Case: 2:13-cv-77 As of: 06/11/2018 11:28 AM MDT 1 of 6
CLOSED,F/R,REFER
U.S. District Court District of Montana (Butte) CIVIL DOCKET FOR CASE #: 2:13−cv−00077−DLC

Rios−Diaz et al v. Colonel Tom Butler et al Assigned to: Judge Dana L. Christensen Cause: 42:1983 Civil Rights Act
Plaintiff Jose Rios−Diaz on behalf of themselves and all others similarly situated

Date Filed: 10/07/2013 Date Terminated: 05/08/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Arif Haque , ATTORNEY AT LAW
3649 Humphrey St.

St. Louis, MO 63116
314−435−9866 Fax: 888−594−2179 Email: arif@bordercrossinglaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shahid Haque−Hausrath Border Crossing Law Firm 312 N. Ewing Street, 2nd Floor Helena, MT 59601 406−594−2004 Fax: 888−594−2179 Email: Shahid@bordercrossinglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian J. Miller MORRISON, SHERWOOD, WILSON & DEOLA, PLLP 401 N Last Chance Gulch PO Box 557 Helena, MT 59624 406−442−3261 Fax: 406−443−7294 Email: bmiller@mswdlaw.com ATTORNEY TO BE NOTICED
Robert Farris−Olsen MORRISON, SHERWOOD, WILSON & DEOLA, PLLP 401 N Last Chance Gulch PO Box 557 Helena, MT 59624 406−442−3261 Fax: 406−443−7294 Email: rfolsen@mswdlaw.com ATTORNEY TO BE NOTICED
Scott L. Peterson MORRISON, SHERWOOD, WILSON & DEOLA, PLLP 401 N Last Chance Gulch

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PO Box 557 Helena, MT 59624 406−442−3261 Fax: 406−443−7294 Email: speterson@mswdlaw.com ATTORNEY TO BE NOTICED

Plaintiff
Eligio Duran−Sanchez on behalf of themselves and all others similarly situated

represented by Arif Haque , (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shahid Haque−Hausrath (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian J. Miller (See above for address) ATTORNEY TO BE NOTICED

Robert Farris−Olsen (See above for address) ATTORNEY TO BE NOTICED

Scott L. Peterson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Delfio Mejia−Ochoa on behalf of themselves and all others similarly situated

represented by Arif Haque , (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shahid Haque−Hausrath (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian J. Miller (See above for address) ATTORNEY TO BE NOTICED

Robert Farris−Olsen (See above for address) ATTORNEY TO BE NOTICED

Scott L. Peterson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Montana Immigrant Justice Allliance

represented by Shahid Haque−Hausrath (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian J. Miller (See above for address)

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ATTORNEY TO BE NOTICED

Robert Farris−Olsen (See above for address) ATTORNEY TO BE NOTICED

Scott L. Peterson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Barragan−Naranjo

represented by Arif Haque ATTORNEY AT LAW 3649 Humphrey St. St. Louis, MO 63116 314−435−9866 Fax: 888−594−2179 Email: arif@bordercrossinglaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Shahid Haque−Hausrath (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian J. Miller (See above for address) ATTORNEY TO BE NOTICED

Robert Farris−Olsen (See above for address) ATTORNEY TO BE NOTICED

Scott L. Peterson (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Colonel Tom Butler in his official capacity as Chief Administrator of the Montana Highway Patrol

represented by Randy J. Cox BOONE KARLBERG, P.C. 201 West Main Street PO Box 9199 Missoula, MT 59807−9199 406−543−6646 Fax: 549−6804 Email: rcox@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randy J. Tanner BOONE KARLBERG, P.C. 201 West Main Street PO Box 9199 Missoula, MT 59807−9199 406−543−6646 Fax: 406−549−6804 Email: rtanner@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant
Attorney General TIM FOX, in his official capacity as Head of the Montana Department of Justice

William L. Crowley BOONE KARLBERG, P.C. 201 West Main Street PO Box 9199 Missoula, MT 59807−9199 406−543−6646 Fax: 549−6804 Email: bcrowley@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Randy J. Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randy J. Tanner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William L. Crowley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/07/2013
10/07/2013 10/08/2013 10/09/2013
10/15/2013 10/15/2013
10/15/2013 10/16/2013

# Docket Text
1 COMPLAINT against Attorney General, Colonel Tom Butler, filed by Jose Rios−Diaz, Eduardo Barragan−Maranjo, Delfio Mejia−Ochoa, Eligio Duran−Sanchez, Montana Immigrant Justice Allliance. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibits A thru D) (ELL, ) (Attachment 2 replaced on 10/7/2013) (ELL, ). Modified to add receipt number MTX9−6514 − filing fee paid (NOS, ). (Entered: 10/07/2013)
2 Summons Issued as to Attorney General, Colonel Tom Butler. Original issued in Helena to cnsl for service. (ELL, ) (Entered: 10/07/2013)
3 SUMMONS Returned Executed by Montana Immigrant Justice Allliance. All Defendants. (Haque−Hausrath, Shahid) (Entered: 10/08/2013)
4 MOTION Arif Haque to Appear Pro Hac Vice on behalf of all Plaintiffs ( Filing fee $ 250 receipt number 0977−1301075.) Shahid Haque−Hausrath appearing for Plaintiff Jose Rios−Diaz Motions referred to Carolyn S Ostby. (Attachments: # 1 Affidavit of Arif Haque in Support of Application for Admission Pro Hac Vice, # 2 Text of Proposed Order) (Haque−Hausrath, Shahid) (Entered: 10/09/2013)
5 ORDER denying 4 Motion to Appear Pro Hac Vice Signed by Magistrate Carolyn S Ostby on 10/15/2013. (ELL, ) (Entered: 10/15/2013)
6 MOTION Arif Haque to Appear Pro Hac Vice on behalf of all Plaintiffs (renewed by leave of Court) ( Filing fee $ 250 receipt number 0977−1301075.) Shahid Haque−Hausrath appearing for Plaintiff Jose Rios−Diaz Motions referred to Carolyn S Ostby. (Attachments: # 1 Affidavit of Arif Haque in Support of Application for Admission Pro Hac Vice, # 2 Text of Proposed Order) (Haque−Hausrath, Shahid) (Entered: 10/15/2013)
7 ORDER granting 6 Motion to Appear Pro Hac Vice Signed by Magistrate Carolyn S Ostby on 10/15/2013. (ELL, ) Modified on 10/16/2013 to indicate that a copy of the Order was mailed by US Mail to PHV atty w/registration letter (ELL, ). (Entered: 10/15/2013)
8 Letter RE Attorney Registraton (ELL, ) (Entered: 10/16/2013)

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10/25/2013 10/25/2013 10/25/2013 10/28/2013
12/03/2013 12/05/2013 12/06/2013 12/06/2013 01/16/2014 01/30/2014 04/01/2014 04/15/2014 04/24/2014
07/25/2014

9 Corporate Disclosure Statement by Montana Immigrant Justice Allliance. (Haque−Hausrath, Shahid) (Entered: 10/25/2013)
10 Joint MOTION for Extension of Time to File Answer re 1 Complaint, Randy J. Cox appearing for Defendants Attorney General, Colonel Tom Butler Motions referred to Carolyn S Ostby. (Attachments: # 1 Text of Proposed Order Extending Deadlines) (Cox, Randy) (Entered: 10/25/2013)
11 Mailing of Consent to US Magistrate Judge. Mailed to counsel Randy J. Cox, William L. Crowley, Randy Tanner, Shahid Haque−Hausrath, Arif HaqueConsent/Objection to USMJ Form due by 11/29/2013. (CDH, ) (Entered: 10/25/2013)
12 TEXT ORDER: IT IS ORDERED that: (1) the parties' joint motion to extend deadlines (ECF 10) is GRANTED; (2) Defendants must file their answer or response to Plaintiffs' Complaint by December 6, 2013; and (3) if Defendants file a document in response that requires Plaintiffs to respond, then Plaintiffs' response must be filed no more than 45 days after Defendants file such response or by January 21, 2014, whichever is later. Signed by Magistrate Judge Carolyn S Ostby on 10/28/2013. (JEC, ) (Entered: 10/28/2013)
13 ORDER OF RECUSAL. Signed by Judge Sam E Haddon on 12/3/2013. (ELL, ) (Entered: 12/03/2013)
14 ORDER REASSIGNING CASE. Case reassigned to Judge Dana L. Christensen and Magistrate Carolyn S Ostby for all further proceedings. Judge Sam E Haddon, no longer assigned to case. Signed by Judge Dana L. Christensen on 12/5/2013. (CDH, ) (Entered: 12/05/2013)
15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Randy J. Cox appearing for Defendants Attorney General, Colonel Tom Butler Motions referred to Carolyn S Ostby. (Cox, Randy) (Entered: 12/06/2013)
16 Brief/Memorandum in Support re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Attorney General, Colonel Tom Butler. (Cox, Randy) (Entered: 12/06/2013)
17 RESPONSE to Motion re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Barragan−Naranjo, Eligio Duran−Sanchez, Delfio Mejia−Ochoa, Montana Immigrant Justice Allliance, Jose Rios−Diaz. (Haque−Hausrath, Shahid) (Entered: 01/16/2014)
18 REPLY to Response to Motion re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Attorney General, Colonel Tom Butler. (Cox, Randy) Modified on 1/30/2014 Cpy printed to CSO (ELL, ). (Entered: 01/30/2014)
19 FINDINGS AND RECOMMENDATIONS re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Colonel Tom Butler, Attorney General. Signed by Magistrate Judge Carolyn S Ostby on 4/1/2014. (CDH, ) (Entered: 04/02/2014)
20 OBJECTION to 19 Findings and Recommendations filed by Attorney General, Colonel Tom Butler. (Cox, Randy) (Entered: 04/15/2014)
21 Reply to Objection to Findings and Recommendations re 19 FINDINGS AND RECOMMENDATIONS re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Colonel Tom Butler, Attorney General. filed by Barragan−Naranjo, Eligio Duran−Sanchez, Delfio Mejia−Ochoa, Montana Immigrant Justice Allliance, Jose Rios−Diaz. (Haque−Hausrath, Shahid) (Entered: 04/24/2014)
22 ORDER granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim; adopting Findings and Recommendations re 19 Findings and Recommendations. IT IS ORDERED that Judge Ostby's Findings and Recommendations are ADOPTED IN FULL. IT IS FURTHER ORDERED that Defendants Colonel Tom Butler and Montana Attorney General Tim Fox's Motion to Dismiss is GRANTED for Counts III and IV, but DENIED in all other respects. Signed by Judge Dana L. Christensen on 7/25/2014. (ELL, ) (Entered: 07/25/2014)

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08/12/2014
08/15/2014 08/19/2014 08/20/2014 08/27/2014 09/02/2014 09/03/2014 09/17/2014 09/17/2014 09/17/2014 09/19/2014 09/26/2014
10/10/2014 11/21/2014
11/21/2014 11/25/2014
04/03/2015
04/03/2015

