 10004 (212) 549-2664
/s/ Stephanie Kay Stephens Stephanie Kay Stephens 119 North Street, Suite E Nacogdoches, TX 75961 (936) 559-7600

/s/ Chad Carlton Rook Chad Carlton Rook Flowers Davis LLP 1021 E.S.E. Loop 323, Suite 200 Tyler, TX 75701 (903) 534-8063
Attorneys for Defendant Shelby County
/s/ Galen Robert Alderman Galen Robert Alderman, Jr. Zeleskey Law Firm, PLLC 1616 S. Chestnut Lufkin, TX 75902 (936) 633-4209
/s/ Brent Lee Watkins Brent Lee Watkins Zeleskey Law Firm, PLLC 1616 S. Chestnut Lufkin, Texas 75902 (936) 633-4209
Attorneys for Defendant City of Tenaha
/s/ Walter Thomas Henson Walter Thomas Henson Ramey & Flock 100 E Ferguson, Suite 500 Tyler, TX 75702-0629 (903) 597-3301
Attorneys for Defendant Lynda K. Russell and the Shelby County District Attorney’s Office

 
 Case 2:08-cv-00288-JRG Document 269 Filed 02/19/13 Page 1 of 4 PageID #: 2308

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, et al. and a Certified Class of Other Similarly Situated Persons,
Plaintiffs
v.
CITY OF TENAHA DEPUTY CITY MARSHAL BARRY WASHINGTON, in his individual and official capacity, et al.,
Defendants

:

:

:

:

:

:

Civil Action No. 2:08-cv-288-JRG

:

Judge Gilstrap

:

:

:

:

:

ORDER GRANTING PRELIMINARY APPROVAL OF THE CLASS ACTION CONSENT DECREE, APPROVAL OF NOTICE,
AND FAIRNESS HEARING

Before the Court is the Joint Motion for Preliminary Approval of the Class Action Consent Decree, Approval of Notice, and Fairness Hearing (the “Motion”) filed by Plaintiffs James Morrow, Javier Flores and William Parsons, the Court-designated class representatives, and the class certified by this Court’s Order dated August 29, 2011 (collectively, “Plaintiffs”), and Defendants (collectively, the “Settling Parties”). Whereas the Settling Parties have reached a proposed Consent Decree to settle the case, subject to approval of the Court pursuant to Federal Rule of Civil Procedure 23(e); the Court has read and considered the proposed Consent Decree signed by the Settling Parties, which sets forth the terms and conditions of the proposed settlement of the case; and the Settling Parties have consented to the entry of this Order;

The Court has decided to GRANT the Motion.

1

Case 2:08-cv-00288-JRG Document 269 Filed 02/19/13 Page 2 of 4 PageID #: 2309
IT IS THEREFORE ORDERED THAT:
1. This Order (the “Preliminary Approval Order”) incorporates by reference the definitions in the proposed Consent Decree, and all terms used herein have the same meanings as set forth in that Consent Decree, unless otherwise defined herein.
2. The terms of the Consent Decree are preliminarily approved. The Court finds that the Consent Decree has no obvious deficiencies, is within the bounds of a reasonable settlement, and that the amount of attorneys’ fees is within the bounds of a reasonable settlement.
3. The Court approves, as to form and content, the Notice to the Certified Class (“Notice”), attached as Exhibit 2 to the Motion.
4. Within 10 business days of the date of this Order, Defendants shall ensure that the Notice is translated in Spanish by a certified translator.
5. Within 10 business days of the date of this Order, Defendants shall ensure that the Notice (in both English and Spanish) is mailed to members of the Certified Class.
6. Within 10 business days of the date of this Order, Defendants shall prominently display the Notice (in both English and Spanish) at the Tenaha City Office, located at 122 North Center Street, Tenaha, Texas, and the Shelby County Courthouse, located at 200 San Augustin Street, Center, Texas.
7. Within 10 business days of the date of this Order, Plaintiffs shall ensure that the Notice (in both English and Spanish) is distributed to local community groups and disseminated to publications that may have an interest in the settlement of the case, and posted on the website for the American Civil Liberties Union (ACLU).
2

Case 2:08-cv-00288-JRG Document 269 Filed 02/19/13 Page 3 of 4 PageID #: 2310
8. The Court will hold a Final Settlement Hearing (“Fairness Hearing”) on April 22, 2013 at 1:30 pm to determine whether the terms of the Consent Decree are fair, reasonable, and adequate and should be approved by the Court, and to rule upon such other matters as the Court may deem appropriate.
9. Any member of the Certified Class may appear at the Fairness Hearing and show cause why the Consent Decree should not be approved as fair, reasonable, and adequate; provided, however, that no member of the Certified Class shall be entitled to contest the approval of the terms and conditions of the Consent Decree unless he or she first submits written objections in accordance with the instructions contained in the Notice.
10. Any member of the Certified Class who intends to make an appearance at the Fairness Hearing, either in person or through counsel at that person’s expense, must deliver to Plaintiffs’ Counsel and Defendants’ Counsel and file with the Court, no later than five (5) business days before the Fairness Hearing, a notice of intention to appear; a statement identifying any documents that the member of the Certified Class will seek to introduce at the Fairness Hearing and copies of the same; and the names, addresses, and phone numbers for any witnesses that the member of the Certified Class will seek to call at the Fairness Hearing.
11. Any member of the Certified Class who fails to comply with paragraphs 9 and 10 shall waive and forfeit any and all rights that he or she may have to appear separately or object, or take any appeals of the orders or judgment in this action, and shall be bound by all the terms of this Consent Decree, and any other orders of the Court, upon final approval of the Consent Decree.
3

Case 2:08-cv-00288-JRG Document 269 Filed 02/19/13 Page 4 of 4 PageID #: 2311 12. The Court may continue or adjourn the Fairness Hearing from time to time and without
. further notice to the Certified Class. The Court reserves the right to approve or modify the Consent Decree at any time as may be consented to by the Settling Parties and without further notice to the Certified Class.
13. Without further order of the Court, the Settling Parties may agree to reasonable extensions of time to carry out any of the provisions of this Preliminary Approval Order.
SIGNED this 19th day of December, 2011. So ORDERED and SIGNED this 19th day of February, 2013.
____________________________________ RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE
4

 
 Case 2:08-cv-00288-JRG Document 1 Filed 07/24/08 Page 1 of 6 PageID #: 1

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

JAMES MORROW, and a Proposed

§

Class of Other Similarly Situated Persons, §

Plaintiffs

§

§

v.

§ CIVIL ACTION NO. 2:08cv288

§

CITY OF TENAHA DEPUTY CITY

§

MARSHAL BARRY WASHINGTON,

§ JUDGE: T. John Ward

in his Official Capacity only;

§

CITY OF TENAHA MAYOR

§

GEORGE BOWERS, in his Official

§

Capacity only;

§

SHELBY COUNTY DISTRICT

§

ATTORNEY LINDA K. RUSSELL,

§

in her Official Capacity only; and

§

SHELBY COUNTY PRECINCT 4

§

CONSTABLE RANDY WHATLEY,

§

in his Official Capacity only,

§

Defendants

§

PLAINTIFFS' ORIGINAL COMPLAINT INTRODUCTION
1.. Defendants are all local law enforcement officials in and around the city of Tenaha, Texas in Shelby County and the Mayor of Tenaha. However, they have developed an illegal practice of stopping, detaining, searching, and often seizing property from, citizens who are traveling in and through Tenaha. The Defendants undertake this practice without legal justification, in violation ofthe citizens' rights, not for any legitimate law enforcement pUIpose but to emich their offices and perhaps themselves, by seizing and converting valuable property

1

Case 2:08-cv-00288-JRG Document 1 Filed 07/24/08 Page 2 of 6 PageID #: 2

they can discover dUling the cOUlse ofthis practice. PlaintiffJames MOII'OW is one citizen victim

of this practice.

2

The Defendants' actions challenged herein are in violation of at least the 4th and

14th Amendments to the United States Constitution, made actionable 42 US.C §1983.

3

Plaintiff MOIl'Ow, on his own behalf and on behalf of a putative class of similarly

situated persons, seeks only equitable relief sufficient to remedy the practices complained of,

along with all costs ofsuit authOIized by 42 U.S.C. § 1988.

JURISDICTION

4.

This COUlt hasjUlisdiction of these disputes pUlsuant to 28 u.s.c. § 1331

PARTIES

5. Plaintiff James MOIl'Ow, is a United States citizen and a resident of Pine Bluff;

AIkansas .

6.. Defendant Barry Washington is at this time sued only in his official capacity as a City

of Tenaha Deputy MarshaL Defendant Washington lives in Panola County, Texas. He can be served

at his office at 122 N. Center St., Tenaha, Texas 75974.

7. Defendant George Bowers is at this time sued only in his official capacity as the

MayOI of the City of Tenaha. He can be served at 122 N. Center St., Tenaha, Texas 75974.

8. Defendant Linda K. Russell is at this time sued only in her official capacity as the

District Attorney of Shelby County, Texas.. She can be served at her office at 200 San Augustine

Street, Center, Texas 75935.

9.. Defendant Randy Whatley is at this time sued only in his official capacity as the

Shelby County Precinct 4 Constable. He can be served at 368 FM 2669, Tenaha, Texas 75974.

2

Case 2:08-cv-00288-JRG Document 1 Filed 07/24/08 Page 3 of 6 PageID #: 3
FACTS 10. On or about August 31, 2007, PlaintiffMoIIow was driving through I enaha, I exas, when he was stopped by Defendant Washington, who had no truthful legal justification for the stop. II Defendant Washington ordered Plaintiff MOllow to get out of his car, without any legal justification. 12 Defendant Washington sear·ched Plaintiff MOIlOW'S car, without any legal justification. 13 Defendant Whatley arIived on the scene with a dog and also searched Plaintiff's car without legal justification. 14. Defendant Washington also inteIrogated Plaintiff· MOIrow, without any legal justification. 15 Defendant Washington discovered no evidence suggesting any cIiminal activity as a result of the sear·ches and inteIrogation. 16.. Defendant Washington asked Plaintiff Morrow if he had any money and Plaintiff Morrow truthfully said he had about $3900 in his wallet. 17. Defendants Washington and Whatley then seized, without legal justification, approximately $3969 from Plaintiff MOIIOW as well as two cell phones. 18. Defendant Washington arrested Plaintiff·MoIlow, for what he claimed was "money laundeIing." Defendant Washington had no reason to believe Plaintiff·MoIIow was guilty ofmoney laundeIing.
3

Case 2:08-cv-00288-JRG Document 1 Filed 07/24/08 Page 4 of 6 PageID #: 4
19. Defendants Washingto.n and Russell to.ld Plaintiff MOIIOW they wo.uld ho.ld him pIiso.ner and prosecute him fm mo.ney laundering unless he wo.uld agree to. fOlfeit the $3969. Under this duress and these threats, Defendants Washingto.n and Russell forced PlaintiffMOlrow to. execute do.cuments memmializing the fOlfeiture, and released him, and warned him to. no.t hire a lawyer or try to. get his mo.ney back.
20.. Defendants never had reaso.n to., or really intended to., prosecute Plaintiff MOIro.w Any charges have been dismissed, "in the interest o.fjustice."
2 L It is Plaintiff's infOlmatio.n and belief that the seized mo.ney and property was intended to., and perhaps did, benefit these Defendants and the go.vernmental entities they wOlked fo.r.
22 It is Plaintiff· MOIIOW'S infOlmatio.n and belief that for the last two. years these Defendants have similarly mistr·eated o.ther perso.ns similarly situated to. Plaintiff·Mo.rro.w, and that they will co.ntinue to. do. so.. As a result, Plaintiff· MOIIOW and o.thers ar·e reaso.nably co.mpelled to. avo.id traveling in or thro.ugh I enalra, I exas.
23.. Defendants' actio.ns and o.missio.ns described abo.ve were undertaken under co.lor o.f state law, altho.ugh their actio.ns represent an abuse o.f authmity
24.. Plaintiff Mo.rro.w, and o.thers similarly situated, have suffered harm and co.ntinue to. suffer harm as a result o.fthe Defendants' actio.ns described abo.ve.
25.. Defendants' co.nductdescribed abo.ve co.nstitute vio.latio.ns o.f4th and 14th Amendment rights to. be free fiom unreaso.nable seizures.
4

Case 2:08-cv-00288-JRG Document 1 Filed 07/24/08 Page 5 of 6 PageID #: 5 RELIEF SOUGHT
26, PlaintiffMoIl'ow on his own behalfand on behalfofothers, seeks the full measme of equitable relief, including declaratory reliefand injunctive relief, to remedy the wrongs suffered and to prevent the Defendants from continuing the pmctices descIibed above,
27, Plaintiff Morrow seeks all costs of suit authorized by 42 D,Se. § 1988.,
5

Case 2:08-cv-00288-JRG Document 1 Filed 07/24/08 Page 6 of 6 PageID #: 6
Respectfully submitted, /S/ David J. GuillOIY David J GuillOIY State Bar No. 08596400 510 Ochiltree Street Nacogdoches, Texas 75961 Phone: (936) 559-9600 Fax: (936) 715-9339 Email: davidg@guillOIylaw.com
/S/ Timothy B.. Galligan Timothy Garrigan State Bar No. 07703600 Stuckey, Garrigan & Castetter P O. Box 631902 Nacogdoches, Texas 75963-1902 Phone: (936) 560-6020 Fax: (936) 560-9578 Email: tim@sgclaw.org ATTORNEYS FOR PLAINTIFF
6

Case 2:08-cv-00288-JRG Document 1-2 Filed 07/24/08 Page 1 of 1 PageID #: 7

""IS 44 (Rev. 3/99)

CIVIL COVER SHEET

The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court" 'Ibis form, approved by the Judicial Conference ofthe United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

James Morrow
(b) County ofResidence ofFirst Listed Plaintiff .=::-:-,-:=-------
(EXCEP,] IN U S PLAINTIFF CASES)

City of Tenaha Deputy City Marshal Barry Washington et a1
County of Residence of First Listed (IN U S PLAINIIFF CASES ONI Y)
NOIE: IN LAND CONDEMNAIION CASES, USE IHE LOCAIION OF IHE lAND INVOl VED

(c) Attorney's (Firm Name, Address, and Telephone Number)
Timothy B. Garrigan" Stuckey Garrigan & Castetter Law Offices POBox 631902, Nacogdoches TX 75963-1902 phone: 936-560·6020

Attorneys (If Known)

n. BASIS OF JURISDICTION (pla",,,,,"X"illOn,BoxOnly)

DIU.8. Government Plaintiff

]C3 Federal Question (U,S, Government Not a Party)

ill. CITIZENSHIP OF PRINCIPAL PARTlES(pI,,,an X"inOn,Boxfocp!.untiff

(For Diversity Cases Only)

and One Box for Defendant)

DEF

DEF

Citizen of Ibis State 0

0 1 Incorporated or Principal Place 0 4 0 4

of Business In Ihis State

o 2 U S. Government
Defendant

o 4 Diversity
(Indicate Citizenship of Parties

Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 05 of Business In Another State

in Item III)
IV. NATURE OF SUIT (Place an "X" in One Box Only)-

Citizen or Subject of a 0 3 0 3 Foreign Nation Forelgg Coun1O:::

o 6 06

CONTRACT

TORTS

FORFEnnTIUVPENALTY

BANKRUPTCY

OTHER STATUTES

0 110 Insurance

PERSONAL INJURY

0 120 Marine

0 310 Airplane

0 130 Miller Act

0 315 Airplane Product

0 140 Negotiable Instnnnent

Liability

0 150 Recovery of Overpayment 0 320 Assault Libel &

& Enforcement of Judgment

Slander

PERSONAl, INJURY 0 362 Personal Injury-
Med Malpractice 0 365 Personal Injury ~~
Product Liability 0 368 Asbestos Personal

0 610 Agriculture

0 422 Appeal 28 USC 158

0 620 Other Food & Drug

0 625 Drug Related Seizure 0 423 Withdrawal

of Property 21 USC

28 USC 157

0 630 Liquor Laws 0 640 R R & fruck

r-'
PROPERrYRIGHTS

o 400 State Reapportionment o 410 Antitrust
D 430 Banks and Banking D 450 CommercellCC Ratesletc D 460 Deportation
D 470 Racketeer Influenced and

0 151 Medicare Act

0 330 Federal Employers

0 152 Recovery ofDefaulted

Liability

Student Loans

0 340 Marine

(Excl Veterans)

0 345 Marine Product

0 153 Recovery of Overpayment

Liability

of Veteran's Benefits 0 350 Motor Vehicle

Injury Product

0 650 Airline Regs.

Liability

0 660 Occupational

PERSONAL PROPERlY

o 370 Other Fraud

0

-. D 371 Truth in Lending

SafetylHealth 690 Other

D 380 Other Personal

LABOR

0 820 Copyrights 0 830 Patent 0 840 Trademark
SOCIAL SECURITY

Corrupt Organizations D 810 Selective Service
o 850 Securities/Commoditiesl
Exchan~e
D 875 Customer-Challenge
12 USC 3410

0 160 Stockholders·' Suits 0 190 Other Contract

0 355 Motor, Vehicle Product I iability

Property Damage 0 385 Property Damage

0

0 t 95 Contract Product Liability 0 360 Other Personal Injury

Product Liability

0

REAL PROPERTY 0 210 Land Condemnation

CIVIL RIGHTS 0 441 Voting

PRISONER PETITIONS 0
0 510 Motions to Vacate

710 Fair Labor Standards 0

Act

0

720 LaborlMgmt Relations 0

0

730 Labor/Mgmt.Reporting 0

& Disclosure Act

861 IDA (1395fi) 862 Black Lung (923) 863 DIWClDIWW (405(g)) 864 SSID Title XVI
865 RSI (405(g))

D 891 Agricultural Acts D 892 Economic Stabilization Act D 893 Environmental Matters
o 894 Energy Allocation Act
D 895 Freedom of lnfonnation Act

0 220 Foreclosure

442 Employment

Sentence

0 740 Railway Labor Act

FEDERAL TAX SUITS D 900 Appeal of F'ee Determination

0 230 Rent Lease & Ejectment 0 443 Housing!

0 240 Torts to Land

Accommodations

0 245 IortProductLiability 0 444 Welfare

0 290 All Other Real Property ~ 440 Other Civil Rights

Habeas Corpus: 0 530 General
0 535 Death Penalty 0 540 Mandamus & Other

0

790 Other Labor Litigation

D 870 Iaxes (U S Plaintiff or Defendant)

Ox 791 EmpJ Ret Inc

x 871 IRS---lbird Party

Under Equal Access to
Justice
o 950 Constitutionality of
State Statutes
D 890 Other Statutory Actions

._--

0 550 Civil Rights 0 555 Prison Condition

Security Act

26 USC 7609

v. ORIGIN

(PLACE AN "X" IN ONE BOX om Y)

I ransferred from

Appeal to DIStrict

x 1 Original o 2 Removed from o 3 Remanded from

o

4 Reinstated or 0 5

another district (specify)

o D 6 Multidistrict

7

Judge from Magistrate

Proceeding

State Court

Appellate Court

Reopened

Litigation

Judgment

l! V CAUSE OF ACTION (Cite the S: C.ivi~ S~tute under which yo~ are.filing and write briefstatement of cause

l

Do not cite Jtmsdicbonal statutes unless diversity)

Due process lawsuit for violations of the 4tb and 14th Amendments to the United States Constitution

VII. REQUESTED IN D CHECK IF THIS IS A CLASS ACTION

COMPJ.AINT·

UNDER F.R.C,P. 23

VTII. RELATED CASE(S)

(See instructions):

IFANY

DEMAND $ none specified

CHECK YES only if demanded in complaint:

JURy DEMAND:

DYes 0 No

DOCKET NUMBER

DATE
7-1....4- Oe,

FOR OFFICE USE ONLY

RECEIPI # _ _ _ __ AMOUN _ _ _ _ __

APPl Y1NG IFF _ _ _ _ __

JUDGE _ _ _ _ __ MAG JUDGE _ _ _ _ _ _ __

 
 Case 2:08-cv-00288-JRG Document 354 Filed 12/13/18 Page 1 of 7 PageID #: 3420

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, ET AL., Plaintiffs,
v.
CITY OF TENAHA DEPUTY CITY MARSHALL, ET AL.,
Defendants.

§ § § § § Civil Action No. 2:08-cv-288 § § JUDGE: RODNEY GILSTRAP §

JOINT MOTION FOR APPROVAL OF THE SETTLEMENT AGREEMENT ON ADDITIONAL DURATION OF CONSENT DECREE AND APPROVAL
OF CLASS NOTICE.

TO THE HONORABLE JUDGE OF SAID COURT: This Joint Motion for Approval of the Settlement Agreement on Additional
Duration of Consent Decree and Approval of Notice is respectfully filed, through counsel, by Plaintiffs and Defendants.
I. As the Court is well aware, the parties previously negotiated and agreed to a Consent Decree (Doc. 261, 261-1 through -7), which was approved and ordered by the Court on August 8, 2013 (Doc. 278, 278-1). Subsequently, on August 7, 2017, Plaintiffs sought an extension of the duration of the Decree (Doc. 315). On November 1, 2018, a hearing was held regarding the Plaintiffs’ requested extension and the Defendants’ opposition to same. The parties have negotiated since the time of the hearing and have now agreed to a proposed Settlement Agreement on Additional Duration of Consent Decree (a copy of which is attached as Exhibit “1"). Contained within the proposed

Joint Motion for Approval of the Settlement Agreement on Additional Duration of Consent Decree and Approval of Class Notice

Page 1 of 7

Case 2:08-cv-00288-JRG Document 354 Filed 12/13/18 Page 2 of 7 PageID #: 3421

Settlement Agreement are only two disputed terms (more fully described in Section
III. I. 5. and Section VI. C. of the Settlement Agreement on Additional Duration
of Consent Decree, attached hereto) and a separate issue that the parties seek
assistance of the Court to resolve (as noted on page 27, footnote of Settlement
Agreement on Additional Duration of Consent Decree).
II.
The parties respectfully request that the Court:
(a) Determine whether it is likely that the Court will be able to approve of the proposed Settlement Agreement on Additional Duration of Consent Decree (attached hereto as Exhibit “1") as provided in Rule 23(e)(1), F. R. C. P., and if so to approve the Notice to the Certified Class about the proposed Settlement Agreement (attached as Exhibit “2") and the method of notifying the class of the proposed Settlement Agreement, as also provided the Rule;
(b) Scheduling a hearing on this Joint Motion, if the Court deems it appropriate;1
(c) Set a schedule for the Fairness Hearing as provided in Rule 23(e)(2), F. R. C. P., and any other appropriate date(s); and,
(d) After the Fairness Hearing, grant final approval to the proposed Settlement Agreement on Additional Duration of Consent Decree, Approval of Notice, and Fairness Hearing as provided in Rule 23(e)(2).
III.
The purposes animating the Additional Duration on Consent Decree sought include
efficiency, avoiding uncertainty, ending alleged racial profiling (including any alleged
incentives and alleged practices that may result in alleged racial profiling), and concluding
the litigation. The additional duration provides Plaintiffs and the Certified Class with

1 There are a minimum number of disputed issues which the parties have or will brief, but counsel

would of course be willing to participate in any hearing set by the Court.

Joint Motion for Approval of the Settlement Agreement on

Additional Duration of Consent Decree and Approval of Class Notice

Page 2 of 7

Case 2:08-cv-00288-JRG Document 354 Filed 12/13/18 Page 3 of 7 PageID #: 3422

an opportunity for complete injunctive relief and to achieve the purposes of the original Decree and confers significant benefits on the Plaintiffs and the Certified Class. The additional duration also benefits Defendants by requiring accurate records of traffic stops that will readily contradict any false accusations that an officer abused his or her authority or violated constitutional rights.
IV. Pursuant to Rule 23(e)(3), the parties hereby notify the Court that, other than as stated in the Settlement Agreement on Additional Duration of Consent Decree, there are no agreements requiring disclosure that were “made in connection with the propos[ed] [settlement].” See FED. R. CIV. P. 23(e)(3).
V. The proposed notice form (the “Notice”) is attached as Exhibit 2. The Notice contains information about the proposed settlement, a description of the Certified Class, instructions on how to obtain further information about the Consent Decree, and procedures for objecting and appearing at the fairness hearing. The Notice (in both English and Spanish) will be prominently displayed at the Tenaha City Office, located at 122 North Center Street, Tenaha, Texas, and the Shelby County Courthouse, located at 200 San Augustine Street, Center, Texas. In addition, the Notice will be digitally posted on the websites for the American Civil Liberties Union (ACLU) and the National Association for the Advancement of Colored People (“NAACP”). The Court has complete discretion in determining what constitutes reasonable

Joint Motion for Approval of the Settlement Agreement on Additional Duration of Consent Decree and Approval of Class Notice

Page 3 of 7

Case 2:08-cv-00288-JRG Document 354 Filed 12/13/18 Page 4 of 7 PageID #: 3423
notice of a class settlement under Rule 23(e), in form as well as method, particularly in a Rule 23(b)(2) class. Fowler v. Birmingham News Co., 608 F.2d 1055, 1059 (5th Cir. 1979); 7B FED. PRAC. & PROC. CIV. § 1797.6 (2009). “A class settlement notice need only properly identify the plaintiff class and generally describe the terms of the settlement so as to alert members ‘with adverse viewpoints to investigate and to come forward and be heard.” DeHoyos v. Allstate Corp., 240 F.R.D. 269, 298 (W.D. Tex. 2007) (citation omitted).
Here, the proposed notice procedures involve prominently displaying the Notice at the Tenaha City Office and the Shelby County Courthouse; and posting it on the ACLU’s and NAACP’s websites. These notification procedures are specifically tailored to provide notice to members of the Class in a reasonable manner.
VI. The Court should determine whether it is likely that the Court will be able to approve of the proposed Settlement Agreement, approve the form and method of notice, and schedule appropriate dates for a fairness hearing and other proceedings necessary to give final approval to the Settlement Agreement on Additional Duration of Consent Decree.

Joint Motion for Approval of the Settlement Agreement on Additional Duration of Consent Decree and Approval of Class Notice

Page 4 of 7

Case 2:08-cv-00288-JRG Document 354 Filed 12/13/18 Page 5 of 7 PageID #: 3424
Respectfully submitted,
FLOWERS DAVIS, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701 (903) 534-8063 (903) 534-1650 Facsimile
CHAD C. ROOK State Bar No. 17227750 ccr@flowersdavis.com
ROBERT S. DAVIS State Bar No. 05544200 rsd@flowersdavis.com Lead Attorney
ATTORNEYS FOR DEFENDANT, SHELBY COUNTY
ALDERMAN CAIN & NEILL PLLC 122 East Lufkin Avenue Lufkin, Texas 75901-2805 Telephone: (936) 632-2259 Facsimile: (936) 632-3316
/s/ Erika L. Neill ERIKA L. NEILL State Bar No. 24070037 Email: eneill@acnlaw.com
ATTORNEY FOR DEFENDANT, CITY OF TENAHA

Joint Motion for Approval of the Settlement Agreement on Additional Duration of Consent Decree and Approval of Class Notice

Page 5 of 7

Case 2:08-cv-00288-JRG Document 354 Filed 12/13/18 Page 6 of 7 PageID #: 3425
STUCKEY & GARRIGAN LAW OFFICES, PLLC
2803 North St., Suite C Nacogdoches, Texas 75965 Telephone: (936) 560-6020 Facsimile: (936) 560-9578
/s/ Timothy B. Garrigan TIMOTHY B. GARRIGAN State Bar No. 07703600 Email: tim2@sgclaw.org
TIMOTHY DAVID CRAIG State Bar No. 24045716 Email: tim@sgclaw.org
ELORA MUKHERJEE American Civil Liberties Union 125 Broad Street New York, NY 10004 212.549.2664
ATTORNEYS FOR PLAINTIFFS
SHELBY COUNTY DISTRICT ATTORNEY’S OFFICE 200 San Augustine, Ste. 12 Center, TX 75935 936.598.2489 936.598.4106 (fax)
/s/ Stephen Shires STEPHEN SHIRES State Bar No. 50511894 Email: stephen.shires@co.shelby.tx.us
ATTORNEYS FOR DEFENDANT, SHELBY COUNTY DISTRICT ATTORNEY’S OFFICE

Joint Motion for Approval of the Settlement Agreement on Additional Duration of Consent Decree and Approval of Class Notice

Page 6 of 7

Case 2:08-cv-00288-JRG Document 354 Filed 12/13/18 Page 7 of 7 PageID #: 3426
CERTIFICATE OF SERVICE I hereby certify that the above and foregoing instrument was served upon all counsel of record in the above entitled and numbered cause on December 13, 2018, in the following manner:
X Via ECF
CHAD C. ROOK

Joint Motion for Approval of the Settlement Agreement on Additional Duration of Consent Decree and Approval of Class Notice

Page 7 of 7

Case 2:08-cv-00288-JRG Document 354-1 Filed 12/13/18 Page 1 of 29 PageID #: 3427

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

JAMES MORROW, STEPHEN

§

STUART WATSON, AMANEE

§

BUSBY, YUSELFF DISMUKES,

§

LINDA DORMAN, MARVIN

§

PEARSON, JENNIFER BOATWRIGHT,§

RONALD HENDERSON, JAVIER

§

FLORES, WILLIAM PARSONS and §

a Certified Class of Other Similarly

§

Situated Persons,

§

Plaintiffs

§

§

vs.