23 ORDER TO SHOW CAUSE. IT IS ORDERED that Dfts must file an Answer on or before 8/19/14 or appear in writing and show cause for their failure to do so. Show Cause Response due by 8/19/2014. Signed by Magistrate Judge Carolyn S Ostby on 8/12/2014. (ELL, ) (Entered: 08/12/2014)
Set/Reset Deadlines: Attorney General answer due 8/19/2014; Colonel Tom Butler answer due 8/19/2014. (CDH, ) (Entered: 08/15/2014)
24 ANSWER to 1 Complaint, by Attorney General, Colonel Tom Butler. (Cox, Randy) (Entered: 08/19/2014)
25 Order Setting: TELEPHONIC Pretrial Conference set for 9/26/2014 at 11:00 AM. Signed by Magistrate Judge Carolyn S Ostby on 8/20/2014. (CDH, ) (Entered: 08/20/2014)
26 NOTICE of Appearance by Brian J. Miller on behalf of All Plaintiffs (Miller, Brian) (Entered: 08/27/2014)
27 NOTICE of Appearance by Robert Farris−Olsen on behalf of All Plaintiffs (Farris−Olsen, Robert) (Entered: 09/02/2014)
28 NOTICE of Appearance by Scott L. Peterson on behalf of All Plaintiffs (Peterson, Scott) (Entered: 09/03/2014)
29 JOINT DISCOVERY PLAN by Barragan−Naranjo, Eligio Duran−Sanchez, Delfio Mejia−Ochoa, Montana Immigrant Justice Allliance, Jose Rios−Diaz. (Haque−Hausrath, Shahid) (Entered: 09/17/2014)
30 STATEMENT OF STIPULATED FACTS by Barragan−Naranjo, Eligio Duran−Sanchez, Delfio Mejia−Ochoa, Montana Immigrant Justice Allliance, Jose Rios−Diaz. (Haque−Hausrath, Shahid) (Entered: 09/17/2014)
31 PRELIMINARY PRETRIAL STATEMENT by Barragan−Naranjo, Eligio Duran−Sanchez, Delfio Mejia−Ochoa, Montana Immigrant Justice Allliance, Jose Rios−Diaz. (Haque−Hausrath, Shahid) (Entered: 09/17/2014)
32 PRELIMINARY PRETRIAL STATEMENT by Attorney General, Colonel Tom Butler. (Cox, Randy) (Entered: 09/19/2014)
33 SCHEDULING ORDER: Telephone PTC held 9/26/14. Amended Pleadings due by 12/1/2014. Discovery due by 9/18/2015. Joinder of Parties due by 12/1/2014. Motions due by 10/2/2015. Signed by Magistrate Judge Carolyn S Ostby on 9/26/2014. (ELL, ) (Entered: 09/26/2014)
34 STATEMENT OF STIPULATED FACTS by Barragan−Naranjo, Eligio Duran−Sanchez, Delfio Mejia−Ochoa, Montana Immigrant Justice Allliance, Jose Rios−Diaz. (Haque−Hausrath, Shahid) (Entered: 10/10/2014)
35 Joint MOTION to Modify 33 Scheduling Order Randy J. Tanner appearing for Defendants Attorney General, Colonel Tom Butler Motions referred to Carolyn S Ostby. (Attachments: # 1 Text of Proposed Order) (Tanner, Randy) (Entered: 11/21/2014)
36 Brief/Memorandum in Support re 35 Joint MOTION to Modify 33 Scheduling Order filed by Attorney General, Colonel Tom Butler. (Tanner, Randy) (Entered: 11/21/2014)
37 Amended SCHEDULING ORDER: Amended Pleadings due by 2/27/2015. Discovery due by 11/18/2015. Joinder of Parties due by 2/27/2015. Motions due by 12/2/2015. Signed by Magistrate Judge Carolyn S Ostby on 11/25/2014. (JDH, ) (Entered: 11/25/2014)
38 NOTICE of Acceptance with Offer of Judgment by Barragan−Naranjo, Eligio Duran−Sanchez, Delfio Mejia−Ochoa, Montana Immigrant Justice Allliance, Jose Rios−Diaz (Attachments: # 1 Offer of Judgment) (Haque−Hausrath, Shahid) (Entered: 04/03/2015)
39 JUDGMENT. Signed by Judge Dana L. Christensen on 4/3/2015. (APP, ) (Additional attachment(s) added on 4/6/2015: # 1 Exhibit) (APP, ). (Entered: 04/03/2015)

 
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SHAHID HAQUE-HAUSRATH BORDER CROSSING LAW FIRM, P.C. 312 N. Ewing Street, 2nd Floor Helena, Montana 59601 (406) 594-2004 Shahid@bordercrossinglaw.com

Attorneyfor Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

JOSE RIOS-DIAZ, ELIGIO DURANSANCHEZ, DELFIO MEJIA-OCHOA, and EDUARDO BARRAGANNARANJO, on behalf of themselves and all others similarly situated, and MONTANA IMMIGRANT JUSTICE ALLIANCE.
Plaintiffs,
V.
COLONEL TOM BUTLER, in his official capacity as Chief Administrator of the MONTANA HIGHWAY PATROL, ATTORNEY GENERAL TIM FOX, in his official capacity as head of the MONTANA DEPARTMENT OF JUSTICE.
Defendants.

Case No.
<1V- t3-71-1Ba- :5 EH- cs 6
COMPLAINT (Class Action)

Plaintiffs Jose Rios-Diaz, Eligio Duran-Sanchez, Delfio Mejia-Ochoa and

Eduardo Barragan-Naranjo, on behalf of themselves and all others similarly situated, and the Montana Immigrant Justice Alliance (collectively "Plaintiffs") allege as follows:

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INTRODUCTION 1. This is a class action to enforce the Fourth and Fourteenth Amendments to the United States Constitution; Title VI of the Civil Rights Act of 1964; and Article II, §§ 4 and 11 of the Montana Constitution. Plaintiffs seek prospective declaratory and injunctive relief against Defendants Colonel Tom Butler, sued in his official capacity as acting Chief Administrator of the Montana Highway Patrol, and Attorney General Tim Fox, sued in his official capacity as head of the Montana Department of Justice (collectively, "Defendants"). 2. As described below, Defendants have implemented a custom, policy and practice of seizing Latino residents and visitors of Montana and prolonging their detention longer than necessary to resolve the alleged violations of the law that Defendants have authority to enforce. The sole purpose of prolonging these individuals' detention is to hold them as Defendants contact agencies within the Department of Homeland Security ("DHS"), including Immigration and Customs Enforcement ("ICE") and U.S. Customs and Border Protection ("CBP"), based on suspicions of civil immigration status violations. 3. Montana Highway Patrol has a custom, pattern, policy, and practice of seizing drivers and passengers it suspects of being in the country without authorization for a prolonged period, often between forty minutes to two hours, while attempting to make contact with DHS to ascertain their immigration status
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and determine if an immigration enforcement officer wishes to assume custody of them. These drivers and passengers are seized, at least initially, upon the prerogative of the Montana Highway Patrol and not at the direction ofDHS.
4. After Montana Highway Patrol officers detain individuals they suspect of immigration status violations for a prolonged period of time, DHS officers may or may not instruct patrol officers that they wish to assume custody of the individuals. However, Montana Highway Patrol's custom, policy, and practice is to seize an individual before DHS officers provide any instructions.
5. The Montana Highway Patrol has no statutory, constitutional, or inherent authority to arrest or detain people for civil violations of federal immigration law.
6. On information and belief, this custom, policy and practice is implemented in a discriminatory manner, as patrol officers use race and ethnicity as a motivating factor in forming a suspicion that a person is in the United States without valid immigration status. This policy disparately impacts Latinos who reside in, or are passing through, Montana.
7. The inferences that the Montana Highway Patrol uses to form a suspicion that a person is here without valid immigration status are based heavily on race. For example, the Montana Highway Patrol has attempted to justify this policy and practice based on observation of "inconsistencies" in vehicle registration or
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msurance documents. However, white, non-Latino individuals with vehicle registration inconsistencies are not detained solely to contact DHS to confirm their immigration status, while Latino residents and visitors to Montana are.
8. On information and belief, the Montana Highway Patrol has also attempted to justify this policy and practice based on the pretense of needing a Spanishspeaking interpreter, and detaining Latino residents and visitors to utilize CBP for interpretation services. In the course of providing these "services," Montana Highway Patrol prolongs the detention of these Latino residents and visitors while CBP attempts to ascertain their immigration status.
9. These activities have been occurring with great frequency for at least three years. As described below, at least two former Chief Administrators of the Montana Highway Patrol with final decision-making control over the Montana Highway Patrol's customs, policies, and practices have explicitly sanctioned this unlawful activity.
10. Defendants have admitted in a collateral proceeding that the recentlyretired Chief Administrator, Colonel Kenton Hickethier, ordered patrol officers "to arrest suspects [they] believed might be illegally in the country regardless of whether the facts supported an offense for which a person could be arrested under Montana law. His instructions were to get them to jail one way or another so Federal authorities could place detainers on them." [See Complaint and Response,
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attached as Exs. A and B.] On information and belief, at least some of these instructions were sent to patrol officers in written form. [Id.]
11. Defendants have engaged in a widespread pattern and practice of racial profiling and other racially and ethnically discriminatory treatment in an illegal, improper and unauthorized attempt to "enforce" federal immigration laws against Latino residents and visitors of Montana. In doing so, they have violated the Constitutional rights of numerous Latino residents and visitors to Montana.
12. To curtail Defendants' illegal conduct, Plaintiffs bring this action as representatives of a class of Latino persons who, as a result of racial profiling and an illegal directive to enforce federal immigration laws, have been or will be stopped, detained, interrogated or searched without consent by Montana Highway Patrol in violation of the law.
13. Plaintiffs seek prospective declaratory and injunctive relief to enJom Defendants' unlawful racial profiling and the attendant constitutional injuries that Plaintiffs and the class will otherwise continue to endure.
JURISDICTION AND VENUE 14. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 1343. This Court has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. This Court has authority to grant declaratory and
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injunctive relief pursuant to 28 U.S.C. § 1343, 2201 and 2202, and to award attorneys' fees under 42 U.S.C. §1988(b).
15. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), and in this division pursuant to Local Rules 1.2(c) and 3.2(b). This is a 42 U.S.C. § 1983 suit against Defendants in their official capacity for prospective injunctive relief, and is, in all respects other than name, to be treated as a suit against the State of Montana. See Ky. v. Graham, 473 U.S. 159, 165-66 (1985). Under MCA§ 25-2126, venue is proper because at least one Plaintiff resides in this division.
PARTIES 16. Plaintiff Montana Immigrant Justice Alliance ("MIJA") is a non-profit organization registered with the State of Montana, working to advance the civil rights of immigrants throughout the state. Its mission is to provide resources and services to empower migrants in our communities; to combat the mistreatment of immigrants from xenophobia, discrimination, harassment, or racial profiling; to promote policies that welcome and support the growth of immigrant communities in our state; and to combat policies that marginalize migrant communities. MIJA does not maintain a single headquarters. Its community activities are held predominantly in Gallatin County, Montana, where MIJA's community advisory board resides. MIJA's board members reside in Gallatin County, Lewis and Clark County, and Yellowstone County.
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17. MIJA has associational standing to represent the interests of its members in pursuing the prospective declaratory and injunctive relief asserted herein, and participates in this suit to lend its expertise and financial support to its members in vindicating their rights.
18. Plaintiff Jose Rios-Diaz is a U.S. citizen and a resident of Belgrade, Montana. He was a member of MIJA at all times relevant hereto. He is Latino by physical appearance and descent. Mr. Rios-Diaz brings this action on behalf of himself and all others similarly situated.
19. Plaintiff Eligio Duran-Sanchez is a Mexican citizen and at the time of his arrest by Montana Highway Patrol was a resident of Culbertson, Montana. Mr. Duran-Sanchez pursues this lawsuit as a member of MIJA. He is Latino by physical appearance and descent. Mr. Duran-Sanchez brings this action on behalf of himself and all others similarly situated.
20. Plaintiff Delfio Mejia-Ochoa is a Guatemalan citizen and a resident of Sidney, Montana. Mr. Mejia-Ochoa pursues this lawsuit as a member ofMIJA. He is Latino by physical appearance and descent. Mr. Mejia-Ochoa brings this action on behalf of himself and all others similarly situated.
21. Plaintiff Eduardo Barragan-Naranjo is a Mexican citizen and a resident of Ronan, Montana. Mr. Barragan-Naranjo pursues this lawsuit as a member of
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MIJA. He is Latino by physical appearance and descent. Mr. Barragan-Naranjo brings this action on behalf of himself and all others similarly situated.
22. Jose Enriquez-Galicia is not a plaintiff but shares his experiences as a member of the proposed class. He is a Mexican citizen and a resident of Las Vegas, Nevada, who was passing through Montana when detained by Montana Highway Patrol. He is Latino by physical appearance and descent.
23. Defendant Colonel Tom Butler is sued in his official capacity as the Chief Administrator of the Montana Highway Patrol. He is responsible for setting and implementing the policies and practices of the Montana Highway Patrol, including but not limited to: supervising, discharging, demoting, or suspending patrol officers; designating all supervisory personnel; and formulating policies regarding the stops, arrests, and related treatment of individuals in motor vehicles in the State of Montana. The Chief Administrator has direct control and supervision of all patrol officers, subject to the approval of the Attorney General.
24. The Montana Highway Patrol is not a defendant, but answers for the conduct alleged herein through Defendant Colonel Tom Butler, acting in his official capacity. The Montana Highway Patrol is the largest law enforcement agency in the state, with jurisdiction to make arrests under the circumstances outlined in MCA§ 44-1-1001, et. seq.
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25. Defendant Attorney General Tim Fox is sued in his official capacity as the Attorney General of the State of Montana and head of the Montana Department of Justice. He has powers of supervision, approval, direction and appointment over the Montana Highway Patrol, its Chief Administrators, and its patrol officers.
26. The Montana Department of Justice is not a defendant, but answers for the conduct alleged herein through Defendant Attorney General Tim Fox, acting in his official capacity. The Montana Department of Justice has control and supervision of the Montana Highway Patrol, and is directed by statute to provide for the employment and supervision of the Montana Highway Patrol.
GENERAL ALLEGATIONS 27. Montana Highway Patrol does not have the authority to prolong individuals' detention based on suspected civil immigration status violations, even if patrol officers have reasonable suspicion or probable cause to seize or detain individuals for violations of law that the patrol officers are authorized to enforce. 28. Montana Highway Patrol officers have no legal authority to prolong a detention to contact DHS and make inquiries based on suspicion of civil immigration status violations. 29. Montana Highway Patrol has a policy and practice of detaining Latino residents of Montana longer than necessary to resolve the alleged violations of the
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law that they have jurisdiction to enforce, solely to inquire with agencies within DHS, including ICE and CBP, about individuals' immigration status.
30. This custom, policy and practice is not implemented in a race-neutral manner, but rather with discriminatory intent. On information and belief, this policy and practice permits the use of race as a motivating factor in formulating a suspicion than an individual lacks valid immigration status. The use of race in forming suspicion . of civil immigration status violations disparately impacts Latinos who reside in, or are passing through, Montana.
31. At least two former Chief Administrators of the Montana Highway Patrol have approved of this unlawful custom, policy and practice.
32. Colonel Michael Tooley was Chief Administrator of the Montana Highway Patrol from around January 2009 to December 2012.
33. On April 14, 2011, Colonel Tooley responded to a discrimination complaint by Plaintiff Jose Ramos-Diaz, a U.S. citizen who was aggrieved after being held for at least 47 minutes for a simple speeding infraction because the Montana Highway Patrol officer wrongly suspected that he violated civil immigration laws. [See E-mail from Colonel Michael Tooley, attached as Ex. C.]
34. Colonel Tooley confirmed in writing that a Montana Highway Patrol officer had "called ICE to double check" on Mr. Ramos-Diaz's immigration status.
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He further stated that: "This process turned a ten minute stop into a 47 minute stop. I wish it had been faster, but that isn't how this encounter went. We often have trouble getting immediate calls back from ICE in these situations." [Id.]
35. Colonel Tooley found no wrongdoing in this instance. [Id.] 36. Colonel Kenton Hickethier was Chief Administrator of the Montana Highway Patrol from about January 2013 to August 2013. 37. He was employed with Montana Highway Patrol for more than 27 years, 17 of those years spent in administrative capacities ranging from oversight responsibility for several districts, personnel management, policy implementation, budgetary oversight, and training. 38. Prior to August 2011, he had been promoted to Captain. He was promoted to Major on March 8, 2012, and oversaw operations east of the Continental Divide. He was promoted to Colonel and appointed as Chief Administrator of the Montana Highway Patrol by Attorney General Tim Fox around January 2013. 39. On or around July 10, 2013, Patrol Officer Glenn D. Quinnell with the Montana Highway Patrol filed a complaint with the Montana Human Rights Bureau within the Department of Labor and Industry, alleging that he suffered harassment, discrimination, and retaliation at the hands of Chief Hickethier, the Montana Highway Patrol, and the Montana Department of Justice. [See Complaint
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of Discrimination 4(c), attached as Ex. A.] 40. Patrol Officer Glenn D. Quinnell alleged in his complaint that the
following incident occurred during the week of August 16, 2011: In one instance Hickethier ordered me to arrest suspects I believed might be illegally in the country regardless of whether the facts supported an offense for which a person could be arrested under Montana law. His instructions were to get them to jail one way or another so Federal authorities could place detainers on them. When others and I said we would not violate a person's civil rights he focused on me and said I would or I would be done. I understood this to be a threat to fire me if I did not make the illegal arrests. The next day, Hickethier pulled me aside and told me to stop being so 'hard headed.'
[Id.]
41. The Montana Department of Justice, on behalf of all respondents in that matter, admitted this paragraph of the complaint in its entirety. [See Response to Charge of Discrimination, attached as Ex. B.]
42. Patrol Officer Glenn D. Quinnell also reported other inappropriate race and sex-based comments made by Kenton Hickethier, then a Captain with the Montana
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Highway Patrol. These were also admitted by the Montana Department of Justice, on behalf of all respondents in that matter. [See id.]
43. On August 27, 2011, Patrol Officer Glenn D. Quinnell reported Captain Hickethier instructions to violate the rights of suspected undocumented immigrants, as well as his other inappropriate comments, to Lieutenant Colonel Huseby in a detailed email. [See Attachment A to Response to Charge of Discrimination, attached as Ex. B.]
44. Patrol Officer Glenn D. Quinnell provided the following additional details about Captain Hickethier' s remarks in his e-mail to Lieutenant Colonel Huseby:
Kelly's [Sergeant Kelly Manthooth's] uncle, whom I believe is named Steve, was telling war stories about his career. He was finishing up one that involved Immigration and Customs Enforcement when Capt. Hick [Hickethier] arrived. We had ordered food but had not eaten yet. I started to tell Steve the difficulties we have with getting ICE to take suspects in our area when Capt Hick interrupted and stated that I was doing it wrong. He said we were to arrest them for whatever offense we stopped them for and hold them for ICE. He stated he had made arrangements with ICE in Helena and had been guaranteed that they would go anywhere in the state to get illegals. He further stated that he had sent out an email regarding that. I told him that certainly if I had
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an offense I could arrest for I would, but that I had called the number he had put out and had been declined more than once. I told him I could not arrest someone for a $20 speed ticket. Case law is clear in Mt on that. He said I had to. I said again that I couldn't. Troy [Patrol Officer Muri] piped in at one point and said the same as me, that we had tried and ICE wouldn't come without more than just suspected illegal status. The exchange went back and forth a couple times and he said "you'll do it or you'll be done doing this!" About that time Steve looked at me and said, "Don't worry, your civil rights case will probably go OK". Everyone, including me, laughed. I wasn't taking it that serious at that point since we were off duty. At that point Captain Hick threw down some money, said "I'm done with Quinnell" and left. Everyone just got quiet.
[Id.]
45. Patrol Officer Glenn D. Quinnell made several references to specific emails written by Captain Hickethier about Montana Highway Patrol procedures for prolonging a detention to contact ICE:
I didn't sleep much that night. The next day I could tell that Capt. Hick was still upset but he didn't say anything initially. Kelly pulled me aside and told me that Capt. Hickithier [sp] would be pulling me
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aside to talk later and to just let him have his say. During the first speakers session he pulled me out in to the lobby and said we needed to talk. He told me I needed to work on not being so Bullheaded. He also stated that I needed to read the emails I was sent and follow the procedures in them. I told him I believed I had. The night before when I got back to my room I double checked to make sure I had the email. I did. I had been following the procedures ICE had put out with the associated numbers to be called. At no time did he admit to being any way at fault for the incident. After his reaction the night before I just let him talk and went back to the training.
[Id.]
46. After an investigation, Captain Hickethier was issued a written warning for "several inappropriate comments ... [s]pecifically the comments were in regard to the age of Trooper Glenn Quniell's [sp] spouse, a joke in regard to a female instructor's weight, and a comment about Trooper Quinell [sp] having dinner with black patrol officers from North Carolina." [See Attachment B to Response to Charge of Discrimination, attached as Ex. B.]
47. Despite the fact that the complaint from Patrol Officer Glenn D. Quinnell provided detailed information about Captain Hickethier' s specific and adamant instructions to pretextually arrest people who "might be illegally in the country"
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without probable cause, and to prolong their detention to contact ICE, there was no reprimand or written warning issued in connection with this misconduct. [Id.] This important issue was not even mentioned. [Id.]
48. After Kenton Hickethier's instructions to violate the rights of suspected undocumented immigrants came to the direct attention of Lieutenant Colonel Huseby, Hickethier was promoted to Major, and then to Colonel, and he was appointed Chief Administrator by Defendant Attorney General Tim Fox.
49. On information and belief, Colonel Hickethier's unlawful instructions and guidance continue to be implemented by Montana Highway Patrol. In addition, the custom, pattern, policy and practice of detaining Latino residents and visitors solely to inquire into their civil immigration status continues to be implemented by Montana Highway Patrol. Montana Highway Patrol Lacks Authority to Enforce Civil Immigration Laws
50. Mere unauthorized presence in this country, without more, is not a criminal offense. Use of unauthorized methods of entry into this country generally constitutes at least misdemeanor or a petty criminal violation of federal immigration law. See, e.g., 8 U.S.C. § 1325 (2005) (making it a federal misdemeanor to enter or attempt to enter the United States at "any time or place other than as designated by immigration officers."). However, aliens may also
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enter the country legally, but become subject to removal either by staying longer than authorized or otherwise acting in excess of their authorization. Although a number of such aliens are here without or in excess of authorization, they have only committed a civil, as opposed to a criminal, violation of federal law.
51. As the Supreme Court recently explained: "As a general rule, it is not a crime for a removable alien to remain present in the United States. If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent." Arizona v. United States, 132 S. Ct. 2492, 2505, 183 L. Ed. 2d 351 (2012). State and local law enforcement officers may participate in the enforcement of federal immigration laws only in "specific, limited circumstances" authorized by Congress. Id. at 2507. "Detaining individuals solely to verify their immigration status would raise constitutional concerns." Id. at 2509.
52. It is the law in the Ninth Circuit that local law enforcement officers cannot arrest individuals solely based on known or suspected civil immigration violations. See Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012); Melendres v. Arpaio, No. PHX-CV-07-02513-GMS, 2013 U.S. Dist. LEXIS 73869, 2013 WL 2297173, at *60-63 (D. Ariz. May 24, 2013).
53. The federal statutory structure instructs when it is appropriate to arrest a non-citizen. When an alien is suspected of being removable, a federal immigration
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official issues an administrative document called a Notice to Appear. See 8 U. S. C. § 1229(a); 8 CFR § 239.l(a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U.S.C. § 1229(a)(l).
54. To arrest an alien, federal immigration official typically needs a warrant. Warrants are executed by federal officers who have received training in the enforcement of immigration law. See 8 CFR §§ 241.2(b), 287.5(e)(3). Ifno federal warrant has been issued, those officers have more limited authority. See 8 U. S. C. § 1357(a). They may arrest an alien for being "in the United States in violation of any [immigration] law or regulation," for example, but only where the alien "is likely to escape before a warrant can be obtained." Id. § 1357(a)(2).
55. By detaining individuals based on mere suspicion of civil immigration status violations, the Montana Highway Patrol exceeds the authority Congress has given to trained federal immigration officers to make warrantless arrests of noncitizens based on possible removability. The program put in place by Congress does not allow state or local officers to adopt the warrantless arrest enforcement mechanism unless they enter into a special agreement with DHS.
56. Under Section 287(g) of the Immigration and Nationality Act ("INA"), the U.S. Attorney General is authorized to permit the delegation of certain immigration enforcement functions to state and local officers. Agreements entered pursuant to
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Section 287(g) of the INA enable specially trained state or local officers to perform specific functions relating to the investigation, apprehension, or detention of aliens, during a predetermined time frame and under federal supervision. See INA §
287(g)(5); 8 u.s.c. §1357(g)(5).
57. The Montana Highway Patrol does not have an agreement under INA § 287(g) to enforce federal immigration laws, and did not have any such agreement at any times relevant to this lawsuit.
58. As a law enforcement agency without INA§ 287(g) authority, the Montana Highway Patrol has no statutory, constitutional, or inherent authority to detain people for civil violations of federal immigration law.
59. In the Montana Highway Patrol's operations, there appears to be no practical difference between how it presently acts and how it could act if it had full INA§ 287(g) authority.
60. When the Montana Highway Patrol merely suspects a person of being in the country without authorization, it does not, in the absence of additional facts that would make the person guilty of an immigration-related crime, have a basis to arrest or even engage in a brief investigatory detention of such persons.
61. It is the existence of a suspected crime that gives a Montana Highway Patrol officer the right to detain a person for the minimum time necessary to
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determine whether a cnme 1s m progress. Possible criminality is key to any investigatory stop or prolonged detention. Absent suspicion that a suspect is engaged in, or is about to engage in, criminal activity, Montana Highway Patrol may not stop, detain, or prolong the detention of an individual.
62. Even actual knowledge that a person is not lawfully in the country does not provide probable cause that the person has, additionally, crossed the border at an unauthorized place, and has thus committed a criminal immigration violation. Martinez-Medina v. Holder, 673 F.3d 1029, 1030-31 (9th Cir. 2011).
63. A seizure that is justified for a particular purpose can become unlawful if it is prolonged beyond the time reasonably required to complete that purpose. Any attempts to contact DRS, pass along the information to ICE or CBP, await a response, and/or deliver the arrestees to DRS inevitably takes time in which the subject is not free to leave, and is therefore arrested, regardless of whether the detention is officially termed an arrest.
64. On information and belief, the Montana Highway Patrol has a policy and practice of prolonging investigatory stops of Latino residents and visitors longer than needed to resolve actionable violations of the law. These individuals are seized based on suspicion of being in the country without authorization, even though patrol officers do not have probable cause to believe they are guilty of an immigration-related crime.
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65. When the driver of a vehicle is stopped, passengers are legally seized for the same time it takes the officer to resolve the basis for the stop with the driver. Yet, stopping a driver for a traffic violation provides no basis to stop or detain the passengers. Montana Highway Patrol officers cannot substantially prolong a stop to investigate a passenger unless the patrol officer, through his or her observations, obtains particularized reasonable suspicion that the passenger is committing a violation that the deputy is authorized to enforce.
66. On information and belief, Montana Highway Patrol has a policy and practice of detaining Latino passengers in a vehicle to investigate their immigration status absent particularized reasonable suspicion that the passenger is committing a criminal violation. In these instances, the Montana Highway Patrol prolongs the detention of the passenger significantly longer than necessary to resolve the matter for which the driver is seized.
67. Montana Highway Patrol detains both drivers and passengers it suspects of being in the country without authorization for a prolonged period, often between forty minutes to two hours, while attempting to make contact with DHS to ascertain the individual's immigration status and to determine if an immigration enforcement officer wishes to assume custody of an individual. Such persons are investigated and apprehended, at least initially, upon the prerogative of the Montana Highway Patrol and not at the direction of ICE. Such apprehensions
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occur despite the lack of any authority on the part of the Montana Highway Patrol to investigate or arrest for civil immigration violations.
68. No written agreement is necessary in order for a state or local officer to report "that a particular alien is not lawfully present in the United States," or to "cooperate in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." INA§ 287(g)(10), 8 U.S.C. §1357(g)(10). However, this does not authorize Montana Highway Patrol's unilateral arrests.
69. The U.S. Supreme Court stated that: "There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government." Arizona, 132 S. Ct. at 2507.
70. In addition to unlawfully prolonging a stop to inquire into suspicion of civil immigration status violations, Montana Highway Patrol officers have been further instructed to pretextually arrest suspects they believe might be illegally in the country regardless of whether the facts support an offense for which a person could be arrested under Montana law. By Defendants' admission, Montana Highway Patrol officers were instructed "to get them to jail one way or another so Federal authorities can place detainers on them." [See Exhibits A and B, attached.]
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71. On information and belief, Montana Highway Patrol is enrolled in the federal Secure Communities program, but this program does not confer any training or authority to enforce immigration laws, or allow an officer to prolong an arrest solely to inquire into an individual's immigration status.
72. Secure Communities is a federal program implemented by Immigration and Customs Enforcement ("ICE") that is used to identify criminal aliens in local law enforcement custody. State or local law enforcement officers enter data and fingerprints from individuals who they arrest and detain in the normal course of their duties. ICE monitors that database to identify aliens who may be removable. See, e.g., U.S. Immigration and Customs Enforcement, Secure Communities: The Basics, available at http://www.ice.gov/secure communities.
73. The National Crime Information Center ("NCIC") database may include certain civil immigration records, including information on individuals subject to removal orders in civil immigration proceedings. However, inclusion of these civil immigration records in a law enforcement database does not confer independent authority to make independent arrests based on civil immigration violations. See, e.g., Santos v. Frederick County Bd. of Comm 'rs, 725 F.3d 451, 2013 U.S. App. LEXIS 16335, 2013 WL 4008189 (4th Cir. August 7, 2013)
74. Racial profiling is prohibited under MCA § 44-2-117. In addition to other requirements, this provision of law "prohibits the practice of routinely stopping
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members of minority groups for violations of vehicle laws as a pretext for investigating other violations of criminal law."
75. On information and belief, Montana Highway Patrol officers have used their patrol vehicles to physically transport Latino residents and visitors of Montana to an agency within DHS, including CBP or ICE. By law, upon making an arrest, a Montana Highway Patrol officer must follow the procedures of MCA § 44-1-1101. Montana Highway Patrol officers have no authority to seize, handcuff, and deliver an individual to DHS.
76. In some instances, Montana Highway Patrol's unlawful custom, policy, and practice results in arrest of undocumented aliens, including some who committed criminal immigration violations. However, whether an arrest was constitutionally valid depends upon whether, at the moment the arrest was made, the officers had probable cause to make that arrest.
CLASS REPRESENTATIVES Plaintiff Jose Rios-Diaz
77. On April 4, 2011, at approximately 10:00 am, Plaintiff Jose Rios-Diaz was pulled over by Patrol Officer Justin Moran with the Montana Highway Patrol for allegedly speeding while driving on the interstate near Billings, Montana.
78. Patrol Officer Moran asked Mr. Rios-Diaz for his driver's license, and then almost immediately asked: "Are you here legally?"
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79. Mr. Rios-Diaz objected to this line of questioning based on racial profiling, but acquiesced in response to the Montana Highway Patrol officer's show of authority. Mr. Rios-Diaz answered that he is here legally.
80. Mr. Rios-Diaz is a U.S. citizen. 81. Patrol Officer Moran noted that Mr. Rios-Diaz's vehicle was registered to someone else, but was insured by him. Mr. Rios-Diaz explained that he sold his vehicle to an acquaintance, who registered it under his name, but then he took the vehicle back when his friend ultimately did not pay for it. 82. Patrol Officer Moran asked if the person Mr. Rios-Diaz sold his vehicle to had been deported. Mr. Rios-Diaz answered that he did not know. 83. Mr. Rios-Diaz possessed a valid Montana driver's license, which was verified by Patrol Officer Moran. 84. Patrol Officer Moran went back to his vehicle and returned to Mr. RiosDiaz several times. On each occasion, he resumed his line of questioning regarding Mr. Rios-Diaz's immigration status. He said: "Tell me the truth, are you here legally or not?" 85. Patrol Officer Moran's interrogation included detailed questions about the circumstances under which Mr. Rios-Diaz had originally obtained lawful permanent resident status, including who had petitioned for him.
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86. At one point, Patrol Officer Moran said: "You don't look like you are from around here."
87. Mr. Rios-Diaz repeatedly confirmed that he has valid immigration status. At one point, Mr. Rios-Diaz asserted that since he has a valid Montana driver's license, this should be sufficient proof of his lawful immigration status. Patrol Officer Moran answered: "Driver's licenses can be fake."
88. Mr. Rios-Diaz was detained while Patrol Officer Moran called ICE to "double check" on his immigration status.
89. Due to inquiries into his immigration status, Mr. Rios-Diaz was detained for longer than necessary to issue a speeding ticket, or to investigate any other actionable violations of the law.
90. This process extended Mr. Rios-Diaz's detention by at least 37 minutes. 91. Mr. Rios-Diaz was issued a $40.00 speeding ticket, which he paid. 92. On the same day, Mr. Rios-Diaz complained, through his attorney, to former Chief of the Montana Highway Patrol, Colonel Michael Tooley. 93. On April 14, 2011, Colonel Tooley courteously responded to Mr. RiosDiaz's counsel by e-mail, but stated that after reviewing the audio and video of the stop, Montana Highway Patrol found no wrongdoing. [See E-mail from Colonel Michael Tooley, attached as Ex. C.]
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94. Colonel Tooley justified the length of the stop and inquiries with ICE by claiming that Patrol Officer Moran found "inconsistencies" in the vehicle registration and insurance documents, which "brought into question other documentation such as the driver's license." [Id.]
95. However, Colonel Tooley also confirmed that "[t]he license was verified with DMV almost immediately after the stop. It was a valid license and Trooper Moran never stated he thought it was fake on the presence of Mr. Rios-Diaz nor when he was back in the patrol car." [Id.]
96. Colonel Tooley stated: "we have recently encountered driver's licenses have been secured in Montana and other states (usually Washington) with unverified documentation by individuals from all over the world."
97. Colonel Tooley stated that Patrol Officer Moran was attempting "to ensure there were no other violations of law outside of the initial stop."
98. Colonel Tooley did not explain how "double checking" with ICE regarding Mr. Rios-Diaz's immigration status was related to resolving any "inconsistencies" in the vehicle registration and insurance documents, and did not articulate any facts that could have been relied upon to form reasonable suspicion or probable cause that Plaintiff had an invalid driver's license, or had committed a civil immigration violation - much less a criminal immigration violation.
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99. Colonel Tooley confirmed that inquiries with ICE caused the delay: "This process turned what should have been a ten-minute stop into a 47-minute stop. I wish it had been faster, but that isn't how this encounter went. We often have trouble getting immediate calls back from ICE in these situations." [Id.]

100.

Montana Highway Patrol had no authority to prolong Mr. Rios-

Diaz's detention to inquire with ICE about his immigration status.

101.

Montana Highway Patrol can point to no race-neutral criteria that

would justify prolonging Mr. Rios-Diaz's detention to inquire with ICE about his

immigration status. On information and belief, this prolonged detention was due to

discriminatory racial profiling.

102.

On at least one other occasion, a Montana Highway Patrol officer

questioned Mr. Rios-Diaz about his immigration status. This occurred on or

around April 19, 2009, when Mr. Rios-Diaz needed assistance after crashing his

vehicle due to slippery road conditions.

103. Because of Mr. Rios-Diaz's experiences with the Montana Highway Patrol, he is afraid that he will continue to be detained in the future based on racial profiling and unfounded suspicions regarding his immigration status. He feels like he cannot drive anywhere in the state without getting harassed. Because of this harassment he has even contemplated leaving Montana.

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Plaintiff Eligio Duran-Sanchez

104.

On August 30, 2013, at approximately 4:00 pm, Mr. Duran-Sanchez

was the passenger in a vehicle stopped by a Montana Highway Patrol officer,

ostensibly for a missing front license plate, while the vehicle was driving on

Highway 2, just outside Culbertson, Montana.

105.

The vehicle was driven by a Latino male.

106.

The Patrol Officer also asked for a driver's license from Mr. Duran-

Sanchez, although he was the passenger in the vehicle.

107.

The Patrol Officer lacked reasonable suspicion or probable cause to

believe that Mr. Duran-Sanchez had committed a crime, including any

immigration-related crime.

108.

Mr. Duran-Sanchez presented a form of Mexican identification.

109.

The Patrol Officer asked Mr. Duran-Sanchez to additionally present

a birth certificate. The vehicle was stopped near Mr. Duran-Sanchez's residence.

He was told to get the birth certificate and return to the vehicle.

110.

Upon returning to the vehicle, the Patrol Officer indicated that Mr.

Duran-Sanchez was not free to leave.

111.

On information and belief, the Montana Highway Patrol officer

contacted CBP to inquire into the immigration status of Mr. Duran-Sanchez.