§

§

CITY OF TENAHA DEPUTY CITY §

MARSHALL, BARRY WASHINGTON, §

In his Individual and Official Capacity; §

CITY OF TENAHA MAYOR GEORGE §

BOWERS, In his Individual and

§

Official Capacity; SHELBY COUNTY §

DISTRICT ATTORNEY LINDA KAY §

RUSSELL, In her Individual and

§

Official Capacity; SHELBY COUNTY §

DISTRICT ATTORNEY

§

INVESTIGATOR DANNY GREEN, §

In his Individual Capacity only; and §

SHELBY COUNTY PRECINCT 4

§

CONSTABLE RANDY WHATLEY, §

In his Individual and Official Capacity, §

Defendants

CIVIL ACTION NO. 2:08-cv-288 JUDGE: RODNEY GILSTRAP

SETTLEMENT AGREEMENT ON ADDITIONAL DURATION OF CONSENT DECREE

I. Introduction

A. Description of the case

Plaintiffs filed this case in 2008 to challenge the Defendants’ alleged illegal “stop and seize” practice of targeting, stopping, detaining, searching, and often seizing property

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Case 2:08-cv-00288-JRG Document 354-1 Filed 12/13/18 Page 2 of 29 PageID #: 3428
from individuals who are, or appear to be, members of a racial or ethnic minority and their passengers. (Class Certification Opinion and Order, Dkt. 233, p. 2.) The evidence demonstrates that this “interdiction program” began in 2006, and Plaintiffs allege that it is ongoing. (Id. at 3.) According to Plaintiffs, Defendants targeted members of the proposed class for traffic stops because of their race or ethnicity and then subjected them to detention, arrest, or search and seizure without legal justification and in violation of their constitutional rights. (Id.) Plaintiffs further allege that Defendants instituted the interdiction program, not for legitimate law enforcement purposes, but in order to enrich their offices and themselves by seizing and converting cash and other valuable personal property they could find during the course of the illegal stop and seize practice. (Id.)
The Defendants deny these allegations and deny that they violated the constitutional rights of the named Plaintiffs or the class as a whole.
Plaintiffs initially sought class treatment of Fourth Amendment search and seizure claims, Fourteenth Amendment Equal Protection claims, and claims for monetary relief. The Court only certified the plaintiff class for Fourteenth Amendment Equal Protection claims for injunctive and declaratory relief. (Id. at 57.) The Defendants sought a discretionary interlocutory appeal of the class certification pursuant to Federal Rule of Civil Procedure 23(f) which was denied, and then denied again when the Defendants asked the Fifth Circuit Court of Appeals to rehear the request. The parties then negotiated and agreed to a Consent Decree (Doc. 261-1 through -7) which was approved and ordered by the Court on August 8, 2013 (Doc. 278, 278-1).
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On August 7, 2017, Plaintiffs filed an Opposed Motion to Extend Duration of Decree. (Doc. 315). A hearing on Plaintiffs Motion was initially set on September 25, 2018, and was continued until November 1, 2018. Since the hearing on November 1, 2018, the parties negotiated and agreed to this proposed Settlement Agreement On Additional Duration of Consent Decree, which includes two disputed issues for the Court’s determination. The first issue is the term of the additional duration of the Decree. While the parties are in agreement that an additional term of duration is appropriate, Plaintiffs propose the additional term be for not less than 2 years and the Defendants propose a twelve-month term. The proposed language of the parties is denoted in the section addressing duration, Section VI. C. The second issue is language proposed by the City of Tenaha to address the use of revenues from forfeitures. The City’s proposed language is set forth in the section addressing use of revenues from forfeitures, Section III. I. 5. Plaintiffs propose the language of said section remain unchanged from the original Consent Decree (Doc. 278-1). The parties are in agreement not to object to additional briefing on these remaining issues, not to exceed 10 pages and to be filed by any party not later than December 13, 2018.
B. Parties: 1. The Plaintiffs are James Morrow, Javier Flores and William Parsons, the Court designated class representatives, and the certified class as defined below in Sections I.E and I.F. 2. The originally named Defendants include: the City of Tenaha Deputy City Marshal Barry Washington, in his individual and official capacities (who has since resigned from office); the City of Tenaha Mayor George Bowers, in his official capacity only (who is the former mayor); the Shelby County 3

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District Attorney Lynda K. Russell, in her individual and official capacities (who has since resigned from office); the Shelby County District Attorney Investigator Danny Green, in his individual and official capacities (who has since retired); and the Shelby County Precinct 4 Constable Randy Whatley, in his individual and official capacities (who has since resigned from office). 3. The parties agree to realign the defendants as follows: Shelby County will be bound as a Defendant via the current County Judge Allison Harbison, or her successor, in her official capacity; the City of Tenaha is bound as a Defendant via its current Mayor Michael Baker, or his successor, in his official capacity; and the Shelby County District Attorney’s Office is bound as a Defendant via Shelby County current District Attorney Stephen Shires, or his successor, in his official capacity. Original Defendant Russell resigned from the Shelby County District Attorney’s Office on July 19, 2011 effective December 31, 2011. As of the date the parties sign this Settlement Agreement on Additional Duration of Consent Decree and submit it to the Court for approval, Stephen Shires serves as Shelby County, Texas, District Attorney. Shires is a Defendant in his official capacity on behalf of the Shelby County District Attorney’s Office only to the extent permitted by the Texas Constitution and Texas law. 4. For purposes of this Consent Decree, the term “Defendants” shall include the aforementioned Defendants, their successors, employees, agents, and/or contractors. Where this Consent Decree uses the terms officer or officers, such terms refer to certified law enforcement officers employed
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by, contracted by, or otherwise working on behalf of Defendants to conduct traffic stops. 5. Defendants Washington, Green, and Whatley remain defendants in their individual capacities solely for purpose of Section VI.F of this Decree. C. Plaintiffs’ claims: Plaintiffs claim that Defendants’ conduct violates Plaintiffs’ Fourteenth Amendment rights to equal protection and due process. (Dkt. 233, p. 2-3.) Plaintiffs seek classwide declaratory and injunctive relief. (Id. at 3.) D. Defendants’ claims: Defendants deny the allegations made by the Plaintiffs, both individually and as a Class. Defendants settle this case without an admission of liability and to avoid the further time and expense associated with protracted litigation of this nature
E. Certified Class: The parties acknowledge that by Order dated August 29, 2011, the Court certified the plaintiff class pursuant to Federal Rule of Civil Procedure 23(b)(2), to include: 1. People who are, or appear to be, members of racial or ethnic minority groups and those in their company, and 2. Were, or will be, traveling in, through, or near Tenaha at any time after November 1, 2006, and 3. Were, or are, subject to being stopped by one or more Defendant for an alleged traffic violation.
F. The Court limited the claims for class treatment to whether the Defendants’ interdiction program targeted apparent non-Caucasians for traffic enforcement in violation of the Equal Protection Clause of the Fourteenth Amendment, and
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limited the available relief to injunctive and declaratory relief. (Dkt. 233, p. 4243.) G. Mutual recognition of principles All parties to this Settlement Agreement on Additional Duration of Consent Decree recognize the need for (1) diligent law enforcement, (2) the proper use and implementation of legitimate police practices, and (3) compliance with the requirements and mandates of the Equal Protection clause of the Fourteenth Amendment.
II. Purpose of Consent Decree A. Efficiency: The parties’ agreement to this Consent Decree provides efficiencies
for the parties and the Court. The parties avoid the considerable costs and efforts of pretrial preparations, trial presentations, and possible appeals. The Court avoids expending considerable effort to resolve all of the disputes associated with the parties’ efforts and the difficult task of determining liability and possibly formulating injunctive relief that would grant the plaintiff class relief balanced with the governmental interests claimed by the Defendants. B. Avoiding uncertainty: The parties avoid the uncertainty of trial and any subsequent appeals. With this Consent Decree, the parties have greater input and control over the settlement than would be possible with court-ordered injunctive relief resulting from trial. C. Ending alleged racial profiling: The parties seek to prohibit alleged racial profiling that allegedly violates the Equal Protection Clause of the Fourteenth Amendment. The parties agree that the Defendants will prohibit any alleged
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incentives and alleged practices that may result in alleged racial profiling, in a manner that can be verified by the parties, the Monitor, and the Court. D. Concluding litigation: The parties seek to resolve all remaining issues in this class action by entry of this enforceable Consent Decree.
In furtherance of these purposes, the parties have agreed to the following binding and enforceable prescriptions, which shall be enforced by this Court, and are hereby ORDERED:
III. Provisions Regarding Traffic Stops and Practices Incident to Traffic Stops:
A. Impartial policing policy: On the date this Order is entered, the Defendants will implement written policies and practices, requiring that the Defendants comply with all federal and state laws, rules, and regulations relating to alleged racial profiling and the prohibition of alleged racial profiling to ensure that traffic stops, searches, and seizures are not conducted on the basis of the apparent race or ethnic origin of the suspect, except where the law permits race or ethnic origin to be considered in determining whether a person shall be stopped (e.g., where a suspect has been described by his or her race). These policies shall include the information in the model set forth in Appendix A to this Consent Decree.
B. Provisions for traffic stops: 1. Definition: A traffic stop occurs whenever an officer observes a reason to initiate the stop of a vehicle based on an alleged violation of traffic laws or any other violation alleged to have been observed by the officer conducting the stop, and continues until the person stopped is free to leave 7

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or, if arrested, until the person is presented to a jail for booking. 2. “Person” or “persons,” as used in this Consent Decree, refers to the drivers
and passengers subject to traffic stops by an officer. Any traffic stop that does not strictly comport with all applicable state and federal laws and the provisions of this Consent Decree is prohibited. Any evidence gathered as a result of a non-compliant stop, made after the entry of this Consent Decree, shall be presumptively inadmissible as evidence in any court or other proceeding adverse to the person stopped. If such evidence is submitted, it must be accompanied by an explanation of this provision. In considering whether to admit evidence from a non- compliant stop, the relevant tribunal may consider the facts surrounding the noncompliant nature of the traffic stop in determining whether the evidence should be admitted. Among the factors considered are the fact and purposes of this provision, whether the non-compliance could have been avoided, and whether the officer took immediate steps to correct the situation or repair the malfunction. 3. Equipment required: All vehicles used by Defendants to conduct traffic stops shall be equipped with appropriate video and audio recording devices that have pre-event features and other capabilities necessary to make the recordings required by this Consent Decree. 4. Audio and video recording requirements: All traffic stops conducted by Defendants shall be mechanically recorded by both video and audio recordings, including: the use of the pre-event capabilities to capture the reason for the stop, and record the location, time, date, speed, the identity
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of the officer(s) and agency operating the vehicle, and any radar readings pertinent to the stop. The recordings shall also capture any canine sniffs, searches, seizures, detentions, and to the extent reasonable, arrests, resulting from a traffic stop. All oral communication and interaction with the person being stopped must be captured in the recordings. If a stop results in an arrest, the recordings shall continue until the subject is transported inside the jail. During the stop, the officer shall contemporaneously orally state on the recording his or her reason for the stop, the basis for any suspicion of any other criminal activity or probable cause to believe an offense has been or is being committed, including the offense suspected, and any reason to believe any currency or property constitutes contraband or that there is probable cause for a seizure. The recordings must not be obscured by conducting matters outside of the range of the recording device(s) or in any other avoidable manner. If the officer has made a good faith attempt to comply with this provision, and the audio and video recordings are obscured or impaired due to unforeseeable and unavoidable events, the officer shall document in writing the reason for the failure to record all relevant events. All video and audio recordings shall be preserved unedited and in their native format, or in some other form that can be readily authenticated as valid and unaltered, until this case is dismissed. 5. Documentation required, including profiling information: An officer shall prepare a report under his or her name and badge number that complies with Texas Code of Criminal Procedure Article 2.133 and this Consent
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Decree. This written documentation shall be preserved unedited, or in some other form that can be readily authenticated as valid and unaltered, until this case is dismissed. Whenever an officer documents the race or ethnicity of a person in accordance with this Consent Decree, he or she must do so on the basis of the officer’s perception of the person’s race or ethnicity to the best of the officer’s ability. 6. Reporting of traffic stops: All traffic stops shall be orally reported on the mechanical recordings before the officer makes contact with the driver, except in emergency situations. Except in emergency situations, the officer’s report on the mechanical recordings shall include the identity of the officer, the location of and reason for the stop, and a description of the vehicle including its license number. 7. Pretext stops prohibited: All pretextual stops are prohibited. 8. Duration of stop: A stop must be no longer than necessary to accomplish the purpose of the stop, presumptively 15 minutes or less for a traffic violation punishable by issuance of a traffic ticket. For other situations, such as a driver possibly impaired by alcohol or drugs, the presumptive 15 minute time limit need not apply. C. Provisions for detentions incident to traffic stops 1. Reporting detentions: All detentions resulting from traffic stops shall be orally reported on the mechanical recordings, along with the officer’s claimed reason(s) for the detention, as soon as reasonably possible after the initiation of the detention(s). The term “reasonably possible” is meant
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to take into account the surrounding circumstances at the time and should take into account officer, suspect and public safety. 2. Any detention resulting from a traffic stop must be properly documented according to Texas Code of Criminal Procedure Article 2.133 and this Consent Decree. D. Provisions for canine sniffs incident to traffic stops 1. The Defendants to this Consent Decree will stipulate that they currently do not utilize canines for any aspect of traffic stops. 2. Definition: The term “canine sniff” means any situation in which a canine is called upon to smell the area of a vehicle or person for the purpose of detecting contraband as the result of a traffic stop. 3. Requires reasonable suspicion of criminal activity: A canine sniff shall only be initiated when it is supported by reasonable suspicion that a crime has been or is in the process of being committed. 4. Reporting canine sniffs: At the time the officer requests a “canine sniff,” he or she shall orally report the request, and basis for the request on the mechanical recordings. 5. Explanation for person: Before the initiation of any canine sniff, an officer shall provide written notice to the person whose property or person will be subject to the sniff. This written notice shall be in both English and Spanish and substantially similar to the model set forth in Appendix B to this Consent Decree.
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Case 2:08-cv-00288-JRG Document 354-1 Filed 12/13/18 Page 12 of 29 PageID #: 3438 6. Audio and video recording requirements: Any canine sniff shall be mechanically recorded as required by this Consent Decree and any applicable state and federal law. 7. Documentation required: For any traffic stop in which a canine sniff is conducted, the officer conducting the stop shall make a written report, including: the name, identification number, and agency of the dog handler; identification information for the canine; a description of the circumstances that prompted the canine sniff; whether any alerts were made by the canine; whether the proximity of the canine sniff was physically searched and whether any contraband was located; a thorough narrative description of the use of the canine, including, if an alert was given, a detailed description of where and how the alert was given, how many times the canine circled the vehicle or other property or person searched, how long it took for the canine to alert, and whether the canine exhibited any behaviors inconsistent with its training or otherwise unusual. These reports shall be preserved unedited, or in some other form that can be readily authenticated as valid and unaltered, in a Canine Performance Log kept by the pertinent agency and retained until this case is dismissed. The Canine Performance Log shall also include records of any complaints about the canines used for sniffs and the responses to those complaints; these records shall be preserved until this case is dismissed.
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8. Certification and training requirements: a. All canines used in canine sniffs shall meet Scientific Working Group on Dog and Orthogonal Detector Guidelines (“SWGDOG”) certification guidelines before being utilized in any canine sniff. All canine handlers must be certified in accordance with SWGDOG guidelines prior to participating in a canine sniff. Training shall be required for all officers and canines in accordance with SWGDOG guidelines and the requirements set forth in this Consent Decree. The SWGDOG guidelines referred to in this Consent Decree are available at www.swgdog.org and included in Appendix C to this Consent Decree. b. The Defendants shall conduct an annual review of the utilized certification and training guidelines and update their guidelines in accordance with industry standards, provided that those standards do not fall below the standards set out for the protection of individuals in the SWGDOG guidelines. Defendants conducting canine sniffs shall annually certify their review, including a description of any updates, to the Court and other parties during the duration of the Consent Decree.
9. Performance records for canine handlers: Any Defendant(s) using a canine shall document, monitor and investigate all complaints regarding the use of canines by that agency. Such Defendant shall produce a quarterly performance report, compiling information from written reports 13

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and mechanical recordings and complaints, to the designated officer with final decision-making authority over the use of canines. Such Defendant shall provide copies of these reports to the Monitor on a quarterly basis during the duration of the Consent Decree. 10. Certification of compliance: On the date this Order is entered, the Defendants will certify to the Court that they are not using canines for any aspect of traffic stops. Each Defendant’s certification will constitute that Defendant’s compliance with all the canine-related provisions of this Consent Decree. Should any Defendant seek to use a canine for any aspect of traffic stops, that Defendant shall first notify the Monitor and Plaintiffs’ Counsel. E. Provisions for searches incident to traffic stops 1. Reporting searches and request for back-up: Before any officer conducts a search resulting from a traffic stop, the officer will orally report the event and his or her intention to search on the mechanical recordings. The officer will also request back-up officers, if available, to the scene to observe any search resulting from a traffic stop. This will also be captured on the mechanical recordings 2. For all consent searches, officers must first orally and in writing advise a person of his or her right to refuse consent to search and obtain written consent for that search using a Consent to Search form. That Consent to Search form shall be in both English and Spanish and substantially similar to the model provided in Appendix D to this Consent Decree.
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3. Audio and video recording requirements: Any search resulting from a traffic stop and the basis therefor shall be mechanically recorded, as required by Section III.B.5. If a search is allegedly based on consent, the officer’s request to search and the person’s consent to the same must be captured on the mechanical recording required by Section III.B.5 and in writing. The consent recorded under this section shall include: (a) a statement that the person subject to search fully understands that he or she may refuse to give the officer consent to search; (b) a statement that the person subject to search is freely and voluntarily giving the officer consent to search; and, (c) a statement that the person subject to search may withdraw the consent at any time during the search.
4. Any search incident to a traffic stop must be documented consistent with Texas Code of Criminal Procedure Article 2.133 and this Consent Decree.
5. Duration: No search shall prolong the detention any longer than necessary to effectuate the search based on the reasons for the search.
6. Responsibility for damage: The responsible Defendant(s) shall pay a person for the full costs and expenses of any property damage that may result from a search as required by state law. This provision shall not apply to any damage reasonably caused during a search that results in the discovery of contraband. The responsible Defendant(s) shall pay or reimburse the costs and expenses resulting from a search within thirty (30) days of receipt of written notice and reasonable substantiation of such damage. If a Defendant contests that the damage was the result of a search, the Monitor shall be the final arbiter of disputes under this 15