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112.

A second Montana Highway Patrol vehicle arrived at the scene.

113. On information and belief, Mr. Duran-Sanchez and Mr. ManuelSanchez were handcuffed and put in separate Montana Highway Patrol vehicles.

114.

Up to this point, Montana Highway Patrol officers had detained Mr.

Duran-Sanchez, without his consent or ability to leave, for almost two hours.

115.

On information and belief, a Montana Highway Patrol officer drove

Mr. Duran-Sanchez for over an hour to a CBP station in Plentywood, Montana.

116.

CBP then took custody of Mr. Duran-Sanchez.

117.

Mr. Duran-Sanchez was never issued any ticket or citation by

Montana Highway Patrol in connection with this incident.

118.

As a passenger in the vehicle, Montana Highway Patrol had no

authority to detain Mr. Duran-Sanchez in the first instance, and had no authority to

prolong his detention to inquire with DHS about his immigration status.

119. On information and belief, Montana Highway Patrol seized Mr. Duran-Sanchez without first forming probable cause or reasonable suspicion that Mr. Duran-Sanchez committed a criminal immigration violation.

120.

Montana Highway Patrol can point to no race-neutral criteria that

would justify prolonging Mr. Duran-Sanchez's detention to inquire with DHS

about his immigration status.

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Plaintiff Delfio Mejia-Ochoa

121.

On September 21, 2013, around midnight, Plaintiff Delfio Mejia-

Ochoa was the driver in a vehicle stopped by the Dawson County Sherriff s

Department for allegedly speeding while driving on Highway 16, about 10 miles

outside of Glendive, Montana.

122.

After Mr. Mejia-Ochoa was pulled over, a Montana Highway Patrol

vehicle arrived at the scene and jointly took part in his arrest and detention.

123.

Mr. Mejia-Ochoa presented a valid Utah driver's license, but was

informed that a technical problem prevented it from being verified.

124.

Mr. Mejia-Ochoa was informed that he was being detained while one

or both of the law enforcement officers called an agency within DHS to attempt to

verify Mr. Mejia-Ochoa's immigration status.

125.

A Patrol Officer with the Montana Highway Patrol demanded to see

identification from the passenger in the vehicle, Mr. Mejia-Ochoa's fiancee,

Kariann Sprankle.

126.

One or both of the law enforcement officers handed Mr. Mejia-

Ochoa a phone and demanded that he speak to an unknown immigration officer.

127. On information and belief, this immigration officer was with CBP in Plentywood, Montana.

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128. Mr. Mejia-Ochoa did not consent to questioning into his immigration status, or to his prolonged detention to check his immigration status with DRS, but acquiesced in response to the law enforcement officers' show of authority.

129.

Mr. Mejia-Ochoa truthfully answered all of the questions that were

asked of him. Then, he was asked to wait while the law enforcement officers

spoke amongst themselves.

130.

By this point, the law enforcement officers had detained Mr. Mejia-

Ochoa for approximately an hour and a half.

131.

At one point, Mr. Mejia-Ochoa was informed: "It doesn't seem like

they want you." He was told that if DRS didn't call back within five minutes, he

would be released.

132.

One or both of the law enforcement officers subsequently made

another phone call to an immigration officer with DRS, and Mr. Mejia-Ochoa was

informed: "They want to take you."

133.

Mr. Mejia-Ochoa was placed under arrest, handcuffed, and put into

the Dawson County Sherriffs patrol vehicle. He was driven approximately one

hour and delivered to a CBP station in Plentywood, Montana.

134.

A $65.00 speeding ticket was issued by the Dawson County

Sherriffs Department, which he paid in full.

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135.

Montana Highway Patrol jointly participated in this arrest, and had

no authority to participate in prolonging Mr. Mejia-Ochoa's detention to inquire

with DHS about his immigration status.

136. Montana Highway Patrol seized Mr. Mejia-Ochoa without first forming probable cause or reasonable suspicion that he had committed a criminal immigration violation.

137. Montana Highway Patrol can point to no race-neutral criteria that would justify its participation in prolonging Mr. Mejia-Ochoa's detention to inquire with DHS about his immigration status.

Plaintiff Eduardo Barragan-Naranjo

138.

On April 21, 2011 at about 12:00 pm, Mr. Barragan-Naranjo was the

passenger in a vehicle stopped by Montana Highway Patrol Officer Matt

Cartwright, allegedly for speeding on Interstate 94 in Custer County, Montana.

139. Patrol Officer Cartwright asked the driver of the vehicle for his driver's license, which he provided.

140. Patrol Officer Cartwright also asked Mr. Barragan-Naranjo for his identification. He provided a valid driver's license.

141. Patrol Officer Cartwright asked if Mr. Barragan-Naranjo had any drugs. He answered that he did not.

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142. Patrol Officer Cartwright requested assistance from Agent Dan Baker with the Montana Department of Justice because he suspected drug activity.
143. At some point, Patrol Officer Mike Rhodes also arrived at the scene. 144. One of the law enforcement officers asked Mr. Barragan-Naranjo for permission to search the vehicle. Mr. Barragan-Naranjo answered that he could not give permission to search the vehicle, since he did not own it, but that they could search his personal belongings. 145. Agent Baker questioned Mr. Barragan-Naranjo. A Montana Department of Justice report of the incident states:
Agent Baker asked Barragan if he was in the country legally or illegally and Barragan replied something to the effect that he was working on it. Agent Baker questioned him further and asked Barragan directly if he was here illegally. Barragan advised Agent Baker that he was in fact an illegal alien, living in the United States for 13 years. Agent Baker advised Troopers Cartwright and Rhodes that Barragan had admitted to being in the country illegally. Trooper Cartwright contacted U.S. Immigration and Customs Enforcement (ICE) regarding Barragan[.] 146. An ICE report of the incident states:
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MHP Trooper [Cartwright] initiated a vehicle stop on 1-94 West Bound near Miles City, Montana. Trooper [Cartwright] encountered two male subjects in the vehicle. One of the two occupants readily admitted to being a citizen of Mexico and supplied a foreign document to the trooper when he asked for identification. Trooper [Cartwright] then contacted ICE Special Agent [Redacted] in regards to the subject. SA [Redacted] interviewed Eduardo BARRAGANNARANJO and determined that the subject is illegally present in the United States. 147. Mr. Barragan-Naranjo Plaintiff did not consent to this line of questioning into his immigration status, or to his prolonged detention to check his immigration status with DHS, but acquiesced in response to the Montana Highway Patrol officer's show of authority. 148. Patrol Officer Cartwright searched Mr. Barragan-Naranjo's belongings and saw that he had approximately $5,000.00 in cash. 149. Mr. Barragan-Naranjo explained that he had just sold a vehicle, and that this was the money he earned from that transaction. He stated that he was planning to buy a new vehicle with that money. 150. The law enforcement officers asserted that Mr. Barragan-Naranjo and
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the driver of the vehicle were involved in the sale of methamphetamines. 151. The law enforcement officers seized Mr. Barragan-Naranjo's money,
and placed him under arrest. 152. On September 1, 2011, the charges against Mr. Barragan-Naranjo
were dismissed with prejudice. 153. After being released from state custody, Mr. Barragan-Naranjo was
taken into ICE custody pursuant to a detainer. 154. After being taken into custody and put into Immigration Court
proceedings, ICE exercised prosecutorial discretion and asked the Immigration Court to terminate the removal proceedings against Mr. Barragan-Naranjo. On October 15, 2012, the removal proceedings against him were terminated.
155. On information and belief, the Montana Department of Justice and Montana Highway Patrol officers who arrested Mr. Barragan-Naranjo lacked probable cause to believe that Mr. Barragan-Naranjo had committed a cnme, including any immigration-related crime.
156. On information and belief, Mr. Barragan-Naranjo's arrest in this instance was in accordance with general instructions by then-Captain Kenton Hickethier "to arrest suspects [patrol officers] believed might be illegally in the country regardless of whether the facts supported an offense for which a person
36

Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 37 of 49

could be arrested under Montana law. His instructions were to get them to jail one way or another so Federal authorities could place detainers on them." [See Complaint and Response, attached as Exhibits A and B.]

Proposed Class Member Jose Enriguez-Galicia

157.

On or about September 26, 2013, at approximately 7:00 pm, Mr.

Enriquez-Galicia was the passenger in a vehicle stopped by a Montana Highway

Patrol officer, ostensibly because the vehicle had a lighted license plate that was

tinted blue, allegedly in violation of the law.

158.

There were three Latino men in the vehicle. The driver was a U.S.

citizen who presented a valid driver's license.

159.

The Patrol Officer also demanded identification from the passengers

in the vehicle, Mr. Enriquez-Galicia and another unknown Latino male.

160. The Patrol Officer lacked reasonable suspicion or probable cause to believe that Mr. Enriquez-Galicia had committed a crime, including any immigration-related crime.

161.

Mr. Enriquez-Galicia presented a form of Mexican identification.

162.

The Montana Highway Patrol officer seized Mr. Enriquez-Galicia,

preventing his freedom to leave, while the Patrol officer contacted CBP to verify

his immigration status.

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Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 38 of 49

163. Montana Highway Patrol officers detained Mr. Enriquez-Galicia, without his ability to leave, for over an hour, until CBP officers arrived and took him into custody.

164. On information and belief, the other Latino male was also detained by Montana Highway Patrol until CBP officers arrived and took him into custody.

165.

Mr. Enriquez-Galicia was never issued any ticket or citation by

Montana Highway Patrol in connection with this incident.

166.

As a passenger in the vehicle, Montana Highway Patrol had no

authority to substantially prolong Mr. Enriquez-Galicia's detention without

probable cause that he had committed a crime, and had no authority to prolong his

detention to inquire with DHS about his immigration status.

167.

Montana Highway Patrol can point to no race-neutral criteria that

would justify prolonging Mr. Enriquez-Galicia's detention to inquire with DHS

about his immigration status.

CLASS ALLEGATIONS

168. This is a class action seeking declaratory and injunctive relief under Federal Rule of Civil Procedure 23(b)(2) on behalf of Plaintiffs and all other similarly situated individuals.

169. The appropriate statute of limitations for a civil rights claim under 42

38

Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 39 of 49
U.S.C. 1983 is the time-period applicable to personal injury actions. See, e.g., Wilson v. Garcia, 471 U.S. 261 (1985). Montana has a three-year statute of limitations for general personal injury actions. MCA§ 27-2-204(1).
170. The class that Plaintiffs seek to represent consists of: All Latino persons who, since October 7, 2010, have been or will be in the future, stopped, detained, questioned or searched by Montana Highway Patrol officers while driving or sitting in a vehicle on a public roadway or parking area in the State of Montana.
171. This class is so numerous that joinder of all members is impracticable. 172. To generally support the numerosity of the class, several articles and press releases, going back to at least September 5, 2000, describe Montana Highway Patrol officers' involvement in detaining Latinos residing and passing through Montana based on suspected immigration status violations. [See Collected Articles and Press Releases, attached as Ex. D.] On information and belief, this publically-available information constitutes only a small segment of the class members affected. Because these articles and press releases are skewed toward reporting arrests of individuals who lacked valid immigration status, they are not fully representative of class members, like Plaintiff Jose Rios-Diaz, who never faced any charges as a result of the violation of their constitutional rights.
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Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 40 of 49
173. There are questions of law and fact common to all members of the class and all class members have been directly affected by the challenged actions of Defendants. Although the factual circumstances of the individual stops involving the named Plaintiffs and class members may differ, they claim generally that Montana Highway Patrol has a policy of racial profiling, in violation of the Fourteenth Amendment, which leads officers to detain individuals without reasonable suspicion or probable cause that they committed a crime, in violation of the Fourth Amendment. Each putative class member has been or will be subjected to discriminatory stops, impermissibly using race as a factor in questioning, detentions, arrests and/or searches conducted by Defendants without consent. Each putative class member has been or will be subjected to stops, detentions, interrogations and/or searches, pretextually and/or without any reasonable, articulable suspicion or probable cause that such class member had committed a crime, and in a manner to which Caucasian drivers and passengers in vehicles in the State of Montana are generally not subjected.
174. The claims and defenses of the representative Plaintiffs are typical of the claims and defenses of the class.
175. The representative Plaintiffs have no conflicts of interest with other class members, and will fairly and adequately protect the interests of the class.
176. The representative Plaintiffs complain of a pattern or practice that is
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Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 41 of 49
generally applicable to the class as a whole. Defendants in this case have taken actions in violation of the class members' constitutional rights, which are grounds generally applicable to the class, and the requested injunctions and declaratory judgments would provide relief to each member of the class from these constitutional violations.
177. Plaintiffs' counsel is competent and experienced m class action litigation of the type brought here.
REQUISITES FOR RELIEF 178. As a result of the conduct of Defendants described above, Plaintiffs have been denied their constitutional and civil rights. Defendants' policies, practices, conduct and acts alleged herein have resulted and will continue to result in irreparable injury to Plaintiffs, including but not limited to further violations of their constitutional and civil rights. 179. Plaintiffs have no plain, adequate or complete remedy at law to address the wrongs described herein. Plaintiffs therefore seek prospective injunctive and declaratory relief restraining Defendants from continuing to engage in and enforce the unlawful and unconstitutional policies, practices, conduct and acts described herein. 180. The provisions of MCA § 2-9-301, requiring certain "claims" against
41

Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 42 of 49
the state to be first presented to the Department of Administration are not applicable here, because the prospective declaratory and injunctive relief sought herein is not a "claim" under MCA§ 2-9-101.
CLAIMS FOR RELIEF COUNT I: EQUAL PROTECTION
(Fourteenth Amendment) 181. Plaintiff hereby incorporate by this reference all allegations of the preceding paragraphs of this Complaint as if fully set forth herein. 182. As Latino persons, Plaintiffs are members of a protected class. 183. As Latino persons, those individuals stopped, detained, questioned or searched by Montana Highway Patrol officers during the class period are members of a protected class. 184. Defendants, acting under color of law and in concert with one another, engaged, and continue to engage, in profiling and discriminatory treatment of Plaintiffs and other Latino individuals based on their race, color and/or ethnicity. 185. Defendants have acted pretextually and impermissibly used race as a factor in forming reasonable suspicion or probable cause to prolong a stop, detention, search and/or to arrest of Plaintiffs or any of the other Latino individuals referred to above based on suspicion of immigration status violations.
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186. By purposefully stopping, detaining, questioning, searching and/or arresting Plaintiffs and subjecting them to different, burdensome and injurious treatment because of their race, color and/or ethnicity, Defendants deprived Plaintiffs and members of the plaintiff class of the equal protection of the law within the meaning of the Fourteenth Amendment to the U.S. Constitution.
187. These actions violated Plaintiffs' and class members' Fourteenth Amendment rights and 42 U.S.C. § 1983.
188. Defendants, acting under color of law and in concert with one another, exceeded and/or abused the authority granted to them under state and federal law.
189. By their conduct described above, Defendants have devised and implemented a policy, custom and practice of illegally prolonging a stop, and detaining, questioning or searching Latino individuals because of their race, color and/or ethnicity.
190. Defendants' actions have caused and will continue to cause Plaintiffs and other similarly situated individuals to suffer public humiliation and additional harms, and be subjected to unlawful discrimination unless these actions are stopped.
191. As a direct, proximate result of Defendants' wrongful conduct, Plaintiffs and class members have suffered and will continue to suffer significant
43

Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 44 of 49
and substantial injuries. COUNT II: UNREASONABLE SEARCH AND SEIZURE (Fourth and Fourteenth Amendments)
192. Plaintiff hereby incorporate by this reference all allegations of the preceding paragraphs of this Complaint as if fully set forth herein.
193. Pursuant to the Fourth and Fourteenth Amendments to the U.S. Constitution, state and local governments are prohibited from conducting unreasonable searches and seizures.
194. Defendants, acting under color of law and in concert with one another, stopped, seized, searched, arrested and/or impermissibly extended stops of Plaintiffs, pretextually, for racially motivated reasons and without probable cause or reasonable suspicion that they had violated the law. Such conduct violated the Fourth Amendment guarantee against unreasonable searches and seizures, the Fourteenth Amendment, and 42 U.S.C. § 1983.
195. Defendants violate 42 U.S.C. § 1983 because the unconstitutional policy, practice, and custom was specifically instructed by final policymakers, actions of subordinates were approved and authorized by the final policymakers, and there was a deliberate indifference to an obvious need for patrol officer training, such that this lack of training would inevitably result in a patrol officer violating individuals' rights.
44

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196. Upon information and belief, the Defendants, acting under color of law and in concert with one another, have engaged in a custom, practice and policy of stopping, seizing, searching, arresting and/or impermissibly extending stops of other Latino individuals in Montana, pretextually, for racially motivated reasons and without probable cause or reasonable suspicion that they had committed any crime under their jurisdiction or authority.
197. Defendants, acting under color of law and in concert with one another, exceeded and/or abused the authority granted to them under state and federal law.
198. Defendants' actions have caused and will continue to cause Plaintiffs and other similarly situated individuals to suffer public humiliation and additional harms, and be subjected to unlawful discrimination unless these actions are stopped.
COUNTS III AND IV: VIOLATIONS OF MONTANA CONSTITUTION ARTICLE II§§ 4, 11 199. Plaintiff hereby incorporate by this reference all allegations of the preceding paragraphs of this Complaint as if fully set forth herein. 200. Article II, § 4 of the Montana Constitution provides: "The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall
45

Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 46 of 49
discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas."
201. Article II, § 11 of the Montana Constitution provides: "The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures."
202. By their wrongful conduct described above, Defendants, acting under color of law and in concert with one another, have violated the rights guaranteed to Plaintiffs and other similarly situated individuals under Article II, §§ 4 and 11 of the Montana Constitution.
203. Defendants' have caused and will continue to cause Plaintiffs and other similarly situated individuals to be subjected to unlawful discrimination, suffer public humiliation, and additional harms unless these actions are stopped.
COUNT V: RACE DISCRIMINATION IN FEDERALLY FUNDED PROGRAMS
204. Plaintiff hereby incorporate by this reference all allegations of the preceding paragraphs of this Complaint as if fully set forth herein.
205. Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, provides: "no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial
46

Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 47 of 49
assistance." 206. On information and belief, the Montana Highway Patrol and Montana
Department of Justice receive federal funding and other financial assistance from the U.S. Department of Justice and other federal agencies. As a recipient of federal financial assistance, they are required to conduct their activities in a racially nondiscriminatory manner pursuant to Title VI of the Civil Rights Act of 1964.
207. Federal regulations implementing Title VI further provide that no program receiving financial assistance through the DOJ shall utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color and/or ethnicity, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color and/or ethnicity.
208. The methods employed by Defendants discriminate against individuals based on their race, color and/or ethnicity as described herein.
209. Defendants' violations of 42 U.S.C. §2000d and its implementing regulations have caused and will continue to cause Plaintiffs and other similarly situated individuals public humiliation and additional harms in that they will continue to be subjected to unlawful discrimination unless it is stopped.
47

Case 2:13-cv-00077-DLC-CSO Document 1 Filed 10/07/13 Page 48 of 49
DEMAND FOR RELIEF WHEREFORE, Plaintiffs, individually and on behalf of a class of all those similarly situated, respectfully demand judgment against Defendants awarding the following: A. A declaratory judgment pursuant to 28 U.S.C. § 2201and2202 that
Defendants have engaged in discrimination based on race, color and/or ethnicity and denied Plaintiffs and plaintiff class equal protection of the laws in violation of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. §1983; B. A declaratory judgment pursuant to 28 U.S.C. § 2201and2202 that Defendants' stops, interrogations, detentions, searches and/or arrests of Plaintiffs and other similarly situated individuals without probable cause or reasonable, articulable suspicion to believe that they had committed a crime violated the Fourth Amendment guarantee against unreasonable searches and seizures, the Fourteenth Amendment and 42 U.S.C. § 1983; C. Declaratory judgments pursuant to 28 U.S.C. § 2201 and 2202 that Defendants' actions are unconstitutional because they violate the rights of Plaintiffs and other similarly situated individuals provided by Article II§§ 4 and 11 of the Montana Constitution;
48

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D. A declaratory judgment pursuant to 28 U.S.C. § 2201and2202 that Defendants engaged in race discrimination in violation of Title VI of the Civil Rights Act of 1964 and 42 C.F.R. §101 et. seq.;
E. A preliminary and permanent injunction prohibiting Defendants from continuing to engage in race, color and/or ethnicity-based discrimination as described herein and to put into place safeguards sufficient to ensure that such discrimination does not continue in the future;
F. A preliminary and permanent injunction prohibiting Defendants from exceeding the limits of their authority under state and federal law;
G. An award of attorneys' fees and costs of suit, plus interest, pursuant to 42 U.S.C. §1988; and
H. Any other and further relief that this Court deems just and proper.
Respectfully submitted this 7th day of October 2013.
By: Isl Shahid Haque-Hausrath
Shahid Haque-Hausrath BORDER CROSSING LAW FIRM, P.C. 312 N. Ewing St., 2°d Floor Helena, MT 59601 (406) 594-2004 (direct) (888) 594-2179 (fax) Shahid@bordercrossinglaw.com
49

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 1 of 56
EXHIBIT A

( ( Case 2:13-cv-00077-DLC-CSO ·,

Document 1-2

Filed .

10"·/07/13

Page 2 of 56

. .}
.

... · .·i

JUL 10 2013

Elizabeth A. Best, Esq. BEST LAW OFFICES, P.C. ·425 Third Avenue North
P.O. Box 2114 Great Falls, Montana 59403..2114 Telephone: (406) 452.2933
(406) 452.9920 bestlawoffices@gmail.com

HUMAN .RIGH2'S BU.REAU

Attorney for the Charging Party

MONTANA DEPARTME.NT OF LABOR & INDUSTRY Human ..ghts Bureau
POBoxl728
Helena MT 59624
(406) 444-2798 (fax)

Glenn D. c/o Best Law Offices, P.C. 425 Third Ave. No.
P.O. Box 2114 Great Falls, MT 59403,
Charging Party,
vs.

HR Case No. Q./c3/{)I4.B-¥1£. r

..· ..

··'

State ofMontana,

Montana High\vay

and

Montana Department ofJustice,

2SSO Prospect Ave.

P.0; Box 201419

Helena, MT 59620..1419,

Respondents.

ofDiscrimination

Case 2:13-cv-00077,..-.,DLC-CSO Document 1-2 Filed 10/07/13 Page 3 of 56 (.... "!

COMPLAIN'[ Oli' DISCRJMINATION

The undersigned, Glenn D. Quinnell, states as follows:

J. My name Is

Quinnell. I am the charging Party. I am a Trooper in the Montana

Highway Patrol (MHP) based in Glendive. The MHP is a part of the State of Montana .

Department of Justice (DOJ). I have worked for the MHP for 8

I can be reached

through my lawyer, Elizabeth Best, BBST LAW OFFICES P.C., (406) 452.2933.

2. Respondents are Kenton

the State of Montana, the Montana DOJ, and the ,

Montana Highway _Patrpl. Respondent Hickethier is a supervisor with the title of Chief

Administrator ofthe MHP ("Chief».

.

.

3. Respondents harassed me based upon gender, arid retaliated against me for engaging in

protected activity, i.e., objecting to gender, race, and ethnicity based harassment and

discrimination.

4. The foUowing facts support my claim:

a. During the Summer of 2011, I reported discriminatory conduct by Respondent Hickethier, who was then an MHP Captain. I witnessed Hickethier committing what I understood, based on MHP training, to be sexual harassment of women
while. attending a law enforcement confei:ence in Phoenix.

b. During the same conference, Hickethier made

sex-based insults about

my wife, and my sexual relationship with my wife. During a seminar at the

conference, Hickethier made offensive gender-based comments about a female

speaker, the Attorney General for the State ofArizona.

·

c. During .the same conference, Hickethier made race, national origin and ethnic

based .offensive comments. In one instance Hickethier ordered me to arrest

suspects I belipved might be illegally In the country regardiess of whether the

facts supported an offense for which· a person

be arrested under Montana

Jaw. His instructions were to get them to jail one way or another so Federal

authorities could place detainers on them. When others and I said we would not

violate a person's civil rights he focused on me and said l would or I would be

done. I understood this to be a threat to fire me ifl did not make the illegal arrests.

The next day, Hickethier pulled me aside and told me to stop being so 41hard

hea<!ed.', In another Incident Hickethier asked me what l had done the previous

evening, since I had not been out socializing with his group. I told him I had

dinner with some troopers from another state. He $aid, "Yeah. I saw. Guess once

you go black you never go baek." One of the individuals I had been with was

black. Hickethier lmows I have black relatives.

Complaint ofDiscrimination

2

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 4 of 56

. (

..,
.. i

d. I reported the above conduct to my Sergeant, who reported it to my Captain,

Captain Hilbert. Captain Hilbert reported this conduct to LTC Huseby, who

asked me for a report, which I provided to him.

·

e. Despite being told this conduct would be investigated, I am unaware ofthe results

of the

I am aware that Lt. Colonel Huseby made comments

questioning my truthfulness and

relating to my report.

f. During the period in which I understood the matter was being investigated. Hickethier called me at home and me to "forgive and forget."

g. Since the time ofmy report, Hickethier has been promoted twice, and now heads · theMHP.

h. I have tested for promotion twice since Hickethier was promoted to ChiefofIvIHP in January 2013. Each time, I was passed over. The promotion process, which
used to be transparent, is not transparent any more.

am i. I well qualified for a promotion. My training and experience before and during

my tenure with the MHP has been recognized by MHP leadership on many

occasions. I have

appointed Aeting Sergeant in the absence of my

detachment Commander. I have been named MHP Trooper ofthe year, Montana

Narcotics Officers Association Narcotics Officer of the Year and DOJ Narcotics
Officer of the Year. I have never been disciplined. I always score vecy well on the

evaluation scale. I have been a field training officer for 4 years and have often

been assigned trainees in all 3

ofthe field training process. I also

as

a Camp Commander for the MHP Academy. I am a firearms and taser instructor. I

was told I scored in the top S candidates on both occasions after the Commanders'

process. evaluation. To date, Respondents have provided me no feedback about how I

scored on other segments of the

Eleven sergeants have been promoted

dW'ing the period in which I was passed over.

j. The first tbne I was passed over occurred on January 16, 2013. The second time I
was passed over was on June ts, 2013. Since Hickethier was promoted to Chief,
the criteria for promotions was changed several times. It now includes a test with
a result classified as ''sociability." I have been told that my scores on ''sociability" have been interpreted to mean I scored low in this area, which might make "networking" difficult "Networking" is the tenn used by Hickethier to describe whether the applicant is willing to go ·out and drink with Hickethier and others
during out-of-town conferences and trainings. The baseline for comparison on this test was established by testing four persons who were recently promoted or oft'ered promotions to Captain and who hand picked by MHP command staff, Including Hickethier. Three ofthose four were persons who, as part oftheir duties, regularly accompanied Hickethier to conferences and trainings.

Complaint o f

3

c.., Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 5 of 56 . .. )

le. In addition to the retaliation by refusing to c9nsider me for promotion, Hickethier · has engaged in a continuing practice and routine of attempting to embarrass me and humiliate me in public because I am not willing to participate in his partying
and carousing, and a continuing practice ofostracizing me at MHP related events. While I have not been to any out ofstate conferences since the one in Phoenix, I have been told that the behavior I have reported continues.

I. I attempted to file a grievance about the above-described conduct with my union under the Collective Bargaining Agreement (CBA), but my union representative
has advised me that this is not covered by the CBA.

m. Respondents have continued to tolerate, ratify, and encourage Hickethier's discriminatory conduct, which led to his retaliation against.me.

n. Responden\J have refused to stop Hickethier's conduct, and instead have n.t-titied
it, participated, and encouraged it. They have created adverse job conditions for me.

S. This is to request that tlie HRB investigate the discrimination and retaliation I have

described above. l request that the HRB issue an injunction to stop the retaliation and

harassment.

·

6. Each of the Respondents violated my rights under the Montana Human Rights Act and Oovernmental.Code of.Fair Practices, specifically Sections 49-2-303 and 49-2-308 and 49·3-201 and 49-3-209.

7. I hereby request fair and just compensation for my mental and emotional distress, humiliation, embarrassment, and lost compensation caused by ReapondeniS• unlawful
conduct. I request compensation for reasonable attorneys' fees and costs necessitated by Responderits' unlawful conduct.

DATBD this_$__ day ofJuly, 2013.

Ill Ill
Complaint o f Discrimination

Glenn D. Quinnell
4

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 6 of 56
c·.·,

State ofMontana Dawson County

VERIFICATION
) )ss: )

The undersigned, Glenn D. QuiMell, states that the facts alleged in the foregoing

Complaint ofDiscrimination are true and accurate to the best ofmy knowledge and belief.

Signed

day ofJuly, 2013.

D. Quinnell

Subscribed and sworn to before me this

(SEAL)

·KEU.YKUN K '

ill1Nlr4i

NOTARYPUBU fllrtbe

-. ·=-F

ofJuly, 2013.
.

.
\C fC

Residing at:

<Slt1a1terofMt oM ntanal

My commission expires:

·C:Ol'J

Complaint of Discrimination

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 7 of 56
EXHIBITB

Case 2:13-cv-00077-DLC-CSO.STDAoTcEuOmFent 1-2 Fil.ed 10/07/13 Page 8 of 56

DEPART'l\llBl\lf '.(JF Jl.ISTIOE

CENTRALSERVlC:ES

SERVICES

. •·

.

· ·

PO Box 201404

:i • ' ·aria sgszo.;1404

.Tim Fox Gen.era!

Telephone: (406) 444-1910 . FAx: (406) 44H887

Jllly 1S,Wl3
Montana Qepar,trnen.t of IJ!b6r and Jnd.ustry
Division Aitn: l<lr.h Cobos, •oata l\llanager PO.Box 1728 .Helena MT

RECEIVED
JUL 2 9 2013

RE: Response to .Charge of Discrimination, Charge Number 0131016372

· ·

··

<.:iololto:>1/

FPllowlng ls ihe Montana Depar:tme.nt of Justice's· (Respondent) resp<;>nse to the charge of dlse:rlmlnatlon, charge number

0131016372, filed

petitioner, Glenn o.

· ·

· ··

·

· ··

. 0\

(

Tpe M_oritana

of Justice Is a public entl.ty 1,1nder the direction of the publli:ly elected Montana Attorney General.

There are no organization owners.

·

•

•

6

•

•

•' •

•

•

PARTICULARS OF.THE CHARGE (AND RESPONSE)

A. During th.E!
Captain•.1 women while

of 2011, I repqrte.d

conq1,1ct by

Hickethier

I understood1 ba$ed

a laW enforcement coofei'ent:e hi

Hickethier, w.ho was an MHP l\llHP training, tO be sexual harass.melit of

ANSWER_: Condltl.or:ial Admit. Mr. q.u1nnen re.ported '\1riprofessional :behavior" by Responpent Hickethier, .but did not

that

discriminated

hara.sse!'f

B, . Pur!n.g ;the ,same

ttl4!!thie,r mac:le.

se)!·based

riJy wife, and my sexual relationship

with riiy wife. During a semihar at the conference; Hickethier made .offensive gelider•based .comments about .a

female speaker, :the Attorney General

State of Arizona;

· ·

A_NSWER: Admit.

C. During

<;pnference, Hlck.ethier i:na.c:fe r11ce, natlOOi!I!

ba$ed o.ffenslve commems, In gne

Law.... ln$taoce

ordered me to

I bellevec:f might be

11'.l the .couritrY regardless of Whettier

the fac'ts 'si.i:pported Clil offense for Which .;· per$oil coul!f be a'ifE!steci IJO.l:ler Montana

In ilnother Incident

l,jicke.thier asked me W:hat ! h?td the previol.!s

since I had l}<>t ,been out

with his group. ·1told

him I had dinner with some troi;tpers from another $tate•. He said, "Yei!h, I Gl!es$ once you go

.• .•

·,.,

• ,

.

•

' • ••

•. ·

•

'

,

you never •

ANSWER: Admit.
o. I reported !lb.ave cond1,1c:;t to my .Sergea11t, who reported it .to my Captain, Captain Hilbert. Captain Hilbert
reporte.d this conduct to LTC Huseby, who asked me for a report, whlchlprovlded to him.

Admit.

my E. Oesplte belr:ig told this co11duct would be lnvestlpted, I am unaware .ofthe results of the lnvestigiltion. I ilm aw<1re

that Lt. Colonel Huseby made CQrilments questlcm.lng my

and. lfitegrity relating i:O rep9rt.

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 9 of 56

.ANS'll(E.R: Deny. An impartial ln\festlgatfon was cOOQUcted by Lt. Colonel Huseby, of .the Montana

Patrol,

''

..resultln.g In formal dlsdpUne of Hickethier. (/HTACHl\llENtB)

.

.

. ...

'

F. DurlnJ ttie period 1:1'! .which I
me to "forgive and forget''.

the matter was being

Hickethier <;ailecl me 11.t home and ask.ed

·

· ·

·

The Montanci Departm!!nt of Justice can neither a.elmIt nor deny (:barge.

G. Since the time of my.report, Hickethier.has .been promoted twice, and n()w heads tile MHP.

ANSWER: Admit.

.H. I have testeclfor promotion twice since Hlcket/ller was promoted to Chief of rviHP In Januciiy 2013. Each time I was
passed over. the promotl9n process, which used t.o be transparent, Is not tra.nsparent any more.

ANSWER: Deny. Mr. Ql.Jlnnell has. tested for promptlOh once under CQlohel TooleY in .Oecember 2012 ancl once l!nder
Colonel H.lckethier. In May 2013. In neither Instance was M.r. Q,ulnriell "passed over" for promotion. During the

December 2012 scored selection process; Mr. Quinnell placed lih; There vvere 5 positions filled with this selection

·May process (ATTACHMENT C}. Dllrfng ttie 201,3 scored $election

Mr. Qolnl'.lell placed 111h. There were 6

positlorjs filled with this selection process

Tfle promot!c;m prq<:ess consists of .an employment val!datecl Pri;!flle XT !!SSes.sment overall matcfl score weighted

Peer Evaluation.s weight,ed 15%; comrncinders .Evaluations

and a panel Behavioral Based

Interview weighted 35%. See ATTACHMENT E for Mr. Qull')neil's scores in.each pha'se for the December 2012

selection process .ancl ATTACHEMENT Ffor his scores In each phase of the May i013 seiec.tlon process.

In the Sergeants promotlQn.al proc;ess vaca.ncy al')n()UOCerrierit Y,las the selectl.ori process criteria to be used.

(AT;rACHMENT Gand H) Since spring of 201.3 It has been toe practice of the ivlontah.E! Department of Justice, Human

Services Bure.a\J offer to meet with

Internal post!ngs (o re\llew their

provide

feedback, .arid additional training as

for the selectloii

.. ·0.h June 19, 2ql3 all

for the Mily

2013 Sergeants promotlohal process we're notified via email. by the HI\

i>artn.er: t() MHP that she and Lt.

Colonel Watson 'were .avallabie for the feedbac;k meetings, at the reciue$t Of the applicants. Mr: Quinnell
same day, requestfog ameeting which wlll be scheduled. (ATTACHMENT I)

I. I am weli .Qu!!!ifie.d f9r promotion. ;•. 1.hilVE! 11ever been dlsclp!lne.c;l, ;., 1..was told I scorec;l In the toP 5 candidates on

bot'1 occasions after the .Commanders' evalu.ation. To date, Respondent$ have provided me no feedback ab.out how I

on other segments of the process.

over.