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provision, utilizing a preponderance of the evidence standard. All persons subject to a search will be provided with written notice of this provision at the time of the search. That written notice shall be in both English and Spanish and substantially similar to the model provided in Appendix E to this Consent Decree. F. Provisions for seizures incident to a traffic stop 1. “Property” refers to any tangible thing, including currency or other monetary instrument. No property shall be seized unless the seizing officer advises the person of the basis for believing the property is subject to seizure. Prior to seizing any property, an officer must orally report the intended seizure on the mechanical recordings. 2. Audio and video recording requirements: Any seizure shall be mechanically recorded, as required by Section III.B.5. 3. Any seizure must also be documented in accordance with Texas Code of Criminal Procedure Article 2.133 and this Consent Decree. If a safety issue prevents an officer from reciting the basis for a seizure, the officer shall promptly, and as soon as reasonably possible, provide a detailed written narrative description of the search which resulted in the seizure, the safety concern that prevented an oral recitation of why the officer thought that seizure was legal, and a description of the property seized. 4. Before an officer seizes any property during a traffic stop, the officer must provide written notice to the person subject to seizure of his or her rights and the procedures for return of the seized property. The written notice shall be in both English and Spanish and substantially similar to the model
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provided in Appendix F to this Consent Decree. 5. Documentation required: Any Defendant(s) seizing property or in control
of seized property shall keep and maintain full and complete records of any property seized, including the officer(s) who seized the property; the name of the person from whom the property was seized; a description of the property seized, including the exact kinds, quantities, and forms of the property; if the property is deposited in an interest-bearing account, the location of the account and the amount of interest; the judicial order or statute allowing the disposal of the property; to whom the property was delivered; and the state and manner of the destruction or disposition of the property, if any. 6. Provide inventory: For all traffic stops that result in the seizure of any property, the officer must record the exact location from which the assets were obtained; a description of the property, including the exact kinds, quantities, and forms of the property. Upon the seizure of property, the officer shall supply the person with an inventory of all property seized. 7. Safekeeping: Safe storage of all seized property shall be governed by Texas Code of Criminal Procedure Article 59. 8. Return of Property: If a determination is made that seizure is improper, the Defendant(s) in possession of the property shall return to a person all property seized within thirty business days. G. Provisions for arrests incident to traffic stops 1. Back-up: Before any arrest incident to a traffic stop, to the extent possible, the officer shall orally report the intent to arrest and request
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back-up, if back-up is available, on the mechanical recordings. 2. Audio and video recording requirements: To the extent reasonably
possible, any arrest resulting from a traffic stop shall be mechanically recorded as required by Section III.B.5. 3. Documentation required, including profiling information: For any arrest resulting from a traffic stop, the officer must record all information as required by Texas Code of Criminal Procedure Article 2.133 and this Consent Decree. All records of arrests shall be preserved unedited and in their native format, or in some other form that can be readily authenticated as valid and unaltered, until this case is dismissed. 4. Miranda rights: If Miranda rights are required in a specific situation by federal law, the recitation of his or her Miranda rights shall be mechanically recorded as required by Section III.B.5. H. Provisions for forfeitures incident to traffic stops: 1. A sworn statement shall be made by the seizing officer as required by Texas Code of Criminal Procedure Article 59.03, including stating with particularity which provisions of the Penal Code are violated. 2. No person with an interest in any asset subject to a forfeiture proceeding can be requested to waive formal service of the forfeiture action or compromise his or her interest in such an asset until after a response to formal service is due, unless the person is being represented by counsel regarding the matter. 3. In addition to the requirements of CCP Art. 59.03(d), an officer shall not induce or accept a person’s waiver, in any form, of interest in seized
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property unless the person is represented by counsel in the matter or until the person has had a meaningful opportunity to seek counsel and more than thirty (30) days have passed after the due date for a response to the properly served notice of forfeiture. 4. No unrepresented defendant may sign an agreed judgment in any asset forfeiture case until at least thirty days after service. 5. No unrepresented defendant may waive service or any interest in any asset forfeiture case in exchange for an agreement not to prosecute a criminal matter unless represented by counsel or the waiver occurs in the presence of a judicial officer. I. Provisions for use of forfeited property seized incident to a traffic stop: 1. The Defendants will strictly abide by Texas Code of Criminal Procedure Article 59.06. 2. Defendant(s) in receipt of asset forfeiture revenue incident to a traffic stop agrees to track such revenue and donations. 3. The Shelby County Auditor shall confirm Shelby County’s and its District Attorney’s compliance with Texas Code of Criminal Procedure Article 59.06. Before expenditure of any forfeiture revenue incident to traffic stops, the Auditor shall confirm whether such expenditure is compliant with Texas Code of Criminal Procedure 59.06. If the Auditor determines that an expenditure is not compliant with the Texas Code of Criminal Procedure, the Auditor shall notify the Shelby County Commissioner’s Court and the Monitor.
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4. The Tenaha City Council, before the expenditure of any forfeiture revenue incident to traffic stops, shall confirm compliance of such expenditure with Texas Code of Criminal Procedure 59.06.
5. All asset forfeiture revenue incident to traffic stops, including any such revenue presently existing in any Defendants’ asset forfeiture account, shall be (1) donated to non-profit organizations that provide mental health, drug, or rehabilitations services, or services for victims or witnesses of criminal offenses, in accordance with Texas Code of Criminal Procedure Article 59.06; or (2) used for the audio and video equipment necessary to comply with this Consent Decree and/or to pay the costs of law enforcement training to meet the educational requirements of this Consent Decree. Defendants and/or Plaintiffs’ Counsel may suggest recipient organizations for donations under this provision. The Monitor shall approve each recipient organization before any donations are made. [Defendant City of Tenaha’s Proposed Language] 5. All asset forfeiture revenue incident to traffic stops shall be spent in accordance with Texas Code of Criminal Procedure Article 59.06, with such expenditures being subject to the approval of the Monitor.
J. Training: Defendants’ officers shall undergo 4 hours of agreed upon/appropriate training within ninety (90) days of the entry of this Consent Decree and 4 hours of training per calendar year. The training shall cover compliance with racial profiling laws, search and seizure law, and provisions set forth in this Consent Decree.
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K. Internal review procedures: Within sixty (60) days of the entry of this Consent Decree, each Defendant shall establish and enforce policies and procedures governing quarterly supervisory review of traffic stops including (1) a review of all records made in accordance with Texas Code of Criminal Procedure Article 2.134; (2) a review of all written and mechanical records of stops involving searches, seizures, or arrests to determine whether they state legal grounds for a stop and actions incident to a stop; (3) review of relevant data to determine whether there are impermissible racial disparities in stops; and (4) use of canine forms and data, if any, and other relevant data or documentation. These reviews and audits shall be made available to the Monitor, who shall provide copies of such reviews and audits to the Plaintiffs’ attorneys. The purpose of these procedures shall be to ensure compliance with the terms of this Consent Decree and all other pertinent constitutional and state legal standards.
IV. Monitoring and Compliance A. Monitor: John Malcolm Bales was appointed Monitor pursuant to this Court’s
order of November 7, 2018. (Doc 350) B. Defendants’ duty of disclosure: During the term of the Additional Duration of
Consent Decree, each Defendant shall quarterly make available to the Monitor all written documentation required by Texas Code of Criminal Procedure Articles 2.133, 2.134, 59.03, and 59.06, and this Consent Decree. Each Defendant also shall quarterly make available to the Monitor all unedited audio, video, and written records of any traffic stops as requested by the Monitor. Each Defendant shall provide the Monitor with any other relevant and necessary information, data analysis, and documents within thirty days of receiving a written request from the
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Monitor for the same. C. Monitor’s duties: The Monitor shall, at a minimum, review a random sample of
ten percent of all stops in a given month, or ten stops, whichever is greater, unless there are fewer than ten stops in which case all stops will be reviewed. The Monitor shall review all searches and seizures that result from traffic stops in a given month to assess each Defendant’s compliance with this Consent Decree and the Fourteenth Amendment; these reviews will be credited toward the ten percent, or ten stop, minimum review requirement. The Monitor may review the records generated in compliance with Texas Code of Criminal Procedure Articles 2.133, 2.134, 59.03, and 59.06, and this Consent Decree. The Monitor may conduct an independent analysis and review of vehicular stops resulting in searches, seizures or arrests as a basis for the Monitor’s Report and Recommendations. The Monitor shall provide a quarterly Report and Recommendation to the Court during the term of this Consent Decree. The Monitor shall have the authority to recommend to the parties and to the Court practices, policies and other measures that are appropriate or necessary to ensure that each Defendant’s stop, search, and seizure practices and policies are in compliance with this Consent Decree, the Fourteenth Amendment, and Articles 2 and 59 of the Texas Code of Criminal Procedure. The Monitor shall bring to the attention of the Court any policies, practices, and other measures necessary for each Defendant’s compliance with this Consent Decree only after the Monitor first brings such policies, practices, and other measures to the attention of each Defendant pursuant to Section IV.D of this Consent Decree. The Monitor shall review any Complaints (as defined by Section 614.021 of the Texas Code of Criminal Procedure) or reports of non-
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compliance, investigate the same, and report the Monitor’s findings of noncompliance, if any, to the Court. D. Filing of and Responses to Monitor’s reports: The Monitor will circulate preliminary drafts of each Quarterly Report and Recommendations among the parties as soon as practical and not later than 21 days after the conclusion of the period covered by the report. The parties shall then have ten (10) days, to review and confer regarding any aspect of the draft Report and Recommendations, and to provide comments regarding same to the Monitor. Within seven (7) days after the deadline for any comments from the parties the Monitor will consider any comments, confer with the pertinent party or parties as appropriate, and file his final draft of the Report and Recommendations. If there are any extensions or delays in these deadlines the reasons therefore will be included in the report submitted to the Court. Following the Monitor’s submission of each final draft of a quarterly Report and Recommendation to the Court, the parties shall have an additional thirty (30) days to provide comments, including formal objections, if any, to the Court on that Report and Recommendation. E. Benchmarks: In determining whether the Defendants are in compliance with constitutional standards with respect to stop, search, and seizure policies and practices, the Monitor and the Court may consider among other factors, (1) the number and nature of stops, searches, and seizures that do not comply with constitutional standards under the Fourteenth Amendment; (2) all information regarding the reasons provided for stops, searches, and seizures, the resultant hit rates (i.e., the rate at which stops, searches, and seizures result in the identification of contraband) and arrest data; and (3) racial disparities in stops, searches, and
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seizures. Non-compliance under the Fourteenth Amendment may be found where the evidence proves that there are substantial racial disparities in stops, searches, and/or seizures that are not explained by non-racial factors for such disparities, including but not limited to crime rates, suspect-descriptions that have been relied on for stops, police deployment patterns, racial percentages of the underlying population or other non-racial factors. V. Fees and Costs A. The Defendants shall be responsible for reasonable costs and fees of the Monitor. Each Defendant shall be responsible for the costs attributable to that Defendant. The Monitor will not bill twice for the same work. B. The Defendants shall pay counsel fees and costs to the Plaintiffs’ attorneys as previously agreed to by the parties. VI. Miscellaneous A. The parties jointly agree to defend the certification of this class and this Consent Decree against collateral attack in this case and in any appeal taken from this case. The parties further jointly agree that the certification of this class in this specific case is not admissible for any purpose in any other litigation. B. All parties agree to exercise their best efforts and to take all reasonable steps necessary to effectuate the Consent Decree. C. DEFENDANTS’ PROPOSED LANGUAGE: This Consent Decree shall remain in effect for twelve (12) months from the date of entry of the Order entering said Decree; however, upon motion of a Party or request of the Monitor, the Court may extend or shorten the twelve-month period. In connection therewith, the Court shall conduct a status
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Case 2:08-cv-00288-JRG Document 354-1 Filed 12/13/18 Page 25 of 29 PageID #: 3451
conference on ______ to address the status of this case and the Monitor’s reports. PLAINTIFFS’ PROPOSED LANGUAGE: The term of the additional duration of the Consent Decree shall be not less than two years from the date of entry of the Court’s entry of this agreement. However, upon motion of a party the Court may extend or shorten the two year term. Also within 30 days after the filing of the fourth Quarterly Report and Recommendation required during the additional term of the duration of this Consent Decree, the parties shall file a joint status report, and/or motion for status conference with the Court. The purpose of the report or conference, will be to advise the Court regarding perceived compliance, or problems with compliance. This provision does not prevent the parties or Monitor from otherwise reporting any perceived problems to the Court, if appropriate. D. Reports and recommendations of the Monitor and any Orders of the Court shall be filed of public record with the Court. All filings will redact personal information of any law enforcement officers and any persons subject to stops, searches, and seizures in this proceeding and the parties agree to keep information regarding the identities of the officers or persons stopped, searched, or subject to seizures in this proceeding confidential, unless the Court orders otherwise or unless otherwise required by the Texas Open Meetings and Records Act or the Federal Freedom of Information Act.
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Case 2:08-cv-00288-JRG Document 354-1 Filed 12/13/18 Page 26 of 29 PageID #: 3452
E. This Consent Decree may not be introduced as evidence for any purpose in any
other proceeding other than the enforcement of the Consent Decree.
F. The defendants originally sued in their individual capacities—namely Barry
Washington, Lynda K. Russell, Danny Green, and Randy Whatley—shall each
provide a copy of the original Consent Decree to any and all future employers
for whom they may carry out law enforcement duties during the term of this
Consent Decree.
G. Any notice, request, instruction, or other document to be given under this
Consent Decree by any Party or by the Monitor to the Plaintiffs shall be in writing
and delivered personally or sent registered or certified mail, postage prepaid, or
email to the Parties as follows:
To: Class Counsel and Plaintiffs or class members:
Timothy Borne Garrigan Class Counsel tim@sgclaw.org tim2@sgclaw.org Stuckey & Garrigan Law Offices PLLC 2803 North Street PO Box 631902 Nacogdoches, TX 75963-1902
Nusrat Jahan Choudhury Class Counsel nchoudhury@aclu.org American Civil Liberties Union 125 Broad Street New York, NY 10004
To: City of Tenaha: Erika L. Neill ALDERMAN CAIN & NEILL PLLC 122 East Lufkin Avenue Lufkin, Texas 75901-2805 eneill@acnlaw.com
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Case 2:08-cv-00288-JRG Document 354-1 Filed 12/13/18 Page 27 of 29 PageID #: 3453
Telephone: (936) 632-2259 Facsimile: (936) 632-3316
To: Shelby County: Chad C. Rook ccr@flowersdavis.com Robert S. Davis rsd@flowersdavis.com FLOWERS DAVIS, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701 Telephone: (903) 534-8063 Facsimile: (903) 534-1650
To: Shelby County District Attorney Stephen Shires stephen.shire@co.shelby.tx.us 200 San Augustine Street, Suite 12 Center, Texas 75935
H. 1To further serve the purposes of this Decree, the Shelby County Commissioner’s
Court has entered into an interlocal agreement with Shelby County Precinct
Constables Zack Warr (Pct. 1), Shad Sparks (Pct. 2), Billy Hearnsberger (Pct. 3)
and Stanley Burgay (Pct. 5), and their offices. The Plaintiffs have not made any
allegations of racial profiling or other allegations of improper conduct against
these non-parties or any of their employees. Section VI.H is the only section of
this Consent Decree that is applicable to the aforementioned non-parties or any of
their employees. In the interest of resolving this litigation, saving the Shelby
County Tax Payers additional costs and fees, and instilling confidence in law
enforcement among the general public, these elected officials have agreed to enter
into the interlocal agreement. The Parties to this litigation thank these public
officials for their cooperation. The interlocal agreement will provide that these
1 The Shelby County Defendants dispute the inclusion of the entire provision regarding an interlocal agreement, but they and the Plaintiffs anticipate approaching the Court to explore a resolution of this dispute.
27

Case 2:08-cv-00288-JRG Document 354-1 Filed 12/13/18 Page 28 of 29 PageID #: 3454 elected officials and their offices will: 1. Adopt an Impartial Policing Policy that includes a written Consent to Search form; 2. Use mechanical recording equipment for traffic stops and maintain the recordings of such stops for four years; 3. Comply with Art. 2.133 of the Texas Code of Criminal Procedure and Chapter 59 of the Texas Code of Criminal Procedure; 4. Affirmatively state that they are not presently utilizing a canine for vehicle searches and provide the Shelby County Commissioner’s Court with 90 days’ notice if they intend to start using such a canine; 5. Attend training furnished by Shelby County on search and seizure and forfeitures that the County has agreed to furnish pursuant to Section III. J of this Decree; 6. Allow the Monitor appointed under this Decree to review the documents and mechanical recordings of all traffic stops.
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Case 2:08-cv-00288-JRG Document 354-1 Filed 12/13/18 Page 29 of 29 PageID #: 3455

Dated: December 13, 2018
Counsel for Plaintiffs and Plaintiffs’ Class
/s/ Timothy Borne Garrigan Timothy Borne Garrigan Stuckey & Garrigan Law Offices PLLC 2803 North Street PO Box 631902 Nacogdoches, TX 75963-1902 (936) 560-6020 tim@sgclaw.org tim2@sgclaw.org
/s/ David Joseph Guillory David Joseph Guillory Lone Star Legal Aid—Nacogdoches 414 E Pilar Street Nacogdoches, TX 75961 (936) 560-1455
/s/ Nusrat Jahan Choudhury American Civil Liberties Union 125 Broad Street New York, NY 10004 (212) 549-2664 nchoudhury@aclu.org
/s/ Stephanie Kay Stephens Stephanie Kay Stephens 119 North Street, Suite E Nacogdoches, TX 75961 (936) 559-7600

Counsel for Defendants
/s/ Robert Scott Davis Robert Scott Davis Flowers Davis LLP 1021 E.S.E. Loop 323, Suite 200 Tyler, TX 75701 (903) 534-8063 rsd@flowersdavis.com
/s/ Chad Carlton Rook Chad Carlton Rook Flowers Davis LLP 1021 E.S.E. Loop 323, Suite 200 Tyler, TX 75701 (903) 534-8063 ccr@flowersdavis.com
Attorneys for Defendant Shelby County
/s/ Erika L. Neill Erika L. Neill State Bar No. 24070037 ALDERMAN CAIN & NEILL PLLC 122 East Lufkin Avenue Lufkin, Texas 75901-2805 Telephone: (936) 632-2259 Facsimile: (936) 632-3316 eneill@acnlaw.com
Attorney for Defendant City of Tenaha
/s/ Walter Thomas Henson Walter Thomas Henson Ramey & Flock 100 E Ferguson, Suite 500 Tyler, TX 75702-0629 (903) 597-3301
Attorneys for Defendant Lynda K. Russell and the Shelby County District Attorney’s Office

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Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 1 of 28 PageID #: 3456 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 1 of 28 PagelD #: 2220
Appendix A

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 2 of 28 PageID #: 3457 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 2 of 28 PagelD #: 2221

Policy for Addressing Racially Biased Policing and the Perceptions Thereof 1

Purpose:

This policy is intended to reaffirm this department's commitment to unbiased policing, to clarify the circumstances in which officers can consider race/ethnicity when making law enforcement decisions, and to reinforce procedures that serve to assure the public that we are providing service and enforcing laws in an equitable way.

Policy: A) Policing Impartially

I. Investigative detentions, traffic stops, arrests, searches, and property seizures by officers will be based on a standard of reasonable suspicion or probable cause in accordance with the Fourth Amendment of the U.S. Constitution . Officers must be able to articulate specific facts and circumstances that support reasonable suspicion or probable cause for investigative detentions, traffic stops, arrests, nonconsensual searches, and property seizures. Except as provided below, officers shall not consider race/ethnicity in establishing either reasonable suspicion or probable cause. Similarly, except as provided below, officers shall not consider race/ethnicity in deciding to initiate even those nonconsensual encounters that do not amount to legal detentions or to request consent to search.
Officers may take into account the reported race or ethnicity of a specific suspect or suspects based on trustworthy, locally relevant information that links a person or persons of a specific race/ethnicity to a particular unlawful incident(s). Race/ethnicity can never be used as the sole basis for probable cause or reasonable suspicion.
2. Except as provided above, race/ethnicity shall not be motivating factors in making law enforcement decisions.

8) Preventing Perceptions of Biased Policing

In an effort to prevent inappropriate perceptions of biased law enforcement, each officer shall do the following when conducting pedestrian and vehicle stops:

• Be courteous and professional.
• Introduce him- or herself to the citizen (providing name and agency affiliation), and state the reason for the stop as soon as practical, unless providing this information will compromise officer

1 Source: Lorie Fridell, et al., Police Executive Research Forum, Racially Biased Policing: A Principled Response 51-53 (200 I).

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or public safety. In vehicle stops, the officer shall provide this information before asking the driver for his or her license and registration . • Ensure that the detention is no longer than necessary to take appropriate action for the known or suspected offense , and that the citizen understands the purpose of reasonable delays . • Answer any questions the citizen may have, including explaining options for traffic citation disposition , if relevant. • Provide his or her name and badge number when requested , in writing or on a business card. • Apologize and/or explain if he or she determines that the reasonable suspicion was unfounded (e.g., after an investigatory stop) .
Compliance : -
Violations of this policy shall result in disciplinary action as set forth in the department's rules and regulations .
Supervision and Accountability:
Supervisors shall ensure that all personnel in their command are familiar with the content of this policy and are operating in compliance with it.

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Appendix B

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NOTICE OF USE OF A POLICE DOG
A police officer has determined that there is reason to conduct a "canine sniff," during which a dog will be permitted to sniff the perimeter of your person, your vehicle, and/or your property to detect contraband. A police officer may only initiate this canine sniff if he or she has reasonable suspicion to believe that a crime has been committed or is in the process of being committed.
A VISO SOBRE EL USO DE PERROS POLI CIA
Un oficial de policia ha determinado que hay raz6n para realizar un "olfateo por canino adiestrado," durante el cual se le permitira a un perro oler alrededor del perimetro de su persona, su vehfculo, y/o sus bienes para detectar contrabando. Un oficial de policia solo puede iniciar este "olfateo por canino adiestrado" si el o ella tiene una sospecha razonable de que un delito se ha cometido o esta en proceso de cometerse.

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 6 of 28 PageID #: 3461 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 6 of 28 PagelD #: 2225
Appendix C

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 7 of 28 PageID #: 3462 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 7 of 28 PagelD #: 2226
SWGDOG SC2 - GENERAL GUIDELINES
Posted for public comment 12/16/06-2/16/06. Approved by the membership 4/2/2006. 151 - Revision - Posted for Public Comment 6/24/09- 8/22/09. Approved by the membership
9/15/2009. Statement of Purpose: To establish consensus-based best practice general guidelines for training, certification, and documentation pertaining to all canine disciplines. Discipline specific guidelines are fotmd within the corresponding subcommittee documents.
1. INITIAL TRAINING
1.1. The handler training shall be conducted by a competent trainer from an entity that utilizes a structured curriculum with specific training and learning objectives.
1.2. The canine training shall be conducted by a competent canine trainer from an entity that utilizes a structured cuniculum with specific training and learning objectives.
1.3. Initial training shall include sufficient obedience training to ensure the canine will operate effectively based on mission requirements.
1.4. The canine shall be trained to perform an effective and controlled search.
1.5, The initial training of the canine shall include training of a determined specific final response (active or passive alert).
1.6. Initial training shall include exposing the canine team to a variety oflocations, expected situations and searches.
1.7. The training shall be structured to meet the typical mission requirements of the canine team's department/organization.
1.8. The canine team's training shall be continued to achieve a level of operational proficiency until certification evaluation.
2. CANINE TEAM ASSESSMENTS 2.1. Assessments are part of certification, maintenance training and proficiency testing. 2.2. Each assessment is the evaluation of a search. 2.3. The canine team shall be assessed in the following ways: 2. 3.1. Odor recognition assessment. 2.3.1.1. The handler shall be advised of the parameters of the search.
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2.3.1.2. The handler may know the number of target objects, but not the placement.
2.3.1.3. The evaluating official shall know the desired outcome of the search. 2. 3.2. Comprehensive assessment (single-blind assessment).
2.3.2.1. The handler shall be advised of the parameters of the search, yet shall not know the desired outcome .
2.3.2.2. The handler shall not know the number or placement of the target objects .
2.3.2.3. The evaluating official shall know the desired outcome of the search. 2.3.2.4 . The assessments shall include a blank search. 2. 3.3. Double-blind assessment. 2.3.3 .1. The handler shall be advised of the parameters of the search . 2.3.3.2. No participant or observer present at the assessment location(s) shall be
aware of the desired outcome of the search. 2.3.3 .3. The assessments may include a blank search.
2.4. Each assessment will address the following areas : 2. 4.1. Demonstration of the canine' s ability to perform a systematic search. 2. 4.2. Demonstration of the handler's control of the canine dming the execution of a systematic search. 2. 4.3. Demonstration of the handler's ability to accurately interpret the canine's changes in behaviors associated with odor detection and identification. 2. 4.4. Demonstration of the handler's ability to determine whether or not the canine has made a final response. 2. 4.5. In a double blind assessment it may not be possible to include all of the handler and canine assessment areas listed above.
3. CANINE TEAM CERTIFICATION
3.1. Certification for the named canine team shall be valid for one year . 3.1.1. Ce1tification does not relieve the canine team from regular maintenance training, periodic proficiency assessments, and following other recommended SWGDOG guidelines. 3.1.2. The ce1tifying official(s) shall not be routinely involved in the day to day training of the canine team being evaluated . 3.1.3. For successful certification, the canine team shall achieve at least a 90 % positive alert rate, unless otherwise dictated by the specific discipline, combined with a false alert rate as identified by the sub-disciplines (distinct objects search versus continuous area search). Positive and false alerts are defined and calculated as follows: 3.1.3.1. A positive alert is defined as the trained detection alert in the presence of the target odor. The rate is calculated as the number of positive ale1ts divided by the number of available targets. For example, if the certification has ten target odors and the canine team identifies nine
odors, it will have achieved a 90 % positive alert rate.
2

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3.1.3.2. A false alert is defined as an alert in the absence of the target odor. This is determined in one of 2 ways and shall be defined before the evaluation, depending upon the nature of the detection task involved in the certification (distinct objects search versus continuous area search): 3.1.3.2.1. In sub-disciplines in which ce1tification involves searching a defined number of distinct objects (i.e., pieces of luggage, odor recognition cans, scent boxes, parcels, persons, vehicles) the false alert rate is calculated as the number of false alerts divided by the number of non-target objects, not to exceed 10 %. For example, if the certification test involves searching a set of 24 pieces ofluggage in which 4 pieces contain targets and 20 are non-target objects, and the canine team exhibits one false alert on a non-target piece of luggage, then the team's false alert rate is calculated as 1/20, or 5 %. 3.1.3.2.2. In sub-disciplines in which certification primarily involves searching continuous areas (i.e., warehouses, vehicle lots, aircraft, buildings) the number of distinct search objects within the continuous search area is immeasurable. The number of false alerts should not exceed one per continuous searchable area as defined by the specific discipline (refer to SC8 and SC9 documents).
3.1.4. Handler en·ors, when excessive may result in failure of the team. 3.1.5. A mission oriented test environment shall be used.

3.2. Certification shall consist of a number of assessments that together form the full test. 3 .2.1. Each assessment is the evaluation of a search. 3.2.2. Aids and/or targets used in the day to day training activities of the team being
certified should not be used in the certification process.
3.2.3. The certification shall be comprised of a comprehensive assessment together with either an odor recognition assessment or a double-blind assessment, or both.

3 .3. A canine team that fails the certification process shall complete a corrective action plan

before making another attempt to certify.

·

4. MAINTENANCE TRAINING
4.1. The canine team shall conduct regular objective-oriented training sufficient to maintain and enhance operational proficiency. Maintenance training shall include the following: 4.1.1. Correcting identified deficiencies or operational concerns. 4.1.2. A variety of search locations, location sizes and environmental conditions. 4.1.3. Varied duration of search times. 4.1.4. Varied times of day/night. 4.1.5. A variety ofblank searches. 4.1.6. A variety of distractions in the search area. 4.1. 7. A variety of set times. 4.1.8. A variety of target odors, amounts, number of targets and different sources of targets where applicable.
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4.1.9. A variety of methods of conceahnent.
4.2. Training conducted solely by the handler to maintain the canine's proficiency is acceptable, but should be periodically combined with supervised training. 4.2.1. Supervised training, by a qualified trainer/instructor, is recommended in order to monitor and improve performance, identify and correct training deficiencies, and perform proficiency assessments.
4.3. A canine team shall complete a minimum of sixteen (16) hours of training per month to maintain and improve the proficiency level of the team.
4.4. The canine team shall undergo periodic proficiency assessments as outlined in section 2 of the Canine Team Assessments. These assessments should include a variety of odor recognition assessments, comprehensive assessments and/or doub~~-bl~d assessments.
5. RECORD KEEPING AND DOCUMENT MANAGEMENT
5.1. The handler/department/organization shall document training, certification, proficiency assessments and discipline-related deployment data. 5.1.1. Training and proficiency assessment records may be combined or maintained separately. 5.1.2. Discipline-related deployment records shall be maintained separately from training, certification and proficiency assessment records. 5.1.3. Training and discipline-related records should be standardized within the department/organization.
5.2. Training records may include, but are not limited to, the following data: 5.2.1. Name of handler and canine. 5.2.2. Name(s) of individual(s) conducting/assisting training. 5.2.3. Time and date training took place. 5.2.4. Location and environmental conditions. 5.2.5. Training design (non-blind, single-blind or double-blind). 5.2.6. Description and number of target(s). 5.2.7. Location of target(s). 5.2.8. Set time. 5.2.9. Size of search area. 5.2.10. Length of session. 5.2.11. Search results. 5.2.12. Deficiencies and corrective measures implemented. 5.2.13. Other information required by department/organization.
5.3. Certification records shall be maintained by the certifying authority and the handler, and include the following information: 5.3.1. Name of canine and handler. 5.3.2. Date team certified.
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5.3.3. Certification authority, i.e., agency, professional organization, and/or individual(s).
5.3.4. The standard or guideline under which the canine team is certified. 5.3.5. Name of individual(s) awarding certification. 5.3.6. Search area types included in certification assessment. 5.3.7. Type and amount of materials included in certification assessment. 5.3.8. Location of certification. 5.3.9. Set time.
5.4. Proficiency assessment records maintained by the handler/department/organization may include, but are not limited to, the following data: 5.4.1. Name of handler and canine. 5.4.2. Name(s) of individual(s) conducting assessment. 5.4.3. Time and date assessment took place. 5.4.4. Location and environmental conditions. 5.4.5. Assessment design (single-blind or double-blind). 5.4.6. Search area types included in the proficiency assessment. 5.4.7. Type(s) and ammmt(s) of material included in the proficiency assessment. 5.4.8. Set time. 5.4.9. Size of search ru·ea. 5.4.10. Proficiency assessment results. 5.4.11. Other information required by department/organization.
5.5. Supervisory review of all records is recommended.
5.6. Digital format is recommended to facilitate compiling and analyzing data.
5.7. Records may be discoverable in court proceedings and may become evidence of the canine team's reliability. Record retention policy shall be determined by department/organization guidelines.
5.8. Training records are necessary to illustrate the type and amount of training that the team has experienced before and after certification.
5.9. Confirmed operational outcomes can be used as a factor in determining capability.
5.10. Unconfirmed operational outcomes shall not be used as a factor in detennining capability in that they do not correctly evaluate a canine team's proficiency, i.e., residual odor can be present or concealment may preclude discovery.
5.11. Training Aid Records 5.11.1. Training aids shall be cleru·lylabeled in a manner to support accountability. 5.11.2. Appropriate records shall be maintained by the handler/department/organization in accordance with federal/state/local requirements.
5.12. Veterinary Records
5

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5.12.1. Veterinary records shall be maintained in a manner such as they are accessible to the handler/department/organization.
5.12.2. Vaccinations required by state or local law should be documented in the veterinary record of the canine.
6

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SWGDOG SC8- SUBSTANCE DETECTOR DOGS
Narcotics Section
Posted for Public Comment 5/10/07 - 7/8/07. Approved by the membership 8/15/2007.
Statement of purpose: To provide recommended guidelines for training, certification and documentation pertaining to narcotic detector canines.
1. Initial Training
1.1. Training shall be conducted by a competent, qualified narcotic detector canine trainer from an entity which utilizes a structured curriculum with specific training and learning objectives. ...
1.2. The narcotic detection training course shall include training the canine to detect marijuana, cocaine, heroin, methamphetamine and other substances as required to meet the mission, regional and operational deployment needs.
1.3. Training shall include varying quantities (typically varying by factors often) of the substances listed in 1.2.
1.4. Training shall include exposing the canine to a variety of different types of searches and locations.
1.5. The initial training should continue until the narcotic detection canine team is certified or deemed not certifiable.
1.6. Initial training shall represent all conditions that could be encountered during a certification process.
2. Canine/Handler Team Certification
2.1. Parameters of test 2.1.1. The narcotic detector canine shall be tested on the substance odors for which it is trained. 2.1.2. All odors for which the dog will be certified must be tested. 2.1.3. The test shall be designed to resemble normal operational searches by using vehicles, buildings, parcels, luggage, etc. to conceal substances. 2.1.4. Certification testing shall be conducted with no less than 5 grams of the actual substance to be detected. 2.1.5. The test shall include a variety of searches designed to evaluate the canine's ability to recognize the odor, respond to the odor and the handler's ability to recognize this response. 2.1.6. The test shall include scenarios resembling searches within the normal operational environment and include at least 3 different searches (see categories below) designed to evaluate the canine's ability to recognize
1

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the odor, respond to the odor and the handler's ability to recognize this response. Not all odors will necessarily be in each type of search and some search areas shall contain no odors (blanks). Types of searches and suggested maximum search times are listed below: 2.1.6.1. Parcels searches with 2-6 articles per odor should take 1 minute
to search 2-6 parcels. 2.1.6.2. Baggage searches with 2-6 articles per odor should take 1
minute to search 2-6 bags. 2.1 .6.3. Person/crowd searches: as permitted by state and federal law,
with 2 persons per odor should take 1 minute per person. 2.1.6.4. Building/room searcres (the room may contain zero to three
aids depending upon the size and environmental conditions. Rooms that are 18.6-111.5 m2 (200-1200 sq. ft.) with furniture should talce 1.5 minute per 9.3 012/ 28 m3 (100 scfft./1000 cu. ft.). 2.1.6.5. Motor vehicle searches including interiors and exteriors (3-6 vehicles per search using passenger cars and trucks, 3 minutes per vehicle). 2.1.6.6. Open area/perimeter searches of93 - 930 m2 (1,000-10,000 sq. ft.) per search, should take 1-3 minutes per 93 m2 (1000 sq. ft.). 2.1.7. The dog/handler team must demonstrate the ability to detect all trained odors. 2.1.8. For successful certification, the canine/handler team shall achieve at least a 90% confirmed alert rate for certification, and a false alert rate not to exceed 10%, as defined and calculated in SC 2. 2.1.9. Excessive handler errors, as defined by the certifying authority, shall result in failure of the team. 2.1.10. Disqualification due to time should be left to the cliscretion of the certifying authority. The test should end if the certifying authority determines that the dog'handler team is no longer working (e.g., Observable behaviors to be added in final annotated version).
2.2. Use of distracters 2.2.1. Natural distracters are normally present in the testing area. 2.2.2. Placement of clistracters in the certification area is required when no natural distracters are present. 2.2. 3. Care must be taken not to place artificial clistractions in a manner that causes contamination of the test substance odor.
2.3. Proofin!ifV erification of certification area should be conducted prior to the actual certification using a certified canine team who is not participating in the
certification. This practice is designed to show that the trained odor is present in
the target locations and nowhere else, including the blank areas.
2.4. Certification should not be conducted in areas in which narcotics detection canine teams have recently trained or certified.
2

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2.5. Certification for narcotic detection dogs should be comprised of a comprehensive assessment, which includes elements of odor recognition as outlined in SWGDOG General Guidelines. 2.5.1. Odor recognition assessment 2.5.1.1. The handler shall be advised of the parameters of the search. 2.5 .1.2. The handler shall know the number of target objects, but not the placement. 2.5.1.3. The evaluating official shall lmow the desired outcome of the search. 2.5.2. Comprehensive assessment 2.5.2.1. The handler shall be advised of the parameters of the search, yet shall not know the desired outcome. 2.5.2:Z.- The handler shall not know the number or placement of the target objects. 2.5.2 .3. The evaluating official shall know the desired outcome of the search. 2.5.2.4. The assessments shall include a blank search. 2.5.3. Double-blind assessment . 2.5.3.1. No participant or observer present at the assessment location(s) shall be aware of the parameters of the search.
3. Maintenance Training
3.1. The canine team shall conduct regular objective-oriented training sufficient to maintain operational proficiency on all trained odors .
3.2. Training is meant to sustain and enhance the performance of the handler, canine and the canine team.
3.3. In training, situations are purposely sought where the capabilities of the canine team is challenged within the operational environments for which the team may be deployed.
3.4. Teams shall be challenged to improve and enhance their abilities.
3. 5. Training shall include: 3.5.1. A variety oflocations. 3.5.2. A variety of training material amounts (no less than 1 gram). 3.5.3. A variety of heights, depths, containers and distraction odors. 3.5.4. Various types of searches (e.g., vehicles , building, parcels, luggage, blank areas and persons depending on local, state and federal law). 3.5.5. A varied duration of set times. 3.5.6. Varied duration of search times .
3

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 16 of 28 PageID #: 3471 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 16 of 28 PagelD #: 2235
3.6. The canine team shall spend an average of 4 hours per week in routine training to maintain the proficiency level of the team
3.7. Routine training, conducted by the handler to maintain the dog's proficiency and to reinforce odor recognition, is an acceptable f01m of training but shall be combined with supervised training on a regular basis. Supervised Training is conducted by a qualified trainer other than the handler, in order to improve performance , identify and correct training deficiencies. Performing proficiency assessments is considered a best practice.
4. Training Materials
4.1. The training materials slnll be packaged in a manner safe for the canine throughout training.
4.2. The training materials shall be maintained in a manner to avoid loss or destruction
4.3. Materials shall be stored in a manner that prevents odor contamination or physical contamination, i.e., the materials smll be stored in separate labeled containers.
4.4. Training materials smll be obtained from a reliable and documented source such as the DEA lab.
4.5. Required security procedures pertaining to the training materials smll be followed according to local, state and federal laws.
4.6. Required substance registrations smll be cun·ent and accurate records maintained.
4.7. Training materials smll be replaced every 1-3 years, sooner if contaminated or compromised.
4.8. Disposal/destmction of the training aids shall follow local, state and federal guidelines.
5. Documentation
5.1. The handler, department and organization shall maintain training records, certification records, proficiency assessments and seizure records.
5.2. Deployment/utilization records may be kept in accordance with agency policy.
4

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 17 of 28 PageID #: 3472
Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 17 of 28 PagelD #: 2236
5.3. Records shall contain discipline-related specifics.
5.4. Records shall be standardized within the department, agency and/or organization.
5.5. Documents smll be retained in accordance with state and federal and unit guidelines. Records shall contain but are not limited to the following: 5.5.1. Training records kept by the randier and/or the department shall contain the following information: 5.5.1.1. Date training held. 5.5.1.2. Name of individual conducting training. 5.5.1.3. Type and amount of training aid used. 5.5.1.4. Length of training session 5.5.1.5. Location of training. 5.5.1.6. Type of training (e.g., vehicle, luggage, building, open area). 5.5.1.7. Number of searches and results. 5.5.1.8. Name of canine and handler. 5.5.2. Seizure records kept by the handler shall include: 5.5.2.1. Date of seizure. 5.5.2.2. Location of seizure. 5.5.2.3. Length of search 5.5.2.4. Description of activity. 5.5.2.5. Results of search 5.5.2.6. Name of canine and handler. 5.5.2.7. Non-productive responses (i.e., dog alerts with no detectable or seizable amounts of narcotics). 5.5.2.8. Seizure substance type. 5.5.2.8.1. Narcotics. 5.5.2.8.2. Currency. 5.5.2.8.3. Currency non-seizures. 5.5.2.9. Other information as required by the organization and/or agency. 5.5.3. Certification records kept by the certifying authority and handler shall include the following infmmation. 5.5.3.1. Date team was certified 5.5.3.2. Certification authority i.e., agency or professional organization. 5.5.3.3. Name of certified individual. 5.5.3.4. Type of materials. 5.5.3.5. Location of certification 5.5.3.6. Name of canine and handler.
5.6. Deployment/utilization/seizure information shall be kept separate from training and testing information
5.7. Supervisory review is recommended.
5

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5.8. Digital format is recommended to facilitate compiling and analyzing data. 6. Use of records/documentation
6.1. Reliability of the canine team shall be based upon the results of certification and proficiency assessments.
6.2. Training records do not necessarily reflect reliability of the team. 6.3. Training records are necessary to illustrate the type and amount of training that
the team has experienced before and after certification. 6.4. Confirmed operational outcomes may be used to determine capability. 6.5. Unconfirmed operational outcomes shall not be used to determine capability in
that they do not correctly evaluate a canine team's proficiency.
6

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 19 of 28 PageID #: 3474 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 19 of 28 PagelD # : 2238
Appendix D

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 20 of 28 PageID #: 3475 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 20 of 28 PagelD #: 2239

NOTICE OF RIGHTS - CONSENT SEARCH
If an officer asks for your permission to conduct a search during a traffic stop:
• YOU HA VE THE RIGHT TO REFUSE A SEARCH.
• If you allow an officer to search your vehicle, your property, or yourself, you may withdraw your consent to the search at any time.
• If you give your consent today, it cannot be used to conduct a search at a later time. • If you agree to a search of your vehicle and/or property, the [insert agency name] is
required to pay you for the costs to repair any damage caused by the search if the search does not result in the seizure of contraband. In order to receive compensation, you must provide written notice of any damage to the [insert agency name] at [insert address to send notice].

I,

, have received notice of my rights and

I CONSENT TO A SEARCH.

Driver's Signature: ___________

Date: __ _

OR

I DO NOT CONSENT TO A SEARCH.

Driver's Signature: ___________

Date:__ _

Driver's Name: ------------Driver's License No.: --------Vehicle License No.: ---------

Officer's Signature: ____________

Date:__ _

Certifying that you orally explained and obtained

consent in addition to the submission of thisform.

Officer's Name (printed):

ID# ___ _

Agency of Affiliation: _______________

_

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 21 of 28 PageID #: 3476 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 21 of 28 PagelD #: 2240
Appendix D Spanish Translation

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 22 of 28 PageID #: 3477 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 22 of 28 PagelD #: 2241

AVISO DE DERECHOS - CONSENTIMIENTO PARA UN REGISTRO
Si un oficial le pide permiso para realizar un registro durante una parada de trafico:
• USTED TIENE EL DERECHO DE NEGARSE A SER REGISTRADO. • Si usted deja que un oficial revise su vehiculo, sus bienes, o su persona, puede revocar su
consentimiento en cualquier momenta. • Si da consentimiento hoy, este no se puede usar para realizar un registro en otro
momenta. • Si accede a un registro de su vehiculo y/o sus bienes, [inserte el nombre de la agencia]
esta obligada a pagar todos los costos necesarios para reparar cualquier tipo de dafio causado por el registro si este no resulta en la incautaci6n de contrabando. Para solicitar esta indemnizaci6n, hay que redactar un informe escrito detallando cualquier tipo de dafio y entregarlo al [inserte el nombre de la agencia] , ubicada en [inserte direcci6n de la agencia donde hay gue enviar el informe].

Yo,

, he recibido un aviso sobre mis derechos y

---

CONSIENTO A SER REGISTRADO.

Firma del/de la conductor/a: -----------

0

Fecha: -----

---

NO CONSIENTO A SER REGISTRADO.

Firma del/de la conductor/a: -----------

Nombre del/de la conductor/a: ---------------

Numero de licencia de conductor: --------------

Numero de licencia de! vehiculo: --------------

Fecha: ----

Firma de! oficial: ------------

Fecha: ---

Certi.ficando que usted explic6 verbalmente y obtuvo consentimiento ademtis de entregar este formulario.

Nombre de! oficial (letra de imprenta): _________

# de Cedula ____

_

Agencia de afiliaci6n: _______________

_

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 23 of 28 PageID #: 3478 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 23 of 28 PagelD #: 2242
Appendix E

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 24 of 28 PageID #: 3479 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 24 of 28 PagelD #: 2243
NOTICE OF RIGHTS FOR PROPERTY DAMAGE INCIDENT TO SEARCH
A police officer has determined that there is reasonable suspicion of criminal activity requiring a search of your vehicle and/or property. The [insert agency name] is required to pay you for the costs to repair any damage caused by the search if the search does not result in the seizure of contraband. In order to receive compensation, you must provide written notice of any damage to [insert name of the agency] at [insert appropriatP.address] . You are entitled to receive reimbursement within 30 days of a determination that the [insert agency name] is liable for damaging your vehicle and/or property. [Translate to Spanish.]
AVISO SOBRE DERECHOS A INDEMNIFICACION POR DANOS A BIENES CAUSADOS DURANTE
UNREGISTRO
Un oficial de policfa ha determinado que existe una sospecha razonable de actividad criminal, la cual requiere un registro de su vehfculo y/o sus bienes. La agencia [insertar el nombre de la agencia] esta obligada a pagar los costos necesarios para reparar cualquier dafio causado por el registro si el registro no resulta en la incautaci6n de contrabando. Para recibir esta indemnizaci6n, usted debe proveer un informe escrito de! dafio causado a [insertar el nombre de la agencia], ubicada en [insertar direcci6n correspondiente]. Usted tiene el derecho a recibir esta indemnizaci6n dentro de un plazo de 30 dias desde el momento que se establezca que [insertar el nombre de la agencia] es responsable de dafiar su vehfculo y/o sus bienes.

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 25 of 28 PageID #: 3480 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 25 of 28 PagelD #: 2244
Appendix F

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 26 of 28 PageID #: 3481 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 26 of 28 PagelD # : 2245

NOTICE OF SEIZURE OF PROPERTY AND POSSIBLE FORFEITURE
This is to serve as official notice that the items of property listed below have been seized from your possession , and may potentially be subject to forfeiture under Texas Code of Criminal Procedure ("TXCCP") Art. 59.03.

An officer may seize your property ONLY if the officer has reason to believe it has been used in, is intended to be used in, or was gained from the commission of a criminal offense. TXCCP Art. 59.01(2). The officer must explain to you the basis for seizing your property.
• Before seizing your property, an officer must provide ALL the information included in this form for each and every item of property seized (including currency) before you review and sign this notice.
• You are entitled to a formal notice that forfeiture proceedings are being instituted against you within 30 days of the seizure. TXCCP Art. 59.04 . o An officer cannot ask you to waive formal notice unless you are represented by an attorney. o An officer cannot ask you to waive any interest in any asset forfeiture case in exchange for an agreement not to prosecute you for a criminal violation unless a judge is present. o An officer cannot accept a voluntary waiver from you (if you are not represented by an attorney) until 30 days have passed after proper service of a notice of forfeiture.
• State law requires that your seized property be stored safely pending a final forfeiture verdict. If it is determined that seizure was improper, you are entitled to have your property returned to you within 30 business days of a decision not to prosecute a forfeiture claim or a forfeiture verdict in your favor, whichever occurs first.

Description of Item (including quantity)

Location of item upon seizure

Basis for seizure

Was the item seized for
evidence or for forfeiture?

Name of property owner Date

Seizing officer's name and identification# Seizing officer's signature

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 27 of 28 PageID #: 3482 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 27 of 28 PagelD # : 2246
Appendix F Spanish Translation

Case 2:08-cv-00288-JRG Document 354-2 Filed 12/13/18 Page 28 of 28 PageID #: 3483 Case 2:08-cv-00288-JRG Document 261-2 Filed 08/06/12 Page 28 of 28 PagelD #: 2247

AVISO DE INCAUTACION DE BIENES Y SU POSIBLE DECOMISO
Este sirve como aviso oficial de que Ios bienes detallados abajo han sido incautados de su posesion, y podrian ser sujetos a un decomiso bajo el Codigo de Procedimiento Criminal de Texas ("TXCCP") Art. 59.03.
Un oficial puede incautar sus bienes SOLO si el oficial tiene razon para creer que han sido usados en, estan destinados para ser usados en, o fueron adquiridos en la comision de un delito. TXCCP Art. 59.01(2). El oficial debe explicarle la razon por la cual ha incautado sus bienes.
• Antes de incautar sus bienes, un oficial debe proveer TODA Ia inforrnacion contenida en este formulario para cada uno de sus bienes incautados (incluyendo dinero) antes de pedir que usted revise y firme este aviso.
• Usted tiene el derecho a un aviso formal de que un procedimiento de decomiso sera aplicado contra usted dentro de un plazo de 30 dias de! momento de Ia incautacion. TXCCP Art. 59.04. O Un oficial no le puede pedir renunciar a su derecho a un aviso formal a menos que usted este representado legalmente por un/a abogado/a.
o Un oficial no le puede pedir que renuncie a ning(m interes en ningun caso de
decomiso de bienes a cambio de un acuerdo de que no sera procesado Iegalmente por una infraccion penal a menos que este presente un/ajuez/a. O Un oficial no puede recibir una renuncia voluntaria de sus derechos (si usted no esta representado por un/a abogado/a) hasta que hayan pasado 30 dfas despues de que haya sido presentado, de manera adecuada, con Ia notificacion de decomiso. • La Iey estatal dicta que sus bienes incautados deben ser guardados de manera segura hasta que se reciba una decision final sobre su decomiso. Si se decide que Ia incautacion fue ilegal, tiene derecho a que se le devuelvan sus pertenencias dentro de 30 dfas ha.biles desde que se decida no continuar con el procedimiento de decomiso o desde una decision judicial en favor suyo, Io que suceda primero.

Descripcion del articulo (incluyendo la cantidad)

Ubicacion del

Razon por la

articulo cuando fue incautacion

incautado

Fue confiscado el articulo como evidencia o para ser decomisado

Nombre de! duefio de Ios bienes Fecha

Nombre y numero de identificacion de! oficial que realizo Ia incautacion
Firma de! oficial que realizo la incautacion

Case 2:08-cv-00288-JRG Document 354-3 Filed 12/13/18 Page 1 of 1 PageID #: 3484

NOTICE TO ALL PLAINTIFF CLASS MEMBERS IN MORROW, et al v. CITY OF TENAHA, et al., NO. 2-08-CV-288-JRG UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TEXAS, MARSHALL DIVISION, OF PROPOSED SETTLEMENT AGREEMENT ON ADDITIONAL DURATION OF CONSENT DECREE

TO: All class members, to wit, persons who (1) are, or appear to be, members of racial or ethnic minority groups and those in their company, and; (2) were, or will be, traveling in, through, or near Tenaha at any time after November 1, 2006, and; (3) were, or are, subject to being stopped by one or more Defendant for an alleged traffic violation.

You are hereby notified that on December 13, 2018, a Proposed Settlement Agreement on Additional Duration of Consent Decree was filed with the Court, Document 354-1 in this case. The proposed Settlement Agreement seeks to extend the duration of the original Consent Decree that was entered by the Court on August 8, 2013.

On or before 20 days from the posting of this Notice, any plaintiff class member wishing to comment or object to the proposed Settlement Agreement must do so in writing, referencing the name and number of this case as listed above, and filed with the U.S. District Court for the Eastern District of Texas, Room 125, 100 East Houston Street, Marshall, Texas 75670. After that deadline the Court will proceed to consider and act on the proposed Settlement Agreement without further notice to the class.

This notice is intended to comply with an Order of the Court entered on

,

2018.

Any questions or information about this notice can be requested from Plaintiffs’ class counsel.

ATTORNEYS’ NAMES AND ADDRESSES FOR PLAINTIFFS AND DEFENDANTS:

Plaintiffs class counsel

For Defendant Shelby County

Timothy B. Garrigan STUCKEY & GARRIGAN LAW OFFICES, PLLC 2803 North Street P.O. Box 631902 Nacogdoches, TX 75963-1902 (936) 560-9578 Facsimile

Robert Scott Davis Chad Carlton Rook FLOWERS DAVIS LLP 1021 E.S.E. Loop 323, Suite 200 Tyler, TX 75701 (903) 534-1650 Facsimile

For Defendant City of Tenaha

Erika L. Neill ALDERMAN CAIN & NEILL PLLC 122 East Lufkin Avenue Lufkin, Texas 75901-2805 (936) 632-3316 Facsimile

Case 2:08-cv-00288-JRG Document 354-4 Filed 12/13/18 Page 1 of 2 PageID #: 3485

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

JAMES MORROW, ET AL., Plaintiffs,
v.
CITY OF TENAHA DEPUTY CITY MARSHALL, ET AL.,
Defendants.

§ § § § § Civil Action No. 2:08-cv-288 § § JUDGE: RODNEY GILSTRAP §

ORDER

Pending before the Court is the Joint Motion for Approval of the Settlement

Agreement on Additional Duration of Consent Decree and Approval of Notice (Dkt. No.

354). The Court has determined that Notice of the Motion and an opportunity to object

to same should be directed to class members and that a reasonable manner for

such notice to be given is as follows:

1. Parties are directed to post written Notice at the Center City Hall of Tenaha,

Texas.

2. Parties are directed to post written Notice at the Shelby County Courthouse

in Center, Texas.

3. Parties are directed to digitally post Notice on the publically available website

of the National Association for the Advancement of Colored People

(“NAACP”).

4. Parties are directed to digitally post Notice on the publically available website

of the American Civil Liberties Union (“ACLU”).

“Notice” as used herein shall consist of a concise statement to all class members

that the Joint Motion was filed with the Court on December 13, 2018; that on or before 20

Case 2:08-cv-00288-JRG Document 354-4 Filed 12/13/18 Page 2 of 2 PageID #: 3486
days after such notice, any class member wishing to comment or object to the Motion must do so in writing and filed with the Court; and that after such notice period is complete, the Court will proceed to consider and act on the Motion without further notice to the class. After such notice has been given as directed above, Plaintiffs’ counsel shall file a declaration with the Court evidencing that this directive has been complied with and shall attach a copy of the Notice as given.

 
 August 3, 2012
Consent Decree Reforms Egregious Asset Forfeiture Practices and Rampant Racial Profiling by Police
FOR IMMEDIATE RELEASE CONTACT: (212) 549-2666; media@aclu.org
NEW YORK – Police in an East Texas city will no longer enrich their coffers by seizing assets from innocent Black and Latino drivers and threatening them with baseless criminal charges, under a settlement reached today with the American Civil Liberties Union.
The ACLU settled a class-action suit, pending court approval, against officials in Tenaha and Shelby County, where it is estimated police seized $3 million between 2006 and 2008 in at least 140 cases. Police officers routinely pulled over motorists in the vicinity of Tenaha without any legal justification, asked if they were carrying cash and, if they were, ordered them to sign over the cash to the city or face charges of money laundering or other serious crimes.
Almost all of the stops involved Black and Latino drivers. None of the plaintiffs in the case were ever arrested or charged with a crime. The seized assets were used to enrich the defendants’ offices and themselves.
“This was a brazen case of highway robbery, plain and simple,” said Elora Mukherjee, a staff attorney with the ACLU Racial Justice Program. “Law enforcement needs to focus on protecting the communities they serve, not on policing for profit. This far-reaching settlement radically alters how officers in Tenaha and Shelby County can go about their daily duties and protects all motorists driving along Highway 59.”
The ACLU has found multiple instances of this happening across other states, but Tenaha represented some of the worst abuses in racial profiling and civil asset forfeiture. The suit, which was filed in 2008, detailed several instances of police pulling over motorists with no legal justification. In one instance, a Black man and his partner, a white woman, were detained during a 2007 traffic stop. In response to a question by an officer, they stated they had about $6,000 in cash. The officer threatened to charge the couple with money laundering and put their children, who were traveling with them, in foster care, if they did not sign papers agreeing to forfeit the money.
“What happened in Tenaha is not unique when it comes to abuse of civil asset forfeiture laws,” said Vanita Gupta, ACLU deputy legal director. “Permissive civil asset forfeiture laws invite racial profiling. They incentivize police agencies to engage in unconstitutional behavior in order to fund themselves off the backs of low-income motorists, most of whom lack the means to fight back, without any hard evidence of criminal activity. It is no way to run our justice system.”
Texas law allows for the confiscation of personal property police believe is connected to commission of a crime. It also allows for police agencies to retain seized assets, though 2011 reforms in Texas’s civil asset forfeiture law no longer permit those assets to be used for

increasing officers’ salaries without prior approval from the commissioners’ court or other governing body.
Under the consent decree filed today in the U.S. District Court in Marshall, police will now be required to observe rigorous rules that will govern traffic stops in Tenaha and Shelby County. All stops will now be videotaped, and the officer must state the reason for the stop and the basis for suspecting criminal activity. Motorists pulled over during a traffic stop must be advised orally and in writing that they can refuse a search.
In addition, officers are no longer using dogs in conducting traffic stops. No property may be seized during a search unless the officer first gives the driver a reason for why it should be taken. All property improperly taken must be returned within 30 business days. And any asset forfeiture revenue seized during a traffic stop must be donated to non-profit organizations or used for the audio and video equipment or training required by the settlement.
Lawyers on the case include Mukherjee and Sarah Hinger of the ACLU, as well as Timothy Garrigan of Stuckey Garrigan & Castetter, David Guillory of Lone Star Legal Aid, and Stephanie Kay Stephens, Attorney at Law, all in Nacogdoches, Texas.

 
 Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 1 of 40
JRG3,PROTECTIVE−ORDER,STAYED,TransWard
U.S. District Court Eastern District of TEXAS [LIVE] (Marshall) CIVIL DOCKET FOR CASE #: 2:08−cv−00288−JRG

Morrow v. City of Tenaha Deputy City Marshal Barry Washington et al Assigned to: Judge Rodney Gilstrap Cause: 42:1981 Civil Rights
Mediator
Harold Kip Glasscock, Jr

Date Filed: 07/24/2008 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Technical Advisor Joe Evans

Technical Advisor
John Malcolm Bales Monitor

Plaintiff James Morrow

represented by David Joseph Guillory Lone Star Legal Aid − Nacogdoches 414 E Pilar St Nacogdoches, TX 75961 936/560−1455 Fax: 936−560−5385 Email: david.guillory@lonestarlegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D Parker ACLU Racial Justice Program 125 Broad Street 18th Floor New York, NY 10004 212/519−7832 Fax: 212/549−2651 Email: dparker@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee ACLU Racial Justice Program 125 Broad Street 18th Floor New York, NY 10004 212/549−2664 Fax: 212/549−2651 Email: emukherjee@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards ACLU Criminal Law Reform Project 125 Broad Street 18th Floor New York, NY 10004 212/519−2610 Fax: 212/549−2651 Email: eedwards@aclu.org

Plaintiff

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 2 of 40
PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca L Robertson American Civil Liberties Union of Texas P. O. Box 8306 Houston, TX 77288 713−942−8146 Fax: 713−942−8966 Email: rrobertson@aclutx.org ATTORNEY TO BE NOTICED
Sarah Hinger ACLU Racial Justice Program 125 Broad Street 18th Floor New York, NY 10004 212.519.7882 Fax: 212.549.2651 Email: shinger@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Stephanie Kay Stephens Stephanie Stephens−Attorney at Law 119 North Street Ste E Nacogdoches, TX 75961 936−559−7600 Fax: 936−559−7601 Email: stephens_law@att.net ATTORNEY TO BE NOTICED
Timothy David Craig Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963−1902 936−560−6020 Fax: 936−560−9578 Email: timothykraig@gmail.com ATTORNEY TO BE NOTICED
Timothy Borne Garrigan Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963−1902 936/560−6020 Fax: 19365609578 Email: tim2@sgclaw.org ATTORNEY TO BE NOTICED
Vanita Gupta American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 202.675.2332 Email: vgupta@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 3 of 40

Stephen Stuart Watson

represented by Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca L Robertson (See above for address) ATTORNEY TO BE NOTICED

Sarah Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephanie Kay Stephens (See above for address) ATTORNEY TO BE NOTICED

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Amanee Busby

represented by Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca L Robertson

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 4 of 40

(See above for address) ATTORNEY TO BE NOTICED

Sarah Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephanie Kay Stephens (See above for address) ATTORNEY TO BE NOTICED

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Yuselff Dismukes

represented by Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca L Robertson (See above for address) ATTORNEY TO BE NOTICED

Sarah Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephanie Kay Stephens (See above for address) ATTORNEY TO BE NOTICED

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 5 of 40

Plaintiff Linda Dorman

represented by Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca L Robertson (See above for address) ATTORNEY TO BE NOTICED

Sarah Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephanie Kay Stephens (See above for address) ATTORNEY TO BE NOTICED

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Marvin Pearson

represented by Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 6 of 40

Rebecca L Robertson (See above for address) ATTORNEY TO BE NOTICED

Sarah Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephanie Kay Stephens (See above for address) ATTORNEY TO BE NOTICED

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jennifer Boatwright

represented by Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca L Robertson (See above for address) ATTORNEY TO BE NOTICED

Stephanie Kay Stephens (See above for address) ATTORNEY TO BE NOTICED

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ronald Henderson

represented by Timothy Borne Garrigan (See above for address) LEAD ATTORNEY

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 7 of 40

ATTORNEY TO BE NOTICED

Dennis D Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca L Robertson (See above for address) ATTORNEY TO BE NOTICED

Sarah Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephanie Kay Stephens (See above for address) ATTORNEY TO BE NOTICED

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Javier Flores

represented by Dennis D Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca L Robertson (See above for address) ATTORNEY TO BE NOTICED

Sarah Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 8 of 40

Stephanie Kay Stephens (See above for address) ATTORNEY TO BE NOTICED

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff William Flores

represented by Dennis D Parker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca L Robertson (See above for address) ATTORNEY TO BE NOTICED

Sarah Hinger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephanie Kay Stephens (See above for address) ATTORNEY TO BE NOTICED

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant

represented by

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 9 of 40

City of Tenaha Deputy City Marshal Barry Washington in his Individual and Official Capacity

Galen Robert Alderman , Jr Alderman & Cain, PLLC 122 East Lufkin Avenue Lufkin, Tx 75901 936−633−4209 Fax: 936−632−3316 Email: balderman@acnlaw.com TERMINATED: 06/09/2016 LEAD ATTORNEY

Brent Lee Watkins Skelton Slusher Barnhill Watkins Wells PLLC 1616 South Chestnut Lufkin, TX 75901 936/632−3381 Fax: 19366326545 Email: bwatkins@skeltonslusher.com TERMINATED: 06/12/2015

Chad Carlton Rook Flowers Davis PLLC − Tyler 1021 E.S.E. Loop 323 Suite 200 Tyler, TX 75701 903/534−8063 Fax: 903/534−1650 Email: ccr@flowersdavis.com ATTORNEY TO BE NOTICED

Defendant City of Tenaha Mayor

represented by Erika Leigh Neill Alderman & Cain, PLLC 122 East Lufkin Avenue Lufkin, Tx 75901 936−633−4201 Fax: 936−632−3316 Email: eneill@acnlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Galen Robert Alderman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brent Lee Watkins (See above for address) TERMINATED: 06/12/2015

Chad Carlton Rook (See above for address) ATTORNEY TO BE NOTICED

Defendant
Shelby County District Attorneys Office

represented by Leisa Beaty Pearlman Patton Roberts PLLC − Texarkana 5520 Plaza Drive Texarkana, TX 75503 903/334−7000 Fax: 903/334−7007 Email: lpearlman@pattonroberts.com TERMINATED: 07/27/2009 LEAD ATTORNEY

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 10 of 40

Defendant Shelby County Precinct 4 Constable Randy Whatley in his Individual and Official Capacity
Defendant Shelby County District Attorney Investigator Danny Green

Richard Andrew Adams Patton Roberts PLLC − Texarkana 5520 Plaza Drive Texarkana, TX 75503 903/334−7000 Fax: 9033347007 Email: richard.adams@pattonroberts.com TERMINATED: 07/27/2009 LEAD ATTORNEY
Walter Thomas Henson Ramey & Flock 100 E Ferguson Suite 500 Tyler, TX 75702−0629 903/597−3301 Fax: 9035972413 Email: thenson@rameyflock.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chad Carlton Rook (See above for address) ATTORNEY TO BE NOTICED
Corey Darnell McGaha Crowder McGaha, LLP 5507 Ranch Drive, Suite 202 Little Rock, AR 72223 501−205−4026 Fax: 501−367−8208 Email: cmcgaha@crowdermcgaha.com TERMINATED: 07/27/2009
Reid D Miller Patton Roberts PLLC − Texarkana 5520 Plaza Drive Texarkana, TX 75503 903/334−7000 Fax: 903/334−7007 Email: rmiller@pattonroberts.com TERMINATED: 07/27/2009 PRO HAC VICE
represented by Robert Scott Davis Flowers Davis PLLC − Tyler 1021 E.S.E. Loop 323 Suite 200 Tyler, TX 75701 903/534−8063 Fax: 903/534−1650 Email: rsd@flowersdavis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chad Carlton Rook (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Scott Davis (See above for address)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 11 of 40

In his Individual Capacity only

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chad Carlton Rook (See above for address) ATTORNEY TO BE NOTICED

Defendant Shelby County

represented by Chad Carlton Rook (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/24/2008
08/04/2008 11/03/2008 11/04/2008
11/18/2008 11/18/2008
11/20/2008
11/20/2008 11/24/2008 11/24/2008
11/25/2008 11/25/2008 11/25/2008 11/25/2008
11/25/2008

# Docket Text
1 COMPLAINT Original Complaint against all defendants ( Filing fee $ 350 receipt number 05400000000001629964.), filed by James Morrow.(Garrigan, Timothy) (Additional attachment(s) added on 7/28/2008: # 1 Civil Cover Sheet) (sm, ). (Entered: 07/24/2008)
2 Magistrate Consent Form Mailed to James Morrow (ch, ) (Entered: 08/04/2008)
3 AMENDED COMPLAINT against all defendants, filed by James Morrow adding new plaintiffs.(Guillory, David) Modified on 11/5/2008 (sm, ). (Entered: 11/03/2008)
4 E−GOV SEALED SUMMONS Issued as to Danny Green, City of Tenaha Deputy City Marshal Barry Washington (Attachments: # 1 Danny Green, # 2 George Bowers, # 3 Lynda K Russell, # 4 Randy Whatley)(ch, ) (Entered: 11/04/2008)
5 NOTICE of Attorney Appearance by Leisa Beaty Pearlman on behalf of Shelby County District Attorney Linda K. Russell (Pearlman, Leisa) (Entered: 11/18/2008)
6 Unopposed MOTION for Extension of Time to File Answer re 3 Amended Complaint by Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order)(Pearlman, Leisa) (Entered: 11/18/2008)
7 ORDER granting 6 Motion for Extension of Time to Answer. Dft Linda Russell deadline is extended to 12/10/08. Signed by Judge T. John Ward on 11/20/08. (ch, ) (Entered: 11/20/2008)
Answer Due Deadline Updated for Shelby County District Attorney Linda K. Russell to 12/10/2008. (ch, ) (Entered: 11/20/2008)
8 Original ANSWER to 3 Amended Complaint by Danny Green.(Rook, Chad) (Entered: 11/24/2008)
9 ***FILED IN ERROR. ATTORNEY WILL REFILE***
MOTION for More Definite Statement by Danny Green. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) Modified on 11/25/2008 (ch, ). (Entered: 11/24/2008)
10 Original ANSWER to 3 Amended Complaint by Shelby County Precinct 4 Constable Randy Whatley.(Davis, Robert) (Entered: 11/25/2008)
11 NOTICE of Designation of Attorney in Charge to Robert Scott Davis on behalf of Danny Green (Davis, Robert) (Entered: 11/25/2008)
12 NOTICE of Attorney Appearance by Chad Carlton Rook on behalf of Shelby County Precinct 4 Constable Randy Whatley (Rook, Chad) (Entered: 11/25/2008)
13 Amended MOTION for More Definite Statement by Danny Green, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 11/25/2008)
***FILED IN ERROR. Document # 9, Motion for More Definite Statement. PLEASE IGNORE.***
(Attorney will refile)(ch, ) (Entered: 11/25/2008)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 12 of 40

11/25/2008 11/26/2008 12/01/2008 12/01/2008 12/02/2008
12/04/2008
12/08/2008 12/10/2008 12/10/2008 12/11/2008
12/11/2008
12/11/2008 12/12/2008 01/21/2009 01/23/2009 04/24/2009 05/01/2009
05/05/2009 05/06/2009

14 NOTICE of Attorney Appearance by Corey Darnell McGaha on behalf of Shelby County District Attorney Linda K. Russell (McGaha, Corey) (Entered: 11/25/2008)
15 MOTION to Change Venue by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers. (Attachments: # 1 Text of Proposed Order)(Alderman, Galen) (Entered: 11/26/2008)
16 Original ANSWER to 3 Amended Complaint by City of Tenaha Mayor George Bowers.(Alderman, Galen) (Entered: 12/01/2008)
17 Original ANSWER to 3 Amended Complaint by City of Tenaha Deputy City Marshal Barry Washington.(Alderman, Galen) (Entered: 12/01/2008)
Magistrate Consent Form EMailed to City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley (sm, ) (Entered: 12/02/2008)
18 RESPONSE in Opposition re 13 Amended MOTION for More Definite Statement Plaintiffs' Response in Opposition to Defendants' Rule 12(e) Motion filed by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 12/04/2008)
19 RESPONSE in Opposition re 15 MOTION to Change Venue filed by James Morrow. (Attachments: # 1 Exhibit Williams Affidavit, # 2 Text of Proposed Order)(Guillory, David) (Entered: 12/08/2008)
20 MEMORANDUM AND OPINION AND ORDER − re 13 Motion for More Definite Statement is Denied. Signed by Judge T. John Ward on 12/10/08. (ch, ) (Entered: 12/10/2008)
21 ANSWER to 3 Amended Complaint by Shelby County District Attorney Linda K. Russell.(Pearlman, Leisa) (Entered: 12/10/2008)
22 Unopposed MOTION for Extension of Time to File Response/Reply as to 19 Response in Opposition to Motion to Transfer Venue by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers. (Alderman, Galen) (Additional attachment(s) added on 12/12/2008: # 1 Text of Proposed Order) (sm, ). (Entered: 12/11/2008)
23 Additional Attachments to Main Document (PROPOSED ORDER − already attached to #22 by Clerk): 22 Unopposed MOTION for Extension of Time to File Response/Reply as to 19 Response in Opposition to Motion to Transfer Venue.. (Alderman, Galen) Modified on 12/12/2008 (sm, ). (Entered: 12/11/2008)
24 MEMORANDUM OPINION and ORDER denying Motion # 15 to transfer venue. Signed by Judge T. John Ward on 12/11/08. (ehs, ) (Entered: 12/11/2008)
25 ORDER denying 22 Motion for Extension of Time to File Response/Reply. Signed by Judge T. John Ward on 12/12/08. (ch, ) (Entered: 12/12/2008)
NOTICE re 3 Amended Complaint due to clerical error additional plaintiffs were added as defendants, error corrected by clerk. (mpv, ) (Entered: 01/21/2009)
26 APPLICATION to Appear Pro Hac Vice by Attorney Reid D Miller for Shelby County District Attorney Linda K. Russell. (APPROVED, FEE PAID 2−1−4426) (ehs, ) (Entered: 01/23/2009)
27 NOTICE by James Morrow vacation letter (Garrigan, Timothy) (Entered: 04/24/2009)
28 ***VACATED PER ORDER #31***Notice of Scheduling Conference, Proposed Deadlines for Docket Control Order and Discovery Order. Scheduling Conference set for 5/19/2009 09:30 AM before Judge T. John Ward.. Signed by Judge T. John Ward on 5/1/09. (ch, ) Modified on 5/7/2009 (ch, ). (Entered: 05/01/2009)
29 NOTICE of Hearing: Scheduling Conference set for 5/19/2009 at 9:30 AM in Ctrm 106 (Marshall) before Judge T. John Ward. (shd, ) (Entered: 05/05/2009)
30 NOTICE of Hearing: Scheduling Conference RESET to 9:00 AM on 5/19/2009 in Ctrm 106 (Marshall) before Judge T. John Ward. (shd, ) (Entered: 05/06/2009)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 13 of 40

05/07/2009
05/19/2009
05/21/2009
05/26/2009 05/29/2009 05/29/2009 05/29/2009 06/19/2009 06/19/2009 06/19/2009 06/19/2009 06/24/2009 06/30/2009
06/30/2009 06/30/2009
06/30/2009 06/30/2009

31 AMENDED ORDER − The proposed deadlines for Docket Control Order and Proposed Discovery Order in thiscase (Dkt. No. 28), sent to the parties on May 1, 2008, are hereby VACATED. Instead, IT IS ORDERED that counsel meet and confer at the Scheduling Conference set for 5/19/2009 09:00 AM before Judge T. John Ward.. Signed by Judge T. John Ward on 5/7/09. (ch, ) (Entered: 05/07/2009)
Minute Entry for proceedings held before Judge T. John Ward: Scheduling Conference held on 5/19/2009. Timothy Garrigan and David Guillory present for the plaintiffs. Bob Alderman, Jr. in attendance for defendant Barry Washington. Reid Miller present for defendant Shelby County DA. Chad Rook present for defendants, Randy Whatley and Danny Green. Discussion regarding scope of disclosures and dates due. Hearing set for July 2, 2009 @ 9:00 a.m. (Court Reporter Shelly Holmes.) (shd, ) (Entered: 05/19/2009)
32 NOTICE by James Morrow Joint Agreed Proposed Order Regarding Deadlines Announced at the May 19, 2009 Scheduling Conference (Garrigan, Timothy) (Additional attachment(s) added on 5/22/2009: # 1 Text of Proposed Order) (sm, ). (Entered: 05/21/2009)
33 ORDER setting agreed proposed deadlines, ( Discovery due by 6/19/2009., Scheduling Conference set for 7/2/2009 09:00 AM before Judge T. John Ward.). Signed by Judge T. John Ward on 5/26/09. (ehs, ) (Entered: 05/26/2009)
34 NOTICE by Danny Green, Shelby County Precinct 4 Constable Randy Whatley of Filing Description of Materials (Rook, Chad) (Entered: 05/29/2009)
35 NOTICE by City of Tenaha Deputy City Marshal Barry Washington & George Bowers of Filing Discovery (Alderman, Galen) (Entered: 05/29/2009)
36 NOTICE by Shelby County District Attorney Linda K. Russell of Filing Discovery (Pearlman, Leisa) (Entered: 05/29/2009)
37 NOTICE of Disclosure by Shelby County District Attorney Linda K. Russell Notice of Service of Initial Disclosures (Pearlman, Leisa) (Entered: 06/19/2009)
38 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers (Alderman, Galen) (Entered: 06/19/2009)
39 NOTICE of Disclosure by James Morrow Plaintiffs' Notice of Disclosure (Garrigan, Timothy) (Entered: 06/19/2009)
40 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Initial Disclosures (Rook, Chad) (Entered: 06/19/2009)
41 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers First Supplemental (Alderman, Galen) (Entered: 06/24/2009)
42 Unopposed MOTION for Leave to File Unopposed Motion for Leave to File Plaintiffs' Second Amended Complaint by James Morrow. (Attachments: # 1 Exhibit Plaintiffs' Second Amended Complaint, # 2 Text of Proposed Order)(Garrigan, Timothy) (Entered: 06/30/2009)
43 AMENDED COMPLAINT Plaintiffs' Second Amended Complaint against all defendants, filed by James Morrow.(Garrigan, Timothy) (Entered: 06/30/2009)
44 Joint MOTION to Compel Discovery of Plaintiffs by Danny Green, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Text of Proposed Order)(Rook, Chad) (Entered: 06/30/2009)
45 NOTICE by James Morrow Definition of Proposed Class and Related Briefing (Garrigan, Timothy) (Entered: 06/30/2009)
46 NOTICE by James Morrow of filing Joint Statement of Agreement Regarding 31 Amended Order (Guillory, David) Modified on 7/1/2009 (sm, ). (Entered: 06/30/2009)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 14 of 40

07/01/2009 07/01/2009
07/01/2009 07/02/2009 07/06/2009 07/06/2009
07/07/2009 07/07/2009 07/07/2009 07/13/2009 07/15/2009 07/20/2009 07/20/2009
07/21/2009 07/24/2009 07/24/2009
07/24/2009
07/26/2009

47 MOTION to Compel Disclosure by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) Modified on 7/1/2009 (sm, ). (Entered: 07/01/2009)
48 RESPONSE in Opposition re 44 Joint MOTION to Compel Discovery of Plaintiffs Plaintiffs' Response to Defendants' Joint Motion to Compel (Doc. 44) filed by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 07/01/2009)
49 MOTION to Compel Plaintiffs Motion to Compel Disclosures by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 07/01/2009)
50 NOTICE of Hearing: Second Scheduling Conference RESET for 7/9/2009 10:30 AM in Ctrm 106 (Marshall) before Judge T. John Ward. (bga, ) (Entered: 07/02/2009)
51 ORDER granting 42 Motion for Leave to File Second Amended Complaint. Signed by Judge T. John Ward on 7/6/09. (ch, ) (Entered: 07/06/2009)
52 NOTICE of Telephone Conference to discuss the rescheduling of the second scheduling conference. Telephone conference set before Judge T. John Ward on 7/07/09 @ 1:30 p.m. Plaintiff to initiate the telephone conference. (shd, ) (Entered: 07/06/2009)
53 ORDER striking 44 Joint Motion to Compel Discovery; striking 49 Motion to Compel. Pursuant to the telephonic hearing on 7/7/09, both motions are STRICKEN. Signed by Judge T. John Ward on 7/7/09. (ch, ) (Entered: 07/07/2009)
54 NOTICE of Hearing: Second Scheduling Conference RESET for 7/27/2009 at 10:00 AM in Ctrm 106 (Marshall) before Judge T. John Ward. (shd, ) (Entered: 07/07/2009)
56 Minute Entry for proceedings held before Judge T. John Ward: Telephone Conference held on 7/7/2009. (Court Reporter Susan Simmons.) (shd, ) (Entered: 07/14/2009)
55 MOTION to Compel Plaintiffs' Motion to Compel Disclosures by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 07/13/2009)
57 MOTION to Compel Disclosures by Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order)(Pearlman, Leisa) (Entered: 07/15/2009)
58 NOTICE of Disclosure by Shelby County District Attorney Linda K. Russell Notice of Service of First Supplemental Disclosures (Pearlman, Leisa) (Entered: 07/20/2009)
59 Joint MOTION to Compel Discovery from Plaintiffs by Danny Green, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Text of Proposed Order)(Davis, Robert) (Entered: 07/20/2009)
60 ANSWER to 43 Amended Complaint by Shelby County District Attorney Linda K. Russell.(Miller, Reid) (Entered: 07/21/2009)
61 NOTICE of Attorney Appearance by Richard Andrew Adams on behalf of Shelby County District Attorney Linda K. Russell (Adams, Richard) (Entered: 07/24/2009)
62 Unopposed MOTION to Withdraw as Attorney Patton Roberts PLLC's Unopposed Motion to Withdraw as Counsel for Lynda K. Russell in her Individual and Official Capacity and for Substitution of Counsel by Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order)(Adams, Richard) (Entered: 07/24/2009)
63 RESPONSE in Opposition re 57 MOTION to Compel Disclosures, 59 Joint MOTION to Compel Discovery from Plaintiffs filed by Amanee Busby, Yuselff Dismukes, Linda Dorman, Jennifer Boatwright, Ronald Henderson. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 07/24/2009)
64 NOTICE by James Morrow Of Position Regarding Scope of Pre−certification Discovery (Guillory, David) (Entered: 07/26/2009)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 15 of 40

07/27/2009 07/27/2009 07/28/2009 07/28/2009 07/30/2009 07/30/2009 08/03/2009 08/04/2009 08/04/2009 08/04/2009

65 ORDER granting 62 Motion to Withdraw as Attorney. Patton Roberts PLLC's is terminated as counsel for Lynda K Russell. Tom Henson of Ramey and Flock will be substituted. Signed by Judge T. John Ward on 7/27/09. (ch, ) Modified on 7/27/2009 (ch, ). (Entered: 07/27/2009)
66 NOTICE of Attorney Appearance by Walter Thomas Henson on behalf of Shelby County District Attorney Linda K. Russell (Henson, Walter) (Entered: 07/27/2009)
67 RESPONSE to Motion re 55 MOTION to Compel Plaintiffs' Motion to Compel Disclosures filed by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers. (Attachments: # 1 Text of Proposed Order)(Alderman, Galen) (Entered: 07/28/2009)
70 Minute Entry for proceedings held before Judge T. John Ward: Second Scheduling Conference held on 7/27/2009. (Court Reporter Shelly Holmes.) (shd, ) (Entered: 07/31/2009)
68 Agreed MOTION to Enter Modified Deadlines by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) Modified on 7/31/2009 (sm, ). (Entered: 07/30/2009)
69 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers 2nd Supplemental (Alderman, Galen) (Entered: 07/30/2009)
71 ORDER granting 68 Agreed Motion to Enter Modified Deadlines. Modifications agreed to are as follows herein. Signed by Judge T. John Ward on 8/3/09. (ch, ) (Entered: 08/03/2009)
72 RESPONSE in Opposition re 55 MOTION to Compel Plaintiffs' Motion to Compel Disclosures, 47 MOTION to Compel Plaintiffs' Motion to Compel Disclosure filed by Danny Green, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Davis, Robert) (Entered: 08/04/2009)
73 REPLY to Response to Motion re 59 Joint MOTION to Compel Discovery from Plaintiffs filed by Danny Green, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County Precinct 4 Constable Randy Whatley. (Davis, Robert) (Entered: 08/04/2009)
74 ***FILED IN ERROR, PLEASE IGNORE.***

08/04/2009

NOTICE by Danny Green, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley re 64 Notice (Other) Defendants' Response to Plaintiffs' Position Regarding Scope of Pre−Certification Discovery/Disclosure (Davis, Robert) Modified on 8/5/2009 (sm, ). (Entered: 08/04/2009)
75 ***FILED IN ERROR, PLEASE IGNORE.***

08/04/2009 08/04/2009 08/05/2009

NOTICE by Danny Green, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley re 45 Notice (Other) Defendants' Response to Plaintiffs' Definition of Proposed Class and Related Briefing (Davis, Robert) Modified on 8/5/2009 (sm, ). (Entered: 08/04/2009)
76 NOTICE of Disclosure by Shelby County District Attorney Linda K. Russell Second Supplemental (Henson, Walter) (Entered: 08/04/2009)
77 RESPONSE to Motion re 55 MOTION to Compel Plaintiffs' Motion to Compel Disclosures filed by Shelby County District Attorney Linda K. Russell. (Henson, Walter) (Entered: 08/04/2009)
***FILED IN ERROR, WRONG EVENT, ATTY MUST REFILE THESE DOCUMENTS USING CORRECT EVENT. Document # 74 and #75, Notices. PLEASE IGNORE.***

(sm, ) (Entered: 08/05/2009)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 16 of 40

08/05/2009 08/05/2009 08/07/2009

78 RESPONSE to 64 Notice (Other) Defendants' Response to Plaintiffs' Position Regarding Scope of Pre−Certification Discovery/Disclosure by Danny Green, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Davis, Robert) (Entered: 08/05/2009)
79 RESPONSE to 45 Notice (Other) Defendants' Response to Plaintiffs' Definition of Proposed Class and Related Briefing by Danny Green, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Davis, Robert) (Entered: 08/05/2009)
80 ***FILED IN ERROR. WRONG EVENT. PLEASE IGNORE.***

08/07/2009

NOTICE by James Morrow re 78 Response to Non−Motion, Plaintiffs' Reply to Doc. 78, Defendants' Resposne to Plaintiffs' Position Regarding Scope of Pre−Certification Discovery/Disclosure (Garrigan, Timothy) Modified on 8/7/2009 (ch, ). (Entered: 08/07/2009)
81 ***FILED IN ERROR. FILED UNDER WRONG EVENT. PLEASE IGNORE.***

08/07/2009 08/07/2009

NOTICE by James Morrow re 79 Response to Non−Motion, Plaintiffs' Reply to Doc. 79, Defendants' Response to Plaintiffs' Definition of Proposed Class and Related Briefing (Garrigan, Timothy) Modified on 8/7/2009 (ch, ). (Entered: 08/07/2009)
82 REPLY to Response to Motion re 55 MOTION to Compel Plaintiffs' Motion to Compel Disclosures Plaintiffs' Reply to Docs. 67, 72 and 77, Defendants' Responses to Plaintiffs' Motion to Compel Disclosures filed by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 08/07/2009)
***FILED IN ERROR. FILED UNDER WRONG EVENT Document # 80, Reply. PLEASE IGNORE.***

08/07/2009

(ch, ) (Entered: 08/07/2009)
***FILED IN ERROR. FILED UNDER WRONG EVENT Document # 81, Reply. PLEASE IGNORE.***

(ch, ) (Entered: 08/07/2009) 08/07/2009 83 ***REPLACES # 80 ***

08/07/2009

RESPONSE to 78 Response to Non−Motion, Plaintiffs' Reply to Doc. 78, Defendants' Response to Plaintiffs' Position Regarding Scope of Pre−Certification Discovery/Disclosure by James Morrow. (Garrigan, Timothy) Modified on 8/10/2009 (ch, ). (Entered: 08/07/2009)
84 ***REPLACES # 81 ***

08/10/2009
08/17/2009 08/20/2009 08/24/2009

RESPONSE to 79 Response to Non−Motion, Plaintiffs' Reply to Doc. 79, Defendants' Response to Plaintiffs' Definition of Proposed Class and Related Briefing by James Morrow. (Garrigan, Timothy) Modified on 8/10/2009 (ch, ). (Entered: 08/07/2009)
91 Minute Entry for proceedings held before Judge T. John Ward: Motion Hearing held on 8/10/2009 re motions to compel. (Court Reporter Shelly Holmes.) (shd, ) (Entered: 09/02/2009)
85 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley First Supplemental (Rook, Chad) (Entered: 08/17/2009)
86 MEMORANDUM OPINION AND ORDER − (see order for details). Signed by Judge T. John Ward on 8/20/09. (ch, ) (Entered: 08/20/2009)
87 NOTICE by Shelby County District Attorney Linda K. Russell of Submission of Privilege Log (Henson, Walter) (Entered: 08/24/2009)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 17 of 40

08/24/2009 08/24/2009 08/24/2009 09/09/2009 09/10/2009 09/11/2009 09/17/2009
09/24/2009 09/28/2009 09/28/2009 10/12/2009 11/02/2009
11/04/2009
12/07/2009 12/07/2009 12/29/2009 01/06/2010

88 NOTICE by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers of Production of Privilege Log (Alderman, Galen) (Entered: 08/24/2009)
89 NOTICE of Disclosure by James Morrow Plaintiffs' Notice of Disclosure (Garrigan, Timothy) (Entered: 08/24/2009)
90 NOTICE by Danny Green, Shelby County Precinct 4 Constable Randy Whatley of Privilege Log (Rook, Chad) (Entered: 08/24/2009)
92 NOTICE of Disclosure by Shelby County District Attorney Linda K. Russell (Third Supplemental) (Henson, Walter) (Entered: 09/09/2009)
93 Joint MOTION for Extension of Time to Complete Discovery by James Morrow. (Attachments: # 1 Text of Proposed Order)(Guillory, David) (Entered: 09/10/2009)
94 NOTICE by Shelby County District Attorney Linda K. Russell re 93 Joint MOTION for Extension of Time to Complete Discovery (Joinder in Motion) (Henson, Walter) (Entered: 09/11/2009)
95 ORDER granting 93 Motion for Extension of Time to Complete Discovery. Parties to exchange the disclosure materials ordered to be produced by the Courts Order of August 10, 2009 no later than September 28, 2009. Signed by Judge T. John Ward on 9/17/09. (ehs, ) (Entered: 09/17/2009)
96 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Second Supplemental (Rook, Chad) (Entered: 09/24/2009)
97 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers 3rd Supplemental (Alderman, Galen) (Entered: 09/28/2009)
98 NOTICE of Disclosure by James Morrow Plaintiffs' Notice of Disclosures (Garrigan, Timothy) (Entered: 09/28/2009)
99 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers 4th Supplemental (Alderman, Galen) (Entered: 10/12/2009)
100 Joint MOTION to Modify Deadlines by Danny Green, Stephen Stuart Watson, James Morrow, Amanee Busby, Yuselff Dismukes, Linda Dorman, Marvin Pearson, Jennifer Boatwright, Ronald Henderson, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Alderman, Galen) (Entered: 11/02/2009)
101 ORDER granting 100 Motion to Modify Deadlines Regarding ExpertDesignation and Challenges. December 7, 2009 Parties will designate any expert witnesses whose testimony relates to class certification issues for which that Party bears the burden of proof. January 7, 2010 Rebuttal experts will be designated. February 7, 2010 Any Daubert and Kuhmo challenges to experts will be filed. Signed by Judge T. John Ward on 11/3/09. (ehs, ) (Entered: 11/04/2009)
102 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Third Supplemental Disclosures and Designation of Class Certification Expert (Rook, Chad) (Entered: 12/07/2009)
103 NOTICE of Disclosure by Shelby County District Attorney Linda K. Russell Fourth Supplemental Disclosures (Henson, Walter) (Entered: 12/07/2009)
104 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers Sixth Supplemental Disclosure and Designation of Class Certification Expert (Alderman, Galen) (Entered: 12/29/2009)
105 NOTICE of Disclosure by Danny Green, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley SUPPLEMENT TO EXPERT DISCLOSURES (Rook, Chad) (Entered: 01/06/2010)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 18 of 40

01/07/2010
01/19/2010
02/05/2010 02/05/2010 02/17/2010
02/17/2010 02/19/2010 02/22/2010 02/24/2010 02/25/2010 02/26/2010 03/01/2010 03/01/2010 03/01/2010 03/02/2010 03/10/2010 03/15/2010
03/15/2010 03/16/2010

106 NOTICE by James Morrow re 103 Notice of Disclosure, 104 Notice of Disclosure, 102 Notice of Disclosure, 105 Notice of Disclosure, Plaintiffs' Challenge to the Designation and Report of Defendants' Proposed Expert Witness Margo Frasier (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1, # 2 Exhibit Plaintiffs' Exhibit 2, # 3 Text of Proposed Order)(Garrigan, Timothy) (Entered: 01/07/2010)
107 RESPONSE to 106 Notice (Other), Notice (Other) Plaintiffs' Challenge to the Designation and Report of Defendants' Expert Witness, Margo Frasier by Danny Green, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Davis, Robert) (Entered: 01/19/2010)
108 NOTICE by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Vacation Dates (Rook, Chad) (Entered: 02/05/2010)
109 Additional Attachments to Main Document: 108 Notice (Other).. (Rook, Chad) (Entered: 02/05/2010)
110 Unopposed MOTION for Leave to File Plaintiffs' Unopposed Motion for Leave of Court to File Plaintiffs' Third Amended Complaint, Pursuant to Rule 15(a)(2) by James Morrow. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Garrigan, Timothy) (Additional attachment(s) added on 2/18/2010: # 3 REVISED ORDER) (ch, ). (Entered: 02/17/2010)
111 AMENDED COMPLAINT Plaintiffs' Third Amended Complaint against all defendants, filed by James Morrow.(Garrigan, Timothy) (Entered: 02/17/2010)
112 ORDER granting 110 Motion for Leave to File Third Amended Complaint. Signed by Judge T. John Ward on 2/19/10. (ehs, ) (Entered: 02/19/2010)
113 NOTICE by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers Vacation Dates (Alderman, Galen) (Entered: 02/22/2010)
114 Unopposed MOTION change remaining scheduled deadlines by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 02/24/2010)
115 ORDER granting 114 Unopposed Motion to Change Remaining Scheduled Deadlines. Deadlines are as follows herein. Signed by Judge T. John Ward on 2/25/2010. (ch, ) (Entered: 02/25/2010)
116 ANSWER to 111 Amended Complaint (Plaintiffs' Third) by Shelby County District Attorney Linda K. Russell.(Henson, Walter) (Entered: 02/26/2010)
117 ANSWER to 111 Amended Complaint by Danny Green, Shelby County Precinct 4 Constable Randy Whatley.(Davis, Robert) (Entered: 03/01/2010)
118 ANSWER to 111 Amended Complaint Plaintiffs' Third Amended by City of Tenaha Mayor George Bowers.(Alderman, Galen) (Entered: 03/01/2010)
119 ANSWER to 111 Amended Complaint Plaintiffs' Third Amended by City of Tenaha Deputy City Marshal Barry Washington.(Alderman, Galen) (Entered: 03/01/2010)
120 NOTICE of Disclosure by James Morrow Plaintiffs' Notice of Disclosure (Garrigan, Timothy) (Entered: 03/02/2010)
121 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Fifth Supplemental (Rook, Chad) (Entered: 03/10/2010)
122 Unopposed MOTION for Leave to File Motion for Protection Under Seal by Shelby County District Attorney Linda K. Russell. (Henson, Walter) (Additional attachment(s) added on 3/16/2010: # 1 Text of Proposed Order) (rml, ). (Entered: 03/15/2010)
123 Opposed SEALED MOTION for Protection re: Staying Discovery Directed Toward Her by Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Henson, Walter) (Entered: 03/15/2010)
124 ORDER granting 122 Motion for Leave to File under seal, her Motion for Protection re: Staying Discovery Directed Toward Her.. Signed by Judge T. John Ward on

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 19 of 40

3/16/10. (ehs, ) (Entered: 03/16/2010) 03/25/2010 125 ***DEFICIENT DOCUMENT, PLEASE IGNORE.***

03/25/2010 03/26/2010 03/26/2010 03/26/2010
03/29/2010 03/29/2010 03/29/2010 03/30/2010 03/31/2010 03/31/2010 03/31/2010 04/01/2010 04/01/2010

NOTICE of Attorney Appearance by Stephanie Kay Stephens on behalf of Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson (Stephens, Stephanie) Modified on 3/25/2010 (sm, ). (Entered: 03/25/2010)
NOTICE of DEFICIENCY regarding the #125 Notice of atty appearance submitted by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Ronald Henderson. No attorney signature and no certificate of service. Correction should be made and document refiled. (sm, ) (Entered: 03/25/2010)
126 NOTICE of Attorney Appearance by Stephanie Kay Stephens on behalf of Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson (Stephens, Stephanie) (Entered: 03/26/2010)
127 Unopposed MOTION for Leave to File (Under Seal) Plaintiffs' Response in Opposition to Russell's Opposed Motion for Protection (Doc. 123) by Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order)(Henson, Walter) (Entered: 03/26/2010)
128 SEALED RESPONSE to Motion re 123 Opposed SEALED MOTION for Protection re: Staying Discovery Directed Toward Her filed by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 03/26/2010)
129 ORDER granting 127 Motion for Leave to File Under Seal Plaintiffs Response in Opposition to Dft 123 . Signed by Judge T. John Ward on 3/29/2010. (ch, ) (Entered: 03/29/2010)
130 Unopposed MOTION for Leave to File (Under Seal) Reply to Plaintiffs' Response to Defendant Russell's Opposed Motion for Protection by Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order)(Henson, Walter) (Entered: 03/29/2010)
131 SEALED REPLY to Response to Motion re 123 Opposed SEALED MOTION for Protection re: Staying Discovery Directed Toward Her filed by Shelby County District Attorney Linda K. Russell. (Henson, Walter) (Entered: 03/29/2010)
132 ORDER granting 130 Motion for Leave to File under seal, Reply to Plaintiffs' Response to Defendant Russell's Opposed Motion for Protection.. Signed by Judge T. John Ward on 3/30/10. (ehs, ) (Entered: 03/30/2010)
133 Unopposed MOTION for Leave to File (Under Seal) Opposed Motion for Protection by Danny Green. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 03/31/2010)
134 Opposed SEALED MOTION For Protection Re: Staying Discovery Directed Toward Him by Danny Green. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 03/31/2010)
135 SEALED ADDITIONAL ATTACHMENTS to Main Document: 134 Opposed SEALED MOTION For Protection Re: Staying Discovery Directed Toward Him. (Attachments: # 1 Exhibit B, # 2 Exhibit C)(Rook, Chad) (Entered: 03/31/2010)
136 NOTICE of Hearing on Defendant's Motions for Protection (Docket Nos. 123 and 134)set for 4/15/2010 01:30 PM in Ctrm 106 (Marshall) before Judge T. John Ward. (bga, ) (Entered: 04/01/2010)
137 ORDER − the court ORDERS Plaintiff to file his opposition to the Dft Danny Green's Opposed Motion for Protection Re: Staying Dicovery Directed toward him. 134 by 4/8/2010 @ 5:00 pm. Any reply is due on 4/12/2010 @ 5:00 pm. The court will conduct a Hearing on Motion 123 Opposed SEALED MOTION for Protection re: Staying Discovery Directed Toward Her :( Motion Hearing set for 4/15/2010 01:30

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 20 of 40

04/01/2010 04/06/2010 04/07/2010 04/07/2010 04/08/2010
04/08/2010 04/08/2010
04/12/2010 04/12/2010 04/14/2010 04/15/2010 04/15/2010 04/20/2010
04/22/2010
04/26/2010 04/28/2010

PM before Judge T. John Ward.. Signed by Judge T. John Ward on 4/1/2010. (ch, ) (Entered: 04/01/2010)
138 ORDER granting 133 Motion for Leave to File Under Seal for Motion for Protection re: Staying Discovery Directed toward Him. Signed by Judge T. John Ward on 4/1/2010. (ch, ) (Entered: 04/01/2010)
139 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Sixth Supplemental (Rook, Chad) (Entered: 04/06/2010)
140 Unopposed MOTION for Leave to File Plaintiffs' Response in Opposition to Defendant Danny Green's Opposed Motion for Protection (Doc. 134) by Danny Green. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 04/07/2010)
141 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Seventh Supplemental (Rook, Chad) (Entered: 04/07/2010)
142 SEALED RESPONSE to Motion re 140 Unopposed MOTION for Leave to File Plaintiffs' Response in Opposition to Defendant Danny Green's Opposed Motion for Protection (Doc. 134), 134 Opposed SEALED MOTION For Protection Re: Staying Discovery Directed Toward Him filed by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 04/08/2010)
143 Additional Attachments to Main Document: 142 Sealed Response to Motion,.. (Garrigan, Timothy) (Entered: 04/08/2010)
144 ORDER granting 140 Motion for Leave to File Under Seal, Plaintiffs Response in Opposition to Dft Danny Green's Motion for Protection re: Staying Discovery Directed Toward Him 134 . Signed by Judge T. John Ward on 4/8/2010. (ch, ) (Entered: 04/08/2010)
145 Unopposed MOTION for Leave to File , Under Seal, Reply to Plaintiffs' Reponse to Defendant Green's Motion for Protection by Danny Green. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 04/12/2010)
146 SEALED REPLY to Response to Motion re 134 Opposed SEALED MOTION For Protection Re: Staying Discovery Directed Toward Him filed by Danny Green. (Rook, Chad) (Entered: 04/12/2010)
147 ORDER granting 145 Motion for Leave to File under seal, his Reply to Plaintiffs Response to Defendant Greens Opposed Motion for Protection. Signed by Judge T. John Ward on 4/14/10. (ehs, ) (Entered: 04/14/2010)
148 Minute Entry for proceedings held before Judge T. John Ward: Motion Hearing held on 4/15/2010 re Docket Nos. 123 and 134. (Court Reporter Shelly Holmes.) (shd, ) (Entered: 04/15/2010)
149 ORDER granting 134 Motion to stay discovery. The Court orders a limited stay of discovery only as to these two defendants for a period of 90 days. Signed by Judge T. John Ward on 4/15/10. (ehs, ) (Entered: 04/15/2010)
150 Agreed MOTION for Extension of Time to Complete Discovery (Change Remaining Scheduling Deadlines) by Danny Green, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 04/20/2010)
151 ORDER granting 150 Motion for Extension of Time to Complete Discovery. August 16, 2010 The parties will file any dispositive motions on class certification issues, including Plaintiffs Motion for Class Certification. September 15, 2010 Responses to dispositive motions will be filed. October 1, 2010 The parties will be ready for any hearings related to class certification. Signed by Judge T. John Ward on 4/22/10. (ehs, ) (Entered: 04/22/2010)
152 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Eighth Supplemental (Rook, Chad) (Entered: 04/26/2010)
153 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers 7th Supplement (Alderman, Galen) (Entered: 04/28/2010)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 21 of 40

05/12/2010 05/13/2010
05/17/2010 05/17/2010
05/18/2010 05/18/2010
05/19/2010 05/21/2010 05/28/2010 06/02/2010 06/18/2010 07/08/2010
07/23/2010 07/23/2010 07/23/2010 07/23/2010 07/26/2010
07/26/2010

154 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Ninth Supplemental (Rook, Chad) (Entered: 05/12/2010)
155 MOTION for Protective Order Partial Protection and Objections to Notice of Deposition on behalf of Randy Whatley, in his official capacity by Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Davis, Robert) (Entered: 05/13/2010)
156 NOTICE of Disclosure by James Morrow (Garrigan, Timothy) (Entered: 05/17/2010)
157 RESPONSE in Opposition re 155 MOTION for Protective Order Partial Protection and Objections to Notice of Deposition on behalf of Randy Whatley, in his official capacity Plaintiffs' Response in Opposition to Defendant Whatley's Motion for Partial Protection (Doc. 155) filed by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 05/17/2010)
158 NOTICE of Disclosure by James Morrow Plaintiffs' Notice of Disclosure (Garrigan, Timothy) (Entered: 05/18/2010)
159 REPLY to Response to Motion re 155 MOTION for Protective Order Partial Protection and Objections to Notice of Deposition on behalf of Randy Whatley, in his official capacity in Opposition filed by Shelby County Precinct 4 Constable Randy Whatley. (Davis, Robert) (Entered: 05/18/2010)
160 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Tenth Supplemental (Rook, Chad) (Entered: 05/19/2010)
161 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers 8th Supplemental (Alderman, Galen) (Entered: 05/21/2010)
162 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Eleventh Supplemental (Rook, Chad) (Entered: 05/28/2010)
163 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Twefth Supplemental (Rook, Chad) (Entered: 06/02/2010)
164 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Thirteenth Supplemental (Rook, Chad) (Entered: 06/18/2010)
165 MEMORANDUM OPINION AND ORDER − for reasons set forth above, the court hereby DENIES Whatley's Motion for Partial Protection and Objections to Notice Deposition on Behalf of Randy Whatley, in his Official Capacity. Signed by Judge T. John Ward on 7/7/2010. (ch, ) (Entered: 07/08/2010)
166 Unopposed MOTION for Leave to File Second Motion for Protection Under Seal by Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order)(Henson, Walter) (Entered: 07/23/2010)
167 Opposed SEALED MOTION for Protection re Staying Discovery Directed Toward Her (Second) by Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A)(Henson, Walter) (Entered: 07/23/2010)
168 Unopposed MOTION for Leave to File Second Motion for Protection Under Seal by Danny Green. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 07/23/2010)
169 Second SEALED MOTION For Protection to Stay Discovery Directed Toward Him by Danny Green. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Rook, Chad) (Entered: 07/23/2010)
170 ORDER granting 166 Motion for Leave to File under seal. Motion is hereby granted and Defendant Lynda K. Russell may file, under seal, her Second Opposed Motion for Protection re: Staying Discovery Directed Toward Her.. Signed by Judge T. John Ward on 7/26/10. (ehs, ) (Entered: 07/26/2010)
171 ORDER granting 168 Motion for Leave to File under seal, his Second Motion for Protection re: Staying Discovery Directed Toward Him.. Signed by Judge T. John Ward on 7/26/10. (ehs, ) (Entered: 07/26/2010)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 22 of 40

07/26/2010
07/26/2010 07/26/2010
07/28/2010 07/30/2010 07/30/2010 08/03/2010 08/16/2010 08/16/2010 08/17/2010

172 ORDER Setting Hearing on Motion 169 Second SEALED MOTION For Protection to Stay Discovery Directed Toward Him, 167 Opposed SEALED MOTION for Protection re Staying Discovery Directed Toward Her (Second) : Motion Hearing set for 7/30/2010 10:00 AM in Ctrm 106 (Marshall) before Judge T. John Ward. Plaintiffs file their responses to Defendant Linda K Russells Second Opposed Motion for Protection Re: Staying Discovery Directed Toward Her (Dkt. No. 167) and Defendant Danny Greens Second Motion for Protection to Stay Discovery Directed Toward Him (Dkt. No. 169) by Wednesday, July 28, 2010 at 5:00 p.m.. Signed by Judge T. John Ward on 7/26/10. (ehs, ) (Entered: 07/26/2010)
173 Unopposed MOTION for Leave to File For Plaintiffs to File, Under Seal, Plaintiffs Response in Opposition to Defendants Danny Green and Linda K. Russells Second Motions for Protection (Docs #167 and169) by Danny Green, Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 07/26/2010)
174 SEALED RESPONSE to Motion re 169 Second SEALED MOTION For Protection to Stay Discovery Directed Toward Him, 167 Opposed SEALED MOTION for Protection re Staying Discovery Directed Toward Her (Second), 173 Unopposed MOTION for Leave to File For Plaintiffs to File, Under Seal, Plaintiffs Response in Opposition to Defendants Danny Green and Linda K. Russells Second Motions for Protection (Docs #167 and169)Unopposed MOTION for Leave to File For Plaintiffs to File, Under Seal, Plaintiffs Response in Opposition to Defendants Danny Green and Linda K. Russells Second Motions for Protection (Docs #167 and169) filed by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 07/26/2010)
175 ORDER granting 173 Motion for Leave to File Under Seal, Plaintiffs Response in Opposition to Defendants Danny Green and Linda K. Russells Second Motions for Protection (Docs. # 167 and 169).. Signed by Judge T. John Ward on 7/28/10. (ehs, ) (Entered: 07/28/2010)
176 Minute Entry for proceedings held before Judge T. John Ward: Motion Hearing held on 7/30/2010 re 169 Second SEALED MOTION For Protection to Stay Discovery Directed Toward Him filed by Danny Green, 167 Opposed SEALED MOTION for Protection re Staying Discovery Directed Toward Her (Second) filed by Shelby County District Attorney Linda K. Russell. (Court Reporter Susan Simmons.) (bga, ) (Entered: 07/30/2010)
177 MEMORANDUM AND OPINION − the Court hereby DENIES Defendant Lynda K. Russells Second Opposed Motion for Protection Re: Staying Discovery Directed Toward H(Dkt. No. 167) and Defendant Danny Greens Second Motion for Protection to Stay Discovery Directed Toward Him (Dkt. No. 169).. Signed by Judge T. John Ward on 7/30/10. (ehs, ) (Entered: 07/30/2010)
178 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers 9th Supplemental (Alderman, Galen) (Entered: 08/03/2010)
179 MOTION to Certify Class by James Morrow. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Text of Proposed Order)(Garrigan, Timothy) (Additional attachment(s) added on 8/17/2010: # 21 Redacted Exhibit H (replaces #10 Exhibit that included SSN) (sm, ). Modified on 8/17/2010 (sm, ). (Entered: 08/16/2010)
180 Unopposed MOTION for Leave to File Unopposed Motion to File Plaintiffs' Motion for Class Certification in Excess of Page Limitation by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 08/16/2010)
NOTICE FROM CLERK re 179 MOTION to Certify Class. Clerk, Per Atty, has deleted Exhibit #10 and replaced with REDACTED Exhibit H (#10 Exhibit) so that SSN is no longer on the exhibit that was filed due to not being a sealed document. (sm, ) (Entered: 08/17/2010)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 23 of 40

08/17/2010 08/20/2010 08/25/2010 09/02/2010 09/02/2010 09/03/2010
09/03/2010 09/03/2010
09/09/2010
09/10/2010
09/10/2010 09/10/2010

181 ORDER granting 180 Motion for Leave to File Class Certification. Signed by Judge T. John Ward on 8/17/10. (ehs, ) (Entered: 08/17/2010)
182 Agreed MOTION for Protective Order by Shelby County District Attorney Linda K. Russell. (Attachments: # 1 Text of Proposed Order)(Henson, Walter) (Additional attachment(s) added on 8/20/2010: # 2 Revised Protective Order) (sm, ). (Entered: 08/20/2010)
183 STANDARD PROTECTIVE ORDER. Signed by Judge T. John Ward on 8/24/2010. (ch, ) (Entered: 08/25/2010)
184 NOTICE by James Morrow Certification of Non−Agreement to Confidential Nature of Documents Sought to be Subject to Standard Protective Order (Doc. 183) (Garrigan, Timothy) (Entered: 09/02/2010)
185 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley 14th Supplemental Disclosures (Davis, Robert) (Entered: 09/02/2010)
186 Opposed MOTION for Leave to File Defendants' Joint Motion for Protection Against the Dissemination of Pretrial Discovery by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 09/03/2010)
187 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Fifteenth Supplemental Disclosures (Davis, Robert) (Entered: 09/03/2010)
188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Rook, Chad) (Entered: 09/03/2010)
189 Unopposed MOTION for Leave to File Defendants' Joint Response to Plaintiffs' Motion for Class Certification in Excess of Page Limitation by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 09/09/2010)
190 Unopposed MOTION to Seal Document 188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial DiscoveryJoint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery Unopposed Motion for Leave for Plaintiffs to File, Under Seal, Plaintiffs' Response Opposing Defendants' Joint Motion for Protection Against the Dissemination of Pretrial Discovery (Doc. 188 "Under Seal") by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 09/10/2010)
191 Unopposed MOTION to Seal Document 179 MOTION to Certify Class Unopposed Motion for Leave for Plaintiffs to File, Under Seal, Plaintiffs' Supplement to Motion for Class Certification (Doc. 179) and Exhibits by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 09/10/2010)
192 ***FILED IN ERROR, PLEASE IGNORE.***

09/10/2010

Supplemental SEALED MOTION Plaintiffs' Supplement to Motion for Class Certification (Doc. 179) by James Morrow. (Garrigan, Timothy) Modified on 9/13/2010 (sm, ). Modified on 9/13/2010 (sm, ). (Entered: 09/10/2010)
193 ***FILED IN ERROR, PLEASE IGNORE.***

SEALED RESPONSE to Motion re 188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial DiscoveryJoint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery, 190 Unopposed MOTION to Seal Document 188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial DiscoveryJoint SEALED

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 24 of 40

09/13/2010

MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery UnoppUnopposed MOTION to Seal Document 188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial DiscoveryJoint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery UnoppUnopposed MOTION to Seal Document 188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial DiscoveryJoint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery Unopp filed by James Morrow. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1, # 2 Exhibit Plaintiffs' Exhibit 2, # 3 Text of Proposed Order)(Garrigan, Timothy) Modified on 9/13/2010 (sm, ). (Entered: 09/10/2010)
***FILED IN ERROR, PER ATTY, ATTY WILL REFILE, #192 motion is now terminated. Document # 192 and 193, Sealed Supplemental Motion and Sealed Reply. PLEASE IGNORE.***

09/13/2010 09/13/2010
09/13/2010 09/13/2010 09/13/2010 09/13/2010 09/13/2010 09/15/2010

(sm, ) (Entered: 09/13/2010)
194 SEALED MOTION Plaintiffs' Supplement to Motion for Class Certification (Doc. 179) by James Morrow. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1, # 2 Exhibit Plaintiffs' Exhibit 2, # 3 Text of Proposed Order)(Garrigan, Timothy) (Entered: 09/13/2010)
195 SEALED RESPONSE to Motion re 188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial DiscoveryJoint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery, 190 Unopposed MOTION to Seal Document 188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial DiscoveryJoint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery UnoppUnopposed MOTION to Seal Document 188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial DiscoveryJoint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery UnoppUnopposed MOTION to Seal Document 188 Joint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial DiscoveryJoint SEALED MOTION (Defendants) for Protection Against the Dissemination of Pretrial Discovery Unopp filed by James Morrow. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 09/13/2010)
196 ORDER granting 189 Motion for Leave to File Defendants Response to Plaintiffs Motion for Class Certification in Excess of Page Limitation.The Clerk of the District Court is directed to accept for filing Defendants Motion for Class Certification, with attachments, when filed. Signed by Judge T. John Ward on 9/13/10. (ehs, ) (Entered: 09/13/2010)
197 ORDER granting 190 Motion for Leave for Plaintiffs to File, Under Seal, Plaintiffs Response Opposing Defendants Joint Motion for Protection Against the Dissemination of Pretrial Discovery (Doc. 188 Under Seal). Signed by Judge T. John Ward on 9/13/10. (ehs, ) (Entered: 09/13/2010)
198 ORDER granting 191 Motion for Plaintiffs to File, Under Seal, Plaintiffs Supplement to Motion for Class Certification (Doc. 179). Signed by Judge T. John Ward on 9/13/10. (ehs, ) (Entered: 09/13/2010)
199 Unopposed MOTION for Leave to File Defendants' Response to Plaintiffs' Motion for Class Certification Under Seal by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 09/13/2010)
200 Additional Attachments to Main Document: 194 SEALED MOTION Plaintiffs' Supplement to Motion for Class Certification (Doc. 179) SEALED MOTION Plaintiffs' Supplement to Motion for Class Certification (Doc. 179).. (Garrigan, Timothy) (Entered: 09/13/2010)
201 SEALED RESPONSE to Motion re 199 Unopposed MOTION for Leave to File Defendants' Response to Plaintiffs' Motion for Class Certification Under Seal, 179 MOTION to Certify Class filed by City of Tenaha Deputy City Marshal Barry

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 25 of 40

09/15/2010 09/15/2010 09/24/2010
09/24/2010
09/27/2010 09/28/2010 10/05/2010 10/06/2010 10/26/2010 10/27/2010 10/27/2010
11/03/2010 11/08/2010

Washington, City of Tenaha Mayor George Bowers, Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Text of Proposed Order)(Davis, Robert) (Entered: 09/15/2010)
202 ORDER granting 186 Motion for Leave to File. Defendants may file, under seal, their Joint Motion for Protection Against the Dissemination of Pretrial Discovery. Signed by Judge T. John Ward on 9/15/10. (ehs, ) (Entered: 09/15/2010)
203 ORDER granting 199 Motion for Leave to File, under seal Response to Plaintiffs Motion for Class Certification. Signed by Judge T. John Ward on 9/15/10. (ehs, ) (Entered: 09/15/2010)
204 Unopposed MOTION for Leave to File Response to Plaintiffs Supplement to Motion for Class Certification by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 09/24/2010)
205 SEALED RESPONSE to Motion re 194 SEALED MOTION Plaintiffs' Supplement to Motion for Class Certification (Doc. 179) SEALED MOTION Plaintiffs' Supplement to Motion for Class Certification (Doc. 179) filed by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Davis, Robert) (Entered: 09/24/2010)
206 ORDER granting 204 Motion for Leave to File. Defendants may file, under seal, their Response to Plaintiffs Supplement to Motion for Class Certification. Signed by Judge T. John Ward on 9/27/10. (ehs, ) (Entered: 09/27/2010)
207 NOTICE of Hearing: Class Certification Hearing set for 10/13/2010 02:00 PM in Mag Ctrm (Marshall) before Judge T. John Ward. (bga, ) (Entered: 09/28/2010)
208 MEMORANDUM OPINION and ORDER denying Defendants Motion for Protection Against the Dissemination of Pretrial Discovery (Dkt. No. 188).. Signed by Judge T. John Ward on 10/5/10. (ehs, ) (Entered: 10/05/2010)
209 NOTICE of Hearing: Class Certification Hearing RESET for 11/9/2010 09:00 AM in Ctrm 106 (Marshall) before Judge T. John Ward. (bga, ) (Entered: 10/06/2010)
210 Joint MOTION Ruling on Abatement by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers. (Attachments: # 1 Text of Proposed Order)(Alderman, Galen) (Additional attachment(s) added on 10/27/2010: # 2 Plaintiff Proposed Order, # 3 Proposed Dft Order) (sm, ). (Entered: 10/26/2010)
211 NOTICE of Attorney Appearance by Brent Lee Watkins on behalf of City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers (Watkins, Brent) (Entered: 10/27/2010)
212 ORDER − pending before the court is the parties Joint Request for Ruling on Abatement 210 . Parties represent that they agreed to mediate this case on 11/4/2010 and 11/18/2010 and if necessary 12/14/2010. The court ORDERS that the class certification hearing will be held on 11/9/2010 as scheduled. The court furthered ORDERS that it will refrail from ruling on Plaintiffs Motion for Class Certification for a period of not less than 90 day to give the parties an opportunity to mediate this case. Signed by Judge T. John Ward on 10/27/2010. (ch, ) (Entered: 10/27/2010)
213 MOTION to Certify Class Plaintiffs' Second Supplement to Motion for Class Certification and Supplemental Brief in Anticipation of Hearing Set November 9, 2010 by James Morrow. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Garrigan, Timothy) (Entered: 11/03/2010)
214 RESPONSE in Opposition re 213 MOTION to Certify Class Plaintiffs' Second Supplement to Motion for Class Certification and Supplemental Brief in Anticipation of Hearing Set November 9, 2010 Joint Response by Defendants filed by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Danny Green, Shelby County District Attorney Linda K. Russell, Shelby

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 26 of 40

11/09/2010 11/15/2010 11/15/2010 11/23/2010 12/08/2010 01/11/2011 02/03/2011
02/18/2011 03/01/2011 03/04/2011 03/04/2011
03/10/2011
03/16/2011 03/25/2011

County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit 1 to Exhibit B)(Rook, Chad) (Entered: 11/08/2010)
215 Minute Entry for proceedings held before Judge T. John Ward: Class Certification Hearing held on 11/9/2010. (Court Reporter Shelly Holmes.) (bga, ) (Entered: 11/09/2010)
216 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers 10th Supplement (Alderman, Galen) (Entered: 11/15/2010)
217 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley 16th Supplemental (Davis, Robert) (Entered: 11/15/2010)
218 NOTICE of Disclosure by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers (Alderman, Galen) (Entered: 11/23/2010)
219 NOTICE of Disclosure by Danny Green, Shelby County Precinct 4 Constable Randy Whatley Seventeenth Supplemental (Davis, Robert) (Entered: 12/08/2010)
220 REPORT of Mediation by Harold Kip Glasscock, Jr. Mediation result: Impasse(Glasscock, Harold) (Entered: 01/11/2011)
221 RESPONSE in Opposition re 179 MOTION to Certify Class, 213 MOTION to Certify Class Plaintiffs' Second Supplement to Motion for Class Certification and Supplemental Brief in Anticipation of Hearing Set November 9, 2010, 194 SEALED MOTION Plaintiffs' Supplement to Motion for Class Certification (Doc. 179) SEALED MOTION Plaintiffs' Supplement to Motion for Class Certification (Doc. 179) (Defendants' Joint Supplementation to Response to Plaintiffs' Motion for Class Certification in Order to Advise Court of Recent United States Supreme Court Filings) filed by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A)(Rook, Chad) (Entered: 02/03/2011)
222 MOTION Award of Expenses Pursuant to Rules 26(c)(3) and 37(d), FRCP by James Morrow. (Attachments: # 1 Exhibit Garrigan Declaration, # 2 Exhibit Guillory Declaration, # 3 Exhibit Stephens Declaration, # 4 Text of Proposed Order)(Garrigan, Timothy) (Entered: 02/18/2011)
223 NOTICE of Disclosure by Shelby County District Attorney Linda K. Russell (Fifth Supplemental) (Henson, Walter) (Entered: 03/01/2011)
224 NOTICE of Disclosure by Shelby County District Attorney Linda K. Russell (Sixth Supplemental) (Henson, Walter) (Entered: 03/04/2011)
225 RESPONSE in Opposition re 222 MOTION Award of Expenses Pursuant to Rules 26(c)(3) and 37(d), FRCP MOTION Award of Expenses Pursuant to Rules 26(c)(3) and 37(d), FRCP filed by Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Rook, Chad) (Entered: 03/04/2011)
226 REPLY to Response to Motion re 222 MOTION Award of Expenses Pursuant to Rules 26(c)(3) and 37(d), FRCP MOTION Award of Expenses Pursuant to Rules 26(c)(3) and 37(d), FRCP Plaintiffs' Reply in Support of Motion for Award of Expenses (Dkt. 222) filed by James Morrow. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1)(Garrigan, Timothy) (Entered: 03/10/2011)
227 SUR−REPLY to Reply to Response to Motion re 222 MOTION Award of Expenses Pursuant to Rules 26(c)(3) and 37(d), FRCP MOTION Award of Expenses Pursuant to Rules 26(c)(3) and 37(d), FRCP filed by Shelby County Precinct 4 Constable Randy Whatley. (Rook, Chad) (Entered: 03/16/2011)
228 ORDER STAYING MOTION − the Court STAYS its decision on Plaintiffs Motion for Class Certification (Dkt. No. 179) until after the Supreme Court issues its ruling in Wal−Mart Stores, Inc. v. Dukes.. Signed by Judge T. John Ward on 3/25/11. (ehs, ) (Entered: 03/25/2011)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 27 of 40

06/15/2011 229 NOTICE of Discovery Disclosure by James Morrow Plaintiffs' Notice of Discovery Disclosure (Garrigan, Timothy) (Entered: 06/15/2011)
08/12/2011 230 ***DEFICIENT DOCUMENT, PLEASE IGNORE.***

08/12/2011 08/12/2011 08/23/2011 08/29/2011 08/31/2011
08/31/2011 09/21/2011
09/21/2011
10/04/2011 12/05/2011 12/19/2011

NOTICE by James Morrow re 179 MOTION to Certify Class letter brief (Garrigan, Timothy) Modified on 8/12/2011 (sm, ). (Entered: 08/12/2011)
NOTICE of DEFICIENCY regarding the #230 Notice submitted by James Morrow. Not in proper pleading format; no certificate of service included. Correction should be made by 1 business day and refiled. (sm, ) (Entered: 08/12/2011)
231 NOTICE by James Morrow re 179 MOTION to Certify Class letter brief (Attachments: # 1 Exhibit letter brief)(Garrigan, Timothy) (Entered: 08/12/2011)
232 NOTICE of Discovery Disclosure by James Morrow Plaintiffs' Notice of Discovery Disclosure (Garrigan, Timothy) (Entered: 08/23/2011)
233 MEMORANDUM OPINION AND ORDER − the Court ORDERS that the motion for class certification should be GRANTED−IN−PART and a Rule 23(b)(2) class certified for injunctive and declaratory relief as discussed herein. Signed by Judge T. John Ward on 8/29/2011. (ch, ) (Entered: 08/29/2011)
234 ORDER − The Court certified a class pursuant to Federal Rule of Evidence 23(b) (2) for injunctive and declaratory relief on August 29, 2011 233 . The pretrial hearing will be held on 8/29/2012 at 9:30 a.m. in United States District Court, 100 E. Houston Street, Marshall, Texas. The Court, sua sponte, ORDERS the parties to meet and confer and filed an agreed Docket Control Order and Discovery Order, consistent with the attached form Docket Control and Discovery Orders, not later than 21 days from the date of this Order. Pretrial Conference set for 8/29/2012 09:30 AM before Judge T. John Ward.. Signed by Judge T. John Ward on 8/31/2011. (ch, ) (Entered: 08/31/2011)
235 ORDER denying 222 Motion for Award of Expenses. Signed by Judge T. John Ward on 8/31/11. (ehs, ) (Entered: 08/31/2011)
236 Submission of Proposed Agreed Discovery order by Jennifer Boatwright, Amanee Busby, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Yuselff Dismukes, Linda Dorman, Ronald Henderson, James Morrow, Marvin Pearson, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley, Stephen Stuart Watson. (Rook, Chad) (Entered: 09/21/2011)
237 Submission of Proposed Agreed Docket Control/Scheduling order by Jennifer Boatwright, Amanee Busby, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Yuselff Dismukes, Linda Dorman, Ronald Henderson, James Morrow, Marvin Pearson, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley, Stephen Stuart Watson. (Rook, Chad) (Entered: 09/21/2011)
238 MISC. ORDER 11−1 REASSIGNING CASE. Case reassigned to Judge David Folsom for all further proceedings. Judge T. John Ward no longer assigned to case. Signed by Judge David Folsom on 10/3/2011. (ch, ) (Entered: 10/04/2011)
239 MOTION for Protective Order by Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Rook, Chad) (Entered: 12/05/2011)
240 RESPONSE in Opposition re 239 MOTION for Protective Order Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to Compel filed by James Morrow. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1, # 2 Exhibit Plaintiffs' Exhibit 2, # 3 Exhibit Plaintiffs' Exhibit 3, # 4 Exhibit Plaintiffs' Exhibit 4, # 5 Text of Proposed Order)(Garrigan, Timothy) (Entered: 12/19/2011)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 28 of 40

12/19/2011 12/20/2011 12/28/2011
01/12/2012 01/30/2012
01/30/2012 02/03/2012
02/07/2012
02/14/2012 04/05/2012 04/12/2012
04/12/2012 05/11/2012

241 Opposed MOTION to Compel Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to Compel by James Morrow. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Text of Proposed Order)(Garrigan, Timothy) (Entered: 12/19/2011)
Case reassigned to Judge Rodney Gilstrap re: misc order 11−2. Judge David Folsom no longer assigned to the case. (rvw, ) (Entered: 12/20/2011)
242 REPLY to Response to Motion re 241 Opposed MOTION to Compel Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to CompelOpposed MOTION to Compel Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to Compel filed by Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley. (Rook, Chad) (Entered: 12/28/2011)
Set/Reset Hearings: Pretrial Conference set for 8/29/2012 09:30 AM in Ctrm 106 (Marshall) before Judge Rodney Gilstrap. (bga, ) (Entered: 01/12/2012)
243 RESPONSE in Opposition re 241 Opposed MOTION to Compel Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to CompelOpposed MOTION to Compel Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to Compel, 239 MOTION for Protective Order Plaintiffs' Amended Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt. 239) and in Support of Plaintiffs' Motion to Compel filed by James Morrow. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Garrigan, Timothy) (Entered: 01/30/2012)
244 NOTICE from the USCA denying the petition for leave to appeal under Fed. R. Civ. P. 23(f) (ehs, ) (Entered: 01/30/2012)
245 REPLY to Response to Motion re 241 Opposed MOTION to Compel Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to CompelOpposed MOTION to Compel Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to Compel, 239 MOTION for Protective Order (Plaintiffs' Amended Response) filed by Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley. (Rook, Chad) (Entered: 02/03/2012)
246 SUR−REPLY to Reply to Response to Motion re 241 Opposed MOTION to Compel Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to CompelOpposed MOTION to Compel Plaintiffs' Response in Opposition to Defendants Green and Whatley's Motion for Protection (Dkt 239) and Plaintiffs' Motion to Compel, 239 MOTION for Protective Order Plaintiffs' Sur−Reply to Defendants Green and Whatley's February 3, 2012 Reply (Dkt 245) filed by James Morrow. (Garrigan, Timothy) (Entered: 02/07/2012)
247 NOTICE of Discovery Disclosure by James Morrow Plaintiffs' Notice of Disclosure (Garrigan, Timothy) (Entered: 02/14/2012)
248 STATUS REPORT by James Morrow. (Attachments: # 1 Exhibit)(Garrigan, Timothy) (Entered: 04/05/2012)
249 ORDER denying 239 Motion for Protective Order; granting 241 Motion to Compel. Defendants are ORDERED to produce relevant documents responsive to Plaintiffs production requests including, but not limited to, Shelby County District Clerks files on forfeiture actions and criminal prosecutions against class members within 21 calendar days from this date. Signed by Judge Rodney Gilstrap on 4/12/12. (ehs, ) (Entered: 04/12/2012)
250 NOTICE of Discovery Disclosure by Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley (18th Supplemental Disclosures) (Davis, Robert) (Entered: 04/12/2012)
NOTICE of Hearing: Jury Selection set for 9/4/2012 09:00 AM in Ctrm 106 (Marshall) before Judge Rodney Gilstrap. (bga, ) (Entered: 05/11/2012)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 29 of 40

05/15/2012 05/31/2012 06/11/2012 06/25/2012
06/26/2012 06/27/2012 06/27/2012 06/27/2012 06/27/2012 07/02/2012 07/02/2012 08/03/2012

NOTICE of Telephone Hearing: Status Teleconference set for 5/30/2012 10:00 AM (Marshall) before Judge Rodney Gilstrap. Plaintiff's counsel is responsible for setting up conference call. Contact the Court AFTER all parties have joined the call. The Court's conference telephone number is 903−938−8452.(bga, ) (Entered: 05/15/2012)
251 Minute Entry for proceedings held before Judge Rodney Gilstrap: Telephone Conference held on 5/31/2012. (Court Reporter Susan Simmons.) (bga, ) (Entered: 05/31/2012)
252 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson Notice of Departures from the Court's Docket Control Order and Discovery Order Forms (Attachments: # 1 Appendix Discovery Order, # 2 Appendix Docket Control Order)(Garrigan, Timothy) (Entered: 06/11/2012)
253 MOTION Abeyance of entry of proposed scheduling order pending settlement Joint Motion by Jennifer Boatwright, Amanee Busby, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Harold Kip Glasscock, Jr, Ronald Henderson, James Morrow, Marvin Pearson, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley, Stephen Stuart Watson. (Attachments: # 1 Text of Proposed Order Order)(Watkins, Brent) (Entered: 06/25/2012)
254 ORDER granting 253 Motion to Hold Entry of Proposed Scheduling Order in Abeyance Pending Settlement. The parties are ordered to promptly notify the Court if an agreement is not reached within 14 days of this order. Signed by Judge Rodney Gilstrap on 6/26/12. (ehs, ) (Entered: 06/26/2012)
255 APPLICATION to Appear Pro Hac Vice by Attorney, Ezekiel Edwards for pltfs, Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson. $100 Pro Hac Vice fee paid, Receipt No. 2−1164. (dlc, ) (Entered: 06/27/2012)
256 APPLICATION to Appear Pro Hac Vice by Attorney, Dennis D Parker for pltfs, Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson. $100 Pro Hac Vice fee paid, Receipt No. 2−1163. (dlc, ) (Entered: 06/27/2012)
257 APPLICATION to Appear Pro Hac Vice by Attorney, Elora Mukherjee for pltfs, Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson. $100 Pro Hac Vice fee paid, Receipt No. 2−1162. (dlc, ) (Entered: 06/27/2012)
258 APPLICATION (APPROVED) to Appear Pro Hac Vice by Attorney Sarah Hinger for Amanee Busby,Sarah Hinger for Yuselff Dismukes,Sarah Hinger for Linda Dorman,Sarah Hinger for Javier Flores,Sarah Hinger for William Flores,Sarah Hinger for Ronald Henderson,Sarah Hinger for James Morrow,Sarah Hinger for Marvin Pearson,Sarah Hinger for Stephen Stuart Watson. (pkb, ) (Entered: 06/27/2012)
259 APPLICATION (APPROVED) to Appear Pro Hac Vice by Attorney Jennifer Boatwright,Amanee Busby,Yuselff Dismukes,Linda Dorman,Javier Flores, William Flores, Ronald Henderson,James Morrow,Marvin Pearson and Stephen Stuart Watson. (pkb, ) (Entered: 07/03/2012)
262 APPLICATION (APPROVED) to Appear Pro Hac Vice Attorney Vanita Gupta for James Morrow, Stephen Stuart Watson, Amanee Busby, Yuselff Dismukes, Linda Dorman, Marvin Pearson, Jennifer Boatwright, Ronald Henderson, Javier Flores, William Flores(ch, ) (Entered: 08/07/2012)
260 ***DEFICIENT DOCUMENT, PLEASE IGNORE.***

Joint MOTION for Settlement Joint Motion for Preliminary Approval of Proposed Class Action Consent Decree, Approval of Notice, and Fairness Hearing by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 30 of 40

08/06/2012

Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson. (Attachments: # 1 Exhibit Exhibit 1 −− Proposed Consent Decree, # 2 Appendix Appendices A − F for Exhibit 1, # 3 Exhibit Exhibit 2 − Notice of Proposed Consent Decree, # 4 Exhibit Exhibit 3 − Mediator's Proposal, # 5 Text of Proposed Order Proposed Order Preliminarily Approving Consent Decree and Approving Notice)(Mukherjee, Elora) Modified on 8/6/2012 (sm, ). (Entered: 08/03/2012)
***DEFICIENT DOCUMENT, NO CERT OF CONFERENCE INCLUDED, ATTY MUST REFILE, MOTION NOW TERMINATED. Document # 260, Joint motion for settlement. PLEASE IGNORE.***

08/06/2012 08/06/2012 08/13/2012 08/17/2012
08/23/2012
08/28/2012 09/20/2012

(sm, ) (Entered: 08/06/2012)
261 Joint MOTION for Settlement Joint Motion for Preliminary Approval of the Proposed Consent Decree, Approval of Notice, and Fairness Hearing by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson. (Attachments: # 1 Exhibit 1 −− Proposed Consent Decree, # 2 Appendix Appendices A to F to Exhibit 1, # 3 Exhibit 2 − Notice of Proposed Consent Decree, # 4 Exhibit 3 − Mediator's Agreement, # 5 Text of Proposed Order Proposed Order, # 6 Certificate of Service, # 7 Certficate of Conference)(Mukherjee, Elora) (Entered: 08/06/2012)
263 APPLICATION to Appear Pro Hac Vice by Attorney Rebecca L Robertson for Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, and for Stephen Stuart Watson. $100 Pro Hac Vice fee paid, receipt no. 02−1250. (dlc, ) (Entered: 08/07/2012)
264 Opposed MOTION Modify Joint Motion for Preliminary Approval of the Class Action Consent Decree re 261 Joint MOTION for Settlement Joint Motion for Preliminary Approval of the Proposed Consent Decree, Approval of Notice, and Fairness Hearing by Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 08/13/2012)
265 RESPONSE in Opposition re 264 Opposed MOTION Modify Joint Motion for Preliminary Approval of the Class Action Consent Decree re 261 Joint MOTION for Settlement Joint Motion for Preliminary Approval of the Proposed Consent Decree, Approval of Notice, and Fairness HearingOpposed MOTION Modify Joint Motion for Preliminary Approval of the Class Action Consent Decree re 261 Joint MOTION for Settlement Joint Motion for Preliminary Approval of the Proposed Consent Decree, Approval of Notice, and Fairness Hearing filed by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson. (Attachments: # 1 Exhibit Attachments 1 to 5, # 2 Text of Proposed Order)(Mukherjee, Elora) (Entered: 08/17/2012)
266 REPLY to Response to Motion re 264 Opposed MOTION Modify Joint Motion for Preliminary Approval of the Class Action Consent Decree re 261 Joint MOTION for Settlement Joint Motion for Preliminary Approval of the Proposed Consent Decree, Approval of Notice, and Fairness HearingOpposed MOTION Modify Joint Motion for Preliminary Approval of the Class Action Consent Decree re 261 Joint MOTION for Settlement Joint Motion for Preliminary Approval of the Proposed Consent Decree, Approval of Notice, and Fairness Hearing, 261 Joint MOTION for Settlement Joint Motion for Preliminary Approval of the Proposed Consent Decree, Approval of Notice, and Fairness Hearing filed by Shelby County Precinct 4 Constable Randy Whatley. (Rook, Chad) (Entered: 08/23/2012)
NOTICE of TERMINATED Hearings: Jury Selection set for 9/4/2012 09:00AM before Judge Rodney Gilstrap and Pretrial Conference set for 8/29/2012 09:30 AM before Judge Rodney Gilstrap are TERMINATED pending settlement. (bga, ) (Entered: 08/28/2012)
267 ***DEFICIENT DOCUMENT, PLEASE IGNORE***NOTICE by Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley (Vacation notification) (Rook, Chad) Modified on 9/21/2012 (sm, ). (Entered: 09/20/2012)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 31 of 40

09/21/2012 09/21/2012 02/19/2013 02/19/2013 03/01/2013
03/07/2013
04/19/2013 05/01/2013 07/29/2013
07/30/2013 08/02/2013 08/07/2013

NOTICE of DEFICIENCY regarding the #267 Notice of vacation submitted by Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. Not in proper pleading format (Double spaced, cert of service). (sm, ) (Entered: 09/21/2012)
268 NOTICE by Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley (Vacation notification Revised) (Rook, Chad) (Entered: 09/21/2012)
269 ORDER granting 261 Motion for Settlement, Preliminary approval of class action consent decree. Signed by Judge Rodney Gilstrap on 2/19/2013. (sm, ) (Entered: 02/19/2013)
270 ORDER denying 264 Motion to modify proposed consent decree. Signed by Judge Rodney Gilstrap on 2/19/2013. (sm, ) (Entered: 02/19/2013)
271 MOTION for Moderate Extension of Deadlines Contained in Order Granting Preliminary Approval of the Class (Doc. #269) re 269 Order on Motion for Settlement by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 03/01/2013)
272 ORDER granting 271 Motion extention of deadlines. The Motion for Moderate Extension of Deadlines Contained in Order Granting Preliminary Approval of the Class is GRANTED and provisions 4−7 of the Order Granting Preliminary Approval of the Class (Doc. #269) are extended by an additional twenty−one (21) days from their original deadline. Signed by Judge Rodney Gilstrap on 3/6/13. (ehs, ) (Entered: 03/07/2013)
273 NOTICE by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley of Compliance (Attachments: # 1 Exhibit Affidavit of Mier)(Watkins, Brent) (Entered: 04/19/2013)
274 NOTICE by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley of Compliance (Attachments: # 1 Exhibit Affidavit of Kim Schmidt)(Watkins, Brent) (Entered: 05/01/2013)
275 NOTICE of Readiness by Jennifer Boatwright, Amanee Busby, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley, Stephen Stuart Watson (Watkins, Brent) (Entered: 07/29/2013)
NOTICE of Hearing: Fairness/Motion Hearing set for 8/2/2013 09:00 AM in Ctrm 106 (Marshall) before Judge Rodney Gilstrap. (jml) (Entered: 07/30/2013)
277 Minute Entry for proceedings held before Judge Rodney Gilstrap: Motion/Fairness Hearing held on 8/2/2013 re 276 Joint MOTION for Entry of Order Approving Settlement Agreement and Consent Decree. (Court Reporter Shelly Holmes, CSR.) (Attachments: # 1 Attorney Attendance Sheet, # 2 Exhibit Declaration) (jml) (Entered: 08/07/2013)
276 Joint MOTION for Entry of Order Approving Settlement Agreement and Consent Decree by Jennifer Boatwright, Amanee Busby, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley, Stephen Stuart Watson. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A to Order)(Rook, Chad) (Entered: 08/07/2013)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 32 of 40

08/08/2013
08/08/2013 09/16/2013 10/07/2013
10/07/2013

278 ORDER granting 276 Motion − the proposed Settlement Agreement and Consent Decree is fair, just, adequate and reasonable for all parties. The Court ORDERS counsel for Shelby County to provide the Court and all counsel of record with notice of the status of execution of such agreement no more than forty−five (45) days from this date. Signed by Judge Rodney Gilstrap on 8/8/13. (ehs, ) (Additional attachment(s) added on 10/8/2013: # 1 Exhibit A −− ADDED PER COURT'S INSTRUCTION) (jml, ). Modified on 10/8/2013 (jml, ). (Entered: 08/08/2013)
279 NOTICE by Shelby County Precinct 4 Constable Randy Whatley re 278 Order on Motion for Miscellaneous Relief, (Advisory to Court) (Rook, Chad) (Entered: 08/08/2013)
280 NOTICE by Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley re 278 Order on Motion for Miscellaneous Relief, (Advisory to Court re Section VI.H of SA and Consent Decree) (Rook, Chad) (Entered: 09/16/2013)
281 ***FILED IN ERROR, PLEASE IGNORE***NOTICE by Jennifer Boatwright, Amanee Busby, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley, Stephen Stuart Watson (Joint Nomination of Monitor) (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Rook, Chad) Modified on 10/7/2013 (sm, ). (Entered: 10/07/2013)
***FILED IN ERROR, WRONG EVENT USED, ATTY MUST REFILE. Document # 281, Notice. PLEASE IGNORE.***

10/07/2013
10/09/2013 10/31/2014

(sm, ) (Entered: 10/07/2013)
282 Joint MOTION Appoint Monitor re 261 Joint MOTION for Settlement Joint Motion for Preliminary Approval of the Proposed Consent Decree, Approval of Notice, and Fairness Hearing (Nomination of Monitor) by Jennifer Boatwright, Amanee Busby, City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Shelby County District Attorney Investigator Danny Green, Shelby County District Attorney Linda K. Russell, Shelby County Precinct 4 Constable Randy Whatley, Stephen Stuart Watson. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Rook, Chad) (Entered: 10/07/2013)
283 ORDER granting 282 Joint Nomination of Monitor. Joe Evans is appointed as Monitor. Signed by Judge Rodney Gilstrap on 10/9/2013. (ch, ) (Entered: 10/09/2013)
284 DEFICIENT DOCUMENT − FILED IN ERROR

10/31/2014 10/31/2014
06/02/2015

NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson First Quarterly Monitor's Report (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Garrigan, Timothy) Modified on 10/31/2014 (nkl, ). (Entered: 10/31/2014)
NOTICE of Deficiency regarding the Notice submitted document 284 does not contain a Certificate of Service. Correction should be made by one business day. (nkl, ) (Entered: 10/31/2014)
285 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson Notice of First Quarterly Monitor's Report (Attachments: # 1 Supplement 1st Quarterly Monitor's Report, # 2 Exhibit 1 to the Monitor's Report, # 3 Exhibit 2 to the Monitor's Report, # 4 Exhibit 3 to the Monitor's Report, # 5 Exhibit 4 to the Monitor's Report, # 6 Exhibit 5 to the Monitor's Report, # 7 Exhibit 6 to the Monitor's Report, # 8 Exhibit 7 to the Monitor's Report)(Garrigan, Timothy) (Entered: 10/31/2014)
286 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson re 278 Order on Motion for Miscellaneous Relief,, Notice of

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 33 of 40

06/10/2015 06/12/2015 10/15/2015
12/15/2015

Second Quarterly Monitor's Report (Attachments: # 1 Exhibit Second Quarterly Monitor's Report)(Garrigan, Timothy) (Entered: 06/02/2015)
287 MOTION to Withdraw as Attorney Additional Counsel by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers. (Attachments: # 1 Text of Proposed Order)(Watkins, Brent) (Entered: 06/10/2015)
288 ORDER granting 287 Motion to Withdraw as Attorney. Attorney Brent Lee Watkins terminated. Signed by Judge Rodney Gilstrap on 06/11/2015. (nkl, ) (Entered: 06/12/2015)
289 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson re 278 Order on Motion for Miscellaneous Relief,, (Attachments: # 1 Third Quarterly Report, # 2 Exhibit Attachment to Third Quarterly Report)(Garrigan, Timothy) (Entered: 10/15/2015)
290 FILED IN ERROR PER ATTORNEY

12/15/2015

NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson re 278 Order on Motion for Miscellaneous Relief,, Notice of Fourth Quarterly Monitor's Report (Attachments: # 1 Supplement)(Garrigan, Timothy) Modified on 12/16/2015 (nkl, ). (Entered: 12/15/2015)
291 FILED IN ERROR PER ATTORNEY

12/16/2015

Additional Attachments to Main Document: 278 Order on Motion for Miscellaneous Relief,, 290 Notice (Other),.. (Attachments: # 1 Supplement Attachments to Fourth Quarterly Monitor's Report)(Garrigan, Timothy) Modified on 12/16/2015 (nkl, ). (Entered: 12/15/2015)
***FILED IN ERROR PER ATTORNEY. Document # 290 and 291, Notice and Additional Attachments to Main Document. PLEASE IGNORE.***

12/16/2015 03/30/2016

(nkl, ) (Entered: 12/16/2015)
292 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson re 278 Order on Motion for Miscellaneous Relief,, Corrected Notice of Fourth Quarterly Monitor's Report (Attachments: # 1 Supplement Fourth Quarterly Monitor's Report)(Garrigan, Timothy) (Entered: 12/16/2015)
293 DEFICIENT DOCUMENT

03/30/2016 03/30/2016 06/08/2016

NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson Fifth Monitor's Quarterly Report (Garrigan, Timothy) Modified on 3/30/2016 (nkl, ). (Entered: 03/30/2016)
NOTICE of Deficiency regarding the Notice submitted document 293 does not contain a Certificate of Service and is not filed in the correct notice format. Correction should be made by one business day. (nkl, ) (Entered: 03/30/2016)
294 NOTICE by Joe Evans re 278 Order on Motion for Miscellaneous Relief,, (Attachments: # 1 Corrected Fifth Monitor's Quarterly Report)(Garrigan, Timothy) (Entered: 03/30/2016)
295 DEFICIENT DOCUMENT

06/08/2016

MOTION to Withdraw as Attorney by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers. (Attachments: # 1 Text of Proposed Order)(Alderman, Galen) Modified on 6/8/2016 (nkl, ). (Entered: 06/08/2016)
296 MOTION to Withdraw as Attorney by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers. (Attachments: # 1 Text of Proposed Order)(Alderman, Galen) (Entered: 06/08/2016)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 34 of 40

06/08/2016 06/08/2016 06/09/2016 06/15/2016 09/21/2016 09/21/2016 09/26/2016
10/07/2016
10/12/2016 10/24/2016 10/24/2016
11/02/2016
01/06/2017 03/30/2017 04/26/2017

NOTICE of Deficiency regarding the MOTION to Withdraw as Attorney submitted document 295 is not in compliance with Local Rule CV 7(a). Correction should be made by one business day. (nkl, ) (Entered: 06/08/2016)
297 MOTION to Withdraw as Attorney by City of Tenaha Deputy City Marshal Barry Washington, City of Tenaha Mayor George Bowers. (Attachments: # 1 Text of Proposed Order)(Alderman, Galen) (Entered: 06/08/2016)
298 ORDER granting 297 Motion to Withdraw as Attorney. Attorney Galen Robert Alderman, Jr terminated. Signed by Judge Rodney Gilstrap on 06/09/2016. (nkl, ) (Entered: 06/09/2016)
299 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Joe Evans, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson Vacation Letter (Garrigan, Timothy) (Entered: 06/15/2016)
300 NOTICE by Joe Evans of 6th Quarterly Report (Attachments: # 1 Supplement 6th QMR − Monitor's Report, # 2 Supplement 6th QMR − Attachments)(Garrigan, Timothy) (Entered: 09/21/2016)
301 NOTICE by Joe Evans of 7th Quarterly Report (Attachments: # 1 Supplement 7th QMR − Monitor's Report, # 2 Supplement 7th QMR − Attachments)(Garrigan, Timothy) (Entered: 09/21/2016)
302 Opposed MOTION for Attorney Fees and Expenses for the Period of September 10, 2013 to August 31, 2016 by James Morrow. (Attachments: # 1 Exhibit Declaration of Timothy B. Garrigan, # 2 Exhibit Declaration of Otis Carroll, # 3 Exhibit Timesheets for Tim Garrigan, # 4 Exhibit Expense Sheet, # 5 Text of Proposed Order [Proposed] Order Granting the Motion)(Garrigan, Timothy) (Entered: 09/26/2016)
303 Unopposed MOTION for Extension of Time to File Response/Reply as to 302 Opposed MOTION for Attorney Fees and Expenses for the Period of September 10, 2013 to August 31, 2016 (Leave to Extend Response Date) by Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 10/07/2016)
304 ORDER granting 303 Motion for Extension of Time to File Response/Reply re 302 Opposed MOTION for Attorney Fees and Expenses for the Period of September 10, 2013 to August 31, 2016 Responses due by 10/24/2016. Signed by Judge Rodney Gilstrap on 10/11/2016. (nkl, ) (Entered: 10/12/2016)
305 NOTICE of Attorney Appearance by Galen Robert Alderman, Jr on behalf of City of Tenaha Mayor George Bowers (Alderman, Galen) (Entered: 10/24/2016)
306 RESPONSE in Opposition re 302 Opposed MOTION for Attorney Fees and Expenses for the Period of September 10, 2013 to August 31, 2016 filed by City of Tenaha Mayor George Bowers, Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Rook, Chad) (Entered: 10/24/2016)
307 REPLY to Response to Motion re 302 Opposed MOTION for Attorney Fees and Expenses for the Period of September 10, 2013 to August 31, 2016 filed by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson. (Garrigan, Timothy) (Entered: 11/02/2016)
308 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson of the Filing of the Eighth Quarterly Monitor's Report (Attachments: # 1 Exhibit Quarterly Report)(Craig, Timothy) (Entered: 01/06/2017)
309 ORDER finding as moot 296 Motion to Withdraw as Attorney.. Signed by Judge Rodney Gilstrap on 03/30/2017. (nkl, ) (Entered: 03/30/2017)
310 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson OF NINTH QUARTERLY MONITORS REPORT (Attachments:

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 35 of 40

06/02/2017 06/12/2017 06/13/2017 07/31/2017 07/31/2017 08/07/2017 08/18/2017
08/21/2017 08/21/2017 08/22/2017

# 1 Exhibit Monitor's 9th Quarterly Report)(Garrigan, Timothy) (Entered: 04/26/2017)
NOTICE of Hearing on Motion 302 Opposed MOTION for Attorney Fees and Expenses for the Period of September 10, 2013 to August 31, 2016 : Motion Hearing set for 6/12/2017 01:30 PM in Ctrm 106 (Marshall) before Judge Rodney Gilstrap. (jml) (Entered: 06/02/2017)
311 Minute Entry for proceedings held before Judge Rodney Gilstrap: Motion Hearing held on 6/12/2017 re 302 Opposed MOTION for Attorney Fees and Expenses for the Period of September 10, 2013 to August 31, 2016 filed by James Morrow. (Court Reporter Shelly Holmes, CSR−TCRR.) (jml) (Entered: 06/13/2017)
312 ORDER for Notice Pursuant to 23(h). Signed by Judge Rodney Gilstrap on 06/13/2017. (nkl, ) (Entered: 06/13/2017)
313 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson of filing of 10th QMR (Attachments: # 1 Exhibit 10Q Report)(Garrigan, Timothy) (Entered: 07/31/2017)
314 Additional Attachments to Main Document: 313 Notice (Other).. (Attachments: # 1 racial profiling reports)(Garrigan, Timothy) (Entered: 07/31/2017)
315 MOTION for extension of decree by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson. (Attachments: # 1 Text of Proposed Order PROPOSED ORDER)(Garrigan, Timothy) (Entered: 08/07/2017)
316 Unopposed MOTION for Leave to File Response to Plaintiffs' Motion to Extend Duration of Consent Decree (for Extension of Time to File) by Shelby County District Attorney Investigator Danny Green, Shelby County Precinct 4 Constable Randy Whatley. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 08/18/2017)
317 MOTION for Extension of Time to File Response/Reply as to 315 MOTION for extension of decree by City of Tenaha Mayor George Bowers. (Attachments: # 1 Text of Proposed Order)(Alderman, Galen) (Entered: 08/21/2017)
318 ORDER granting 316 Motion for Leave for Extension of Time to File Response to Plaintiffs Motion to Extend Duration of Consent Decree. Signed by Judge Rodney Gilstrap on 8/21/2017. (nkl, ) (Entered: 08/22/2017)
319 FILED IN ERROR PER ATTORNEY

08/22/2017 08/22/2017

NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson re 312 Order Declaration regarding compliance with order (Attachments: # 1 Exhibit Class Notice re: fees)(Garrigan, Timothy) Modified on 8/22/2017 (nkl, ). (Entered: 08/22/2017)
320 ORDER granting 317 Motion for Extension of Time to File Response/Reply re 315 MOTION for extension of decree Responses due by 9/5/2017. Signed by Judge Rodney Gilstrap on 8/22/2017. (nkl, ) (Entered: 08/22/2017)
***FILED IN ERROR PER ATTORNEY. Document # 319, NOTICE. PLEASE IGNORE.***

08/22/2017 08/22/2017

(nkl, ) (Entered: 08/22/2017)
321 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson re 312 Order Declaration regarding compliance with Order (Attachments: # 1 Exhibit Class Notice re: fees)(Garrigan, Timothy) (Entered: 08/22/2017)
322 NOTICE by Jennifer Boatwright, Amanee Busby, Yuselff Dismukes, Linda Dorman, Joe Evans, Javier Flores, William Flores, Ronald Henderson, James Morrow, Marvin Pearson, Stephen Stuart Watson re 302 Opposed MOTION for Attorney Fees and

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 36 of 40

08/25/2017 09/05/2017 09/05/2017 09/12/2017 09/19/2017 11/15/2017 04/18/2018 04/18/2018 05/01/2018 09/11/2018 09/25/2018
09/25/2018
09/26/2018

Expenses for the Period of September 10, 2013 to August 31, 2016 Notice re: 6.12.17 hearing (Garrigan, Timothy) (Entered: 08/22/2017)
323 NOTICE by City of Tenaha Mayor re 321 Notice (Other), Notice Supplement Declaration (Alderman, Galen) (Entered: 08/25/2017)
324 RESPONSE in Opposition re 315 MOTION for extension of decree filed by Shelby County. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Rook, Chad) (Entered: 09/05/2017)
325 RESPONSE in Opposition re 315 MOTION for extension of decree filed by City of Tenaha Mayor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Alderman, Galen) (Entered: 09/05/2017)
326 REPLY to Response to Motion re 315 MOTION for extension of decree filed by James Morrow. (Garrigan, Timothy) (Entered: 09/12/2017)
327 SUR−REPLY to Reply to Response to Motion re 315 MOTION for extension of decree filed by City of Tenaha Mayor, Shelby County. (Alderman, Galen) (Entered: 09/19/2017)
328 ORDER granting 302 Motion for Attorney Fees and Expenses for the Period of September 10, 2013 to August 31, 2016. Signed by District Judge Rodney Gilstrap on 11/15/2017. (nkl, ) (Entered: 11/15/2017)
329 NOTICE of Attorney Appearance by Erika Leigh Neill on behalf of City of Tenaha Mayor (Neill, Erika) (Entered: 04/18/2018)
330 First MOTION for Leave to File Supplement to Mo to expand duration of decree by James Morrow. (Attachments: # 1 Supplement document sought to be filed, # 2 Exhibit referred to as attachment, # 3 Text of Proposed Order)(Garrigan, Timothy) (Entered: 04/18/2018)
331 RESPONSE to Motion re 330 First MOTION for Leave to File Supplement to Mo to expand duration of decree filed by City of Tenaha Mayor. (Neill, Erika) (Entered: 05/01/2018)
NOTICE of Hearing on Motions 315 MOTION for extension of decree , 330 First MOTION for Leave to File Supplement to Mo to expand duration of decree : Motion Hearing set for 9/25/2018 01:30 PM in Ctrm 106 (Marshall) before District Judge Rodney Gilstrap. (jml) (Entered: 09/11/2018)
332 ***FILED IN ERROR. PLEASE IGNORE. PLEASE SEE DOCUMENT #336***Minute Entry for proceedings held before District Judge Rodney Gilstrap: Motion Hearing held on 9/25/2018 re 330 First MOTION for Leave to File Supplement to Mo to expand duration of decree filed by James Morrow, (Evidentiary Hearing set for 11/1/2018 01:30 PM in Ctrm 106 (Marshall) before District Judge Rodney Gilstrap.) (Court Reporter Shelly Holmes, CSR−TCRR.) (Attachments: # 1 Attorney Attendance Sheet) (jml) Modified on 9/28/2018 (klc, ). (Entered: 09/25/2018)
336 Minute Entry for proceedings held before District Judge Rodney Gilstrap: Motion Hearing held on 9/25/2018 re 330 First MOTION for Leave to File Supplement to Mo to expand duration of decree filed by James Morrow.(Evidentiary Hearing set for 11/1/2018 01:30 PM in Ctrm 106 (Marshall before District Judge Rodney Gilstrap. Court Reporter Shelly Holmes.) (Attachments: # 1 Appendix Attorney Attendance Sheet) (klc, ) (Entered: 09/28/2018)
333 FILED IN ERROR

09/26/2018

ORDER Setting Hearing on Motion 315 Opposed Motion to Extend Duration of the Decree. Motion Hearing set for 11/1/2018 01:30 PM in Ctrm 106 (Marshall) before District Judge Rodney Gilstrap. Granting 330 First MOTION for Leave to File Supplement to Mo to expand duration of decree. Signed by District Judge Rodney Gilstrap on 9/26/2018. (ch, ) Modified on 9/27/2018 (nkl, ). (Entered: 09/26/2018)
334 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 9/25/18 (Motion Hearing) before Judge Rodney Gilstrap. Court Reporter/Transcriber: Shelly Holmes, CSR, TCRR,Telephone number: (903) 923−7464

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 37 of 40

(Shelly_Holmes@txed.uscourts.gov).

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

09/26/2018 09/27/2018

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Motion to Redact due 10/17/2018. Release of Transcript Restriction set for 12/25/2018. (sholmes, ) (Entered: 09/26/2018)
335 ORDER Setting Hearing on Motion 315 MOTION for extension of decree : Motion Hearing set for 11/1/2018 01:30 PM in Ctrm 106 (Marshall) before District Judge Rodney Gilstrap. Granting 330 First MOTION for Leave to File Supplement to Mo to expand duration of decree.. Signed by District Judge Rodney Gilstrap on 9/26/2018. (nkl, ) (Entered: 09/27/2018)
***FILED IN ERROR. Document # 333, ORDER Setting Hearing on Motion. PLEASE IGNORE.***

10/02/2018 10/02/2018 10/02/2018 10/02/2018 10/02/2018 10/09/2018 10/10/2018 10/10/2018 10/24/2018
10/31/2018 11/01/2018
11/02/2018

(nkl, ) (Entered: 09/27/2018)
337 NOTICE by Joe Evans filing 11 QMR at request of JE (Attachments: # 1 Exhibit)(Garrigan, Timothy) (Entered: 10/02/2018)
338 NOTICE by Joe Evans filing 12 QMR at JE request (Attachments: # 1 Exhibit)(Garrigan, Timothy) (Entered: 10/02/2018)
339 NOTICE by Joe Evans filing of 13 QMR at JE request (Attachments: # 1 Exhibit)(Garrigan, Timothy) (Entered: 10/02/2018)
340 NOTICE by Joe Evans filing of 14 QMR at JE request (Attachments: # 1 Exhibit)(Garrigan, Timothy) (Entered: 10/02/2018)
341 NOTICE by Joe Evans 15 QMR filed at JE request (Attachments: # 1 Exhibit)(Garrigan, Timothy) (Entered: 10/02/2018)
342 NOTICE by Joe Evans 16th QMR filed at JE request (Attachments: # 1 Exhibit Attachments to 16th QMR)(Rook, Chad) (Entered: 10/09/2018)
343 NOTICE by Shelby County re 335 Order Setting Hearing on Motion, (of Compliance) (Rook, Chad) (Entered: 10/10/2018)
344 NOTICE by City of Tenaha Mayor re 335 Order Setting Hearing on Motion, of Compliance (Neill, Erika) (Entered: 10/10/2018)
NOTICE of Hearing on Motion 315 MOTION for extension of decree : Motion Hearing RESET for 11/1/2018 02:00 PM in Ctrm 106 (Marshall) before District Judge Rodney Gilstrap. Mr. Chad Rook and Ms. Erika Neill are directed to notify the office holders referenced in 335 of the TIME change.***(jml) (Entered: 10/24/2018)
345 NOTICE of Attorney Appearance by Timothy David Craig on behalf of All Plaintiffs (Craig, Timothy) (Entered: 10/31/2018)
347 Minute Entry for proceedings held before District Judge Rodney Gilstrap: Motion Hearing held on 11/1/2018 re 315 MOTION for extension of decree filed by Yuselff Dismukes, James Morrow, Ronald Henderson, Stephen Stuart Watson, Marvin Pearson, Jennifer Boatwright, Amanee Busby, Linda Dorman. (Court Reporter Shelly Holmes, CSR−TCRR.) (Attachments: # 1 Attorney Attendance Sheet) (jml) (Entered: 11/02/2018)
346 VACATED PER ORDER 350

ORDER re Hearing held on 11/1/2018. Signed by District Judge Rodney Gilstrap on 11/1/2018. (nkl, ) Modified on 11/8/2018 (nkl, ). (Entered: 11/02/2018)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 38 of 40

11/02/2018 11/06/2018 11/07/2018 11/20/2018
12/05/2018 12/06/2018 12/13/2018 12/13/2018 12/13/2018 12/13/2018 12/14/2018
12/14/2018 12/14/2018 12/14/2018

348 Exhibit List plaintiffs', for 11.1.18 hrg by James Morrow.. (Garrigan, Timothy) (Entered: 11/02/2018)
349 Joint MOTION for Extension of Time to File Supplemental Briefing by City of Tenaha Mayor. (Attachments: # 1 Text of Proposed Order)(Neill, Erika) (Entered: 11/06/2018)
350 ORDER granting 349 Motion for Extension of Time to File. The Court VACATES its prior order for supplemental briefing 346 but ORDERS the Parties to submit their comprehensive settlement agreement extending the Consent Decree by December 6, 2018. Signed by District Judge Rodney Gilstrap on 11/07/2018.(jrgintern2, ) Modified on 11/8/2018 (nkl, ). (Entered: 11/07/2018)
351 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11/1/18 (Motion Hearing) before Judge Rodney Gilstrap. Court Reporter/Transcriber: Shelly Holmes, CSR, TCRR,Telephone number: (903) 923−7464 (Shelly_Holmes@txed.uscourts.gov). <P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov<P> Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Motion to Redact due 12/11/2018. Release of Transcript Restriction set for 2/18/2019. (sholmes, ) (Entered: 11/20/2018)
352 MOTION for Extension of Time to File Settlement Agreement and Joint Request to Appoint Monitor by City of Tenaha Mayor. (Attachments: # 1 Text of Proposed Order)(Neill, Erika) (Entered: 12/05/2018)
353 ORDER granting 352 Motion for Extension of Time to File Settlement Agreement and Joint Request to Appoint Monitor. Signed by District Judge Rodney Gilstrap on 12/5/2018. (nkl, ) (Entered: 12/06/2018)
354 Joint MOTION for Settlement Joint Mtn for Approval of the Settlement Agreement on Additional Duration of Consent Decree and Approval of Class Notice by City of Tenaha Mayor. (Attachments: # 1 Exhibit 1, # 2 Attachment to Ex. 1, # 3 Exhibit 2, # 4 Text of Proposed Order)(Neill, Erika) (Entered: 12/13/2018)
355 BRIEF filed Brief in Support of Settlement Terms by City of Tenaha Mayor. (Neill, Erika) (Entered: 12/13/2018)
356 BRIEF filed in Support of Settlement Agreement on Additional Duration of Consent Decree by Shelby County. (Rook, Chad) (Entered: 12/13/2018)
357 RESPONSE in Support re 315 MOTION for extension of decree post hearing brief filed by James Morrow. (Garrigan, Timothy) (Entered: 12/13/2018)
NOTICE of Hearing: TELEPHONIC Status Conference set for 12/14/2018 02:30 PM before District Judge Rodney Gilstrap. ***The Court's telephone number is (903) 938−8452. The parties are to contact the Court AFTER all parties have joined the call. Participants should use a landline phone connection. Cell phones are not to be used unless prior leave is granted by the Court, which leave will only be granted in exceptional circumstances.***(jml) (Entered: 12/14/2018)
Minute Entry for proceedings held before District Judge Rodney Gilstrap: TELEPHONIC Status Conference held on 12/14/2018. The Court held the conference to discuss the status of the case. Ms. Neill and Messrs. Garrigan, Rook and Bales participated in the conference. (Court Reporter Shelly Holmes, CSR−TCRR.) (jml) (Entered: 12/14/2018)
358 ORDER re 354 Joint MOTION for Settlement Joint Mtn for Approval of the Settlement Agreement on Additional Duration of Consent Decree and Approval of Class Notice filed by City of Tenaha Mayor. Signed by District Judge Rodney Gilstrap on 12/14/2018. (Attachments: # 1 Exhibit)(nkl, ) (Entered: 12/14/2018)
359 NOTICE of Correction to Document 357 Response in Support of Motion (klc, ) (Entered: 12/17/2018)

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 39 of 40

01/11/2019 01/18/2019 01/24/2019 01/24/2019
10/25/2019
11/07/2019 11/12/2019 11/15/2019 11/15/2019 11/19/2019 11/19/2019

360 STATUS REPORT Declaration of TBG Compliance with Class Notice by James Morrow. (Garrigan, Timothy) (Entered: 01/11/2019)
361 SETTLEMENT AGREEMENT (Order Approving Amended Settlement Agreement and Consent Decree for Additional Term (Amending Document No. 278−1) by Shelby County. (Attachments: # 1 Exhibit A)(Davis, Robert) (Entered: 01/18/2019)
362 ORDER finding as moot 315 Motion to Extend Duration of Decree. Signed by District Judge Rodney Gilstrap on 1/24/2019. (nkl, ) (Entered: 01/24/2019)
363 ORDER re 354 Joint MOTION for Settlement Joint Mtn for Approval of the Settlement Agreement on Additional Duration of Consent Decree and Approval of Class Notice filed by City of Tenaha Mayor 361 Settlement Agreement filed by Shelby County. Signed by District Judge Rodney Gilstrap on 1/24/2019. (Attachments: # 1 Exhibit A)(nkl, ) (Entered: 01/24/2019)
364 Opposed MOTION for Attorney Fees Incurred by Plaintiffs from September 2016 − April 2019 by James Morrow. (Attachments: # 1 Exhibit Declaration of Timothy B. Garrigan, Attachment 1: 2016−2019 Timesheets, Attachment 2: Expenses, # 2 Exhibit Declaration of Timothy David Craig, Attachment 1: 2016−2019 Timesheets, # 3 Exhibit Declaration of Otis Carroll)(Garrigan, Timothy) (Additional attachment(s) added on 10/28/2019: # 4 Text of Proposed Order) (nkl, ). (Entered: 10/25/2019)
365 Unopposed MOTION for Extension of Time to File Response/Reply by City of Tenaha Mayor. (Attachments: # 1 Text of Proposed Order)(Neill, Erika) (Entered: 11/07/2019)
366 ORDER granting 365 Motion for Extension of Time to File Response/Reply. Signed by District Judge Rodney Gilstrap on 11/12/2019. (nkl, ) (Entered: 11/12/2019)
367 RESPONSE to Motion re 364 Opposed MOTION for Attorney Fees Incurred by Plaintiffs from September 2016 − April 2019 filed by City of Tenaha Mayor. (Attachments: # 1 Exhibit A)(Neill, Erika) (Entered: 11/15/2019)
368 RESPONSE in Opposition re 364 Opposed MOTION for Attorney Fees Incurred by Plaintiffs from September 2016 − April 2019 (and Request for Evidentiary Hearing) filed by Shelby County. (Rook, Chad) (Entered: 11/15/2019)
369 Joint MOTION for Approval of Notice to Class for Potential Award of Attorneys' Fees by City of Tenaha Mayor. (Attachments: # 1 Exhibit A)(Neill, Erika) (Additional attachment(s) added on 11/20/2019: # 2 Text of Proposed Order) (nkl, ). (Entered: 11/19/2019)
370 FILED IN ERROR

11/20/2019

Additional Attachments to Main Document: 369 Joint MOTION for Approval of Notice to Class for Potential Award of Attorneys' Fees.. (Neill, Erika) Modified on 11/20/2019 (nkl, ). (Entered: 11/19/2019)
***FILED IN ERROR − a proposed order should not be filed on the docket as a separate entry. Document # 370, Additional Attachments to Main Document. PLEASE IGNORE.***

11/22/2019 11/22/2019 11/22/2019 12/06/2019

(nkl, ) (Entered: 11/20/2019)
371 ORDER granting 369 Motion for Approval of Notice to Class for Potential Award of Attorneys' Fees. Signed by District Judge Rodney Gilstrap on 11/21/2019. (nkl, ) (Entered: 11/22/2019)
372 REPLY to Response to Motion re 364 Opposed MOTION for Attorney Fees Incurred by Plaintiffs from September 2016 − April 2019 Defendant City Response filed by James Morrow. (Garrigan, Timothy) (Entered: 11/22/2019)
373 REPLY to Response to Motion re 364 Opposed MOTION for Attorney Fees Incurred by Plaintiffs from September 2016 − April 2019 County Defendant Response filed by James Morrow. (Garrigan, Timothy) (Entered: 11/22/2019)
374 Unopposed MOTION for Leave to File Sur−Reply to Plaintiffs' Contested Motion for Award of Interim Attorneys' Fees and Request for Evidentiary Hearing by Shelby

Case: 2:08-cv-288 As of: 06/03/2020 01:09 PM CDT 40 of 40

12/06/2019 12/06/2019 12/06/2019 12/10/2019 12/26/2019 03/18/2020 04/06/2020
04/14/2020 05/15/2020

County. (Attachments: # 1 Text of Proposed Order)(Rook, Chad) (Entered: 12/06/2019)
375 SUR−REPLY to Reply to Response to Motion re 364 Opposed MOTION for Attorney Fees Incurred by Plaintiffs from September 2016 − April 2019 (and Request for Evidentiary Hearing) filed by Shelby County. (Rook, Chad) (Entered: 12/06/2019)
376 Unopposed MOTION for Leave to File Sur−Reply to Plaintiffs' Contested Motion for Award of Interim Attorneys' Fees by City of Tenaha Mayor. (Attachments: # 1 Text of Proposed Order)(Neill, Erika) (Entered: 12/06/2019)
377 SUR−REPLY to Reply to Response to Motion re 364 Opposed MOTION for Attorney Fees Incurred by Plaintiffs from September 2016 − April 2019 filed by City of Tenaha Mayor. (Neill, Erika) (Entered: 12/06/2019)
378 ORDER granting 374 Motion for Leave to File; granting 376 Motion for Leave to File. Signed by District Judge Rodney Gilstrap on 12/9/2019. (nkl, ) (Entered: 12/10/2019)
379 NOTICE by James Morrow of Plaintiff Counsel's Declaration that Class Notice is Satisfied (Attachments: # 1 Class Notice)(Garrigan, Timothy) (Entered: 12/26/2019)
380 ORDER − The Court issues this Order sua sponte. Status Conference set for 4/14/2020 01:30 PM before District Judge Rodney Gilstrap. Signed by District Judge Rodney Gilstrap on 3/17/2020. (nkl, ) (Entered: 03/18/2020)
NOTICE of Hearing: TELEPHONIC Status Conference set for 4/14/2020 01:30 PM before District Judge Rodney Gilstrap. ***The Court's telephone conference number is 877−336−1839. The Access Code is 5737419#. Participants should use a landline phone connection, unless use of a cellular connection is the only viable means available. Participants shall mute themselves upon joining the conference and stay muted unless speaking. Further participants shall identify themselves each and every time they speak.***(jml) (jml, ) (Entered: 04/06/2020)
Minute Entry for proceedings held before District Judge Rodney Gilstrap: In Chambers Telephonic Status Conference held on 4/14/2020. Messrs. Bales, Craig, Garrison, Davis, Rook and Ms. Neil appeared as counsel for the parties. (No reporter). (jml) (Entered: 04/15/2020)
381 DEFICIENT DOCUMENT

05/18/2020 05/18/2020
05/19/2020 05/28/2020 06/02/2020

Opposed MOTION for Attorney Fees Incurred During the Fee Period From May 1, 2019 Through March 31, 2020 by James Morrow. (Attachments: # 1 Exhibit Timothy B. Garrigan Declaration & Timesheet, # 2 Exhibit Timothy David Craig Declaration & Timesheet, # 3 Exhibit Declaration of Otis Carroll, # 4 Exhibit Declaration of Jane Swanson)(Garrigan, Timothy) Modified on 5/18/2020 (nkl, ). (Entered: 05/15/2020)
NOTICE of Deficiency regarding the Opposed MOTION for Attorney Fees Incurred During the Fee Period From May 1, 2019 Through March 31, 2020 submitted document 381 does not contain a Certificate of Conference. Correction should be made by one business day. (nkl, ) (Entered: 05/18/2020)
382 Opposed MOTION for Attorney Fees Incurred During the Fee Period From May 1, 2019 Through March 31, 2020 by James Morrow. (Attachments: # 1 Exhibit Timothy B. Garrigan Declaration & Timesheet, # 2 Exhibit Timothy David Craig Declaration & Timesheet, # 3 Exhibit Declaration of Otis Carroll, # 4 Errata Declaration of Jane Swanson)(Garrigan, Timothy) (Additional attachment(s) added on 5/18/2020: # 5 Text of Proposed Order) (nkl, ). (Entered: 05/18/2020)
383 Joint MOTION for Approval of Notice to Class for Potential Award of Attorneys' Fees by City of Tenaha Mayor. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Neill, Erika) (Entered: 05/19/2020)
384 Unopposed MOTION for Extension of Time to File by City of Tenaha Mayor. (Attachments: # 1 Text of Proposed Order)(Neill, Erika) (Entered: 05/28/2020)
385 ORDER granting 384 Motion for Extension of Time to File. Signed by District Judge Rodney Gilstrap on 6/2/2020. (nkl, ) (Entered: 06/02/2020)