' ' .' ' '

sergeants have been promoted ·during the period In. which J was

" ' ''

' . '' . .

fylr. ANSWE;R:

Admit. Mr. Quinnell has the qualifications

to meet the minimum quallflc11tlons for

prom91.:ion to a Sergeant, His per$onnel file 1.s free qf f9rmal dlsclpUn(!:.

was tied to'i 5t1i cm the

•Commanders'. Evaluation phase of the DE!cember 2012 selectlon ptdcess and .tied for 5th In the Commanders'

Eva'luation phase of the May 2013 seledfori process.. There were 11 Troopers promoted lo Sergeant during the tWO

Jn which Mr. Qu(nneU P.articlpated and allege$

· · ···

J. The .first time I was passed over occurred on January 16, 2013. The sei;ond time .I was passed over was on June 15,
Since Hickethier was prompted to Chief, the criteria for promotions was d111nged several times. It npw

includes a.

a result classified as "sociabllity", I /lave

that r:ny

or:i

have been

interpreted to mean.I scored low lri this area, which injght make "networking" difficult. "Networking" Is the term

usel:I by Hickethier to descri.be whether the applicant js Wiiiing to go out and drink With Hickethier and

during

arid trainings, The

for cor11parlsonon this t.est was establl.shed by testing fo(Jr

person,s. i/Jho r'efE;i

.or

to·. Cc!ptain and wh.o

.by MHP

·...e

.1 e , reg ar

Hickethier confenmces and tralnl.ngs.

. .

ANSWER: Deny. Mr. Quinnell was not "passed over'' for promotion. He was not promoted because he was not

among mqstqua)lfied and

scoring

for the v.acarit.wsltlons.

The selection process for Serjeants was developed by Colonel Huseby and Majors Butler and Watson In

c;onsu!tatlon with the Montana Oepartmtmt of justice's· l·h.iman

services Bi.!reau t.he. fall 2012, unqer

Colonel Tooley1 and did not change during the time of these twci selection processes (December 2012- May 2013}.

Case 2O:n1th3.e-cv-00)0'Q;7; a7n-DenLjpCJo-yCmeSntO Document 1f-p2rj()bFiled 10/07/13 PaJ)g, eJY.lr1.; 0QliioJiQf e5'll6nad :ah

fob

·of

includes bci!h.

JQ$%).

!'.inly a.eh;wto.ra!

Mr. O.uinmin was outsldeloe

·

_(lily one $cale .poilitJ was

·

Soc;)aWlify

.• •Th!Ol

.for Mr.·

. .. :1fti11Y siow #>.

the

of

teamwork Md to .tovP.l'v'.e the teal'.1'1 :la tbe ,d1scussJ9'1$ · }•i:l.W'

V.ilJI be.

Addit!bnal :c.onslder.atloos

possibility that for Mr.

.-to the

within
cbailenge

elfteaaril

•. ·Plscµssipos ;with hill) sh()µld

ttie

The Wa_tsqn.

Tt)en

l\/laM)cior.H#eiicwkeatshideervwealospne6dtin1.l1/sc1inigvce;da.InndtldhaetesseiseeCletlcOtert.dcir

Hie

Tooley and. neWIY promoted Lt. Colonel
'indh1lduals to base the Performance Mpdel 9r

on the development of the selection process.

K. In ad.c;li.tlon t!J _the

by refuslJ'lg to

r:n.e for pf()n'.Jci,1qntttickethler has engaged In a continuing

practice anc! routine of attempting to

rne hum111ate 01 'beta use Lam iiotwllliog to

to in "bis partying and carO:usir:ii; aod a conth1u1ng

Pf

. been. ;iny out of state

since the one· in )'h_qenix, I have

MHI>'

events. wh1ie I Mve not

told th.at the behavior I, have reported

con.tinu·es.

AN$WER: Deny. Mr. (l1.1innel! was fully considered as a ·candidate for Jirornotlon to Sergecint In both the December 2012 and May 2013 selection

L. I attempted.to file a grievance abo1,.1t:th.e

rnY union under the Collectlve Batgalnll)g

Agreement (CBA),:but my.union representative has advised me that thlS'l"s not covered by the CBA. ·

ANSWER: jhe

Departrrient9f

c;an neither aclm.lt .denY..thls cliarge.

M. Respondent,$ have continued to tolerate, i.atify, and encourage .l:ilckethler's d)scrlmlnatory concM:t, which led to his

rei:a llatloll against iTJe, . .

.

.

. .

.

ANSWER; Deny. Then Major Hickethier was formally disciplined for hi$ i:i.nprofesslonal beha\ilor In September 2ol1

(ATTACHiYJENT L).

. ... .

.

.

N. Respondents have refu.sed to stop Hlckethier's conduct; and Instead hc1ve ratified It, participated, .and encouraged It.

ihey.havia created adverse Jo6 ccind1t1onst9.r me. .

. ..

. ..

ANSWER:

Theil

formally dls.c;lplined f()f :Ji1s unprofessional be!liivlor In

or (ATrAC!ii'vlENT L). There been no further c0mp!ain.ts allout colonel

dis.crlminatlon harassment.

.

Professlonailsm or c;i!legatlol)s of

The Mcint.ana D_epartment of Justice

that Mr.

not file a di,S.cfhi'llilatlon or harassment complaint

Respondent Hicketh.ler 1.n b1Jtt21tlier a. complalnt of unptofesslor.iallsm. In

Mr. O.vlnnell fa lied to i:lemonstrate

a

the complaint cif

and retaliatory d1Jring tM s¢iei:tion processes If! Oecem!ler io12 a.nd

fvlay_of 2013. Therefore, we are requesting a i10 reasonable ca.use finding. .

.

Attachments

t;c: Tim Fox, Morita.na

General

Sco.tt Darkenwald, MT A«orney General's Chief of Staff

Peter funk, Department bf Justice Attorney

·

.

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 11 of 56

· HL1seby, B1.1tch

From:
$erlt: · to:

.. Qulnneu, Glenn . . . . .

:Saturday, At,i9ust 27; 2011 2:53 PM

Huseby·, Butch

·

RE: Afizona ·

Lt Colonel. I will do my best to ghre

accurately. I would first like to say I have agood deal of respect for what

Captain Hickethier has done for tile Interdiction pr6gram and fcirthe Patrol. That being said, I am disappointed with

wha.t.1 f:laye o.bserveci and l:>c:!en exposed to during the recent trips I have made with .the· Captain.

My discomfort with the trip and being around Captain Hickethier started at the airport In Phoenix. As soon as he picked

Trooper Muri and Myse.lf up the "Antics';· started. He w,ould see women on sldewaiks and roll down our

·

.cind s4gge.st we them If they knew where to find the ('Marriot" or some other .location In an obvious • •

attempt to get an introduction. I f()Ul)d thls1n poor taste. He told us thatthe r.iJghtHfewas good In Phqenlx. I knew then

·and.there I wotild beavold,ing goJng out with thegroup.·Not that I have

a drink or a meal, but I have

found .it to be bad policy t() party with my

y.Je had lunch a.nd I Wen.t tq my room ancl fell asleep, as I had b.egllh

my day at 0230 driving to the airport in Dickinson. After several calis I finally went over to the building that was hostlhg
to fhe training and 1:i·ad one beer with the grollp before returr:iirig the hotel we were stCJYing In.

The n.ext day we all met cind went to the training. morning

were ·.giving thelf.presentatlon, Capt, Hickithier

was sitting

at a large table. turned to me and ask.ed how much younger than me my wife was; 'I said 2o

He l9oked at me s.aid" I'll bet shefvcks yo1,1 sideways". lwa.s so ta.ken aback I don't even remeinbermyreply. I ·

was upsetbut decided not to say anything about It :at the time. After the

fpr the day. ended we returned to the

Sergeant Mantooth; Troopers Muri: arid Fetterhoff, Captain HICktthler .and Myself. Sergeant Mantooths uncle, an

FBI speciai ager;it .was: in town and Kelly had plans for diriherwith him. I told them I wo'Uld just b.e going out for a bite

tl:ien staying in to wa.tcl:l TV. About a half hour later Kelly called and said he and his uncle were having ctlnrier In a steak

ho .rie:a( where the

us

and as.ked us toj()il'l them. I said I Wolilq. I then called Ml.jrl, ·

fetterhof an(J Hick. Muri and Fetterhof answered and said they would go aiong. Capt. Hick satd he was.busy so I

tol.d him. where we were .go. in.g a. n.d the•rest of us. . le.ft. · · · ··

·· ·· · · ·

·

Kellts uncle, wh.om.1

is name.d

was telling war s.tories about his. career. He was finishing up one that

i.nvolved

and Customs Enforcment when capt.:Hlck arrived. Wt2 had ordered food but had not eaten I

to tefi ·Steve. the difficulties we with getting ICE tCi take suspects In our area when
and state.d that I was doing itwi.ong. He said we were to arrest th.em for whatever offense we

Hick
them tor and

In hold thein for ICE. He

he made l;l:rrangements With lC.E, Heiena 13nd h.ad been

that would

an go anywhere in. the state to ·get Illegals. He further stated that he had sent out email regarding that. I told him that

certa.i.niy if i had an

1. couid arrest for!

that I had cal.led th(! number he :had plit out and had ..

declined more than once. I told him I could not

someone for a $20 speed ticket. Case iaw Is dear In Mt ohthat He

said I had to.: I said again that I

nov piped In at of')e

and said t.he same as me, that we hcid tried and ICE

wouldn't come without more tha.n just suspected illegal status. The exchange went back and forth a couple times and

•

II

go . . ..,,

.

"'

..

. ,. , ... ··•'

rights case will probably OK;'.

•

. ... ..

'

•

·-

'•

..

'

. ·'···

·II

I ·.

... -

including me, laughed. I wasn't taking It that serious at that ,point since we ·

were off dufY. A.t tha.t point Captain Hick threw down sqme m911ey, Sa.id "Im done with Qulnnell" 'and left. Everyone just

got quiet. I. told Kelly, "This Is why I don't socialize with. co-workers, especii;!Uy superiors." I excused myself and went

back to my room. It. was probably abo.ut f,3 PM.

l clidn't.sleep much tl:lat night. The next day I could tell that Capt. Hick was still upset b.ut he didn't say.anything Initially.

Kelly.pulled n:ie aside and told me that Capt. Hickithier would be pulllng me aside to talk later and to just let him his

say. During the first

session he p.t;1lled Ille olJt In to the lobby and sa.ld we n.eeded to talk. He told me I needed

to work on not beif1g 'so Bullheaded. He also stated that I needecl to read the emails I was sent and follow the .

procedures in them. I told him I believed I had. The night before when I got back to my rooni I double checked to make

....

Case .

2:13-cv-00077. -DLC-CSO

Document 1-2

Filed 10/07/13

Pa. ge 12 of 56

sure i J1ad the email. I dld; I been following the

1q had pµt out with the associated 11umbe,rs to be

i;:C)lled. At no time i,ljd he adm1t to
talk and went back to the training. · · ·

at faultfor the intldent. After hlsreaction the night before Ijust let him

·

· ·

·

That n!ght I declineel :fo go out and
since I gq ...1. told him polot

at the hotei.
that I really

liickthler
f'n.uch of a

r'n¢ ffl

being at these functions

..Itoli:I him Iwas for tr.alnlng. My

are spent with my

I then we11t rnY own Way. I had 'i;linnerWlth 3 South Carolina Troopers, one of whom

happened to be .. The Qext day

Hlck badgered me about r)!Jt golhg put, te.Uing rne :1 missed the "fun". He

.asked me what I Isaid,"It)ad dinner with some Carolina guy$.'' He said'' We saw. Iguess once you black

you never go back.'' Ihad no Idea how to repJy. And didn't. f couldn't tellJf he was quE!sfionlng my sexual orientation or

was just l;>eing racist. Either way Ifound it to be a totally offensive and inappropriate comment..

That same m.orn.i.ng di.iring training a

from the Arizona AG's office Was speaking to the group! 'She was

ob\fiously struggling with tier we-1ght. captain Hickethier turned to nie and said/'She Is really .good at her Job. Won aton

qt in a

the:qw of Phoenix tor bulldJf!g sldewa:lkS to c.los_e ·to her ass·.;, :i don't k.now If anyone

else heard-the comment but he didn't say It very quletly>I didn't laugh or even smiie; He said"

gotta admit

that'-s funny.ii He had used the line the: day before 1n·a more private setting and IreaUydidn't fif}d it that funny then. I

told him so.

·

for Iknow some of the other troops on the trip had experiences that they found amazing if not shocking regardillg the

Captains l:lehavior. 1will .let them speak

If they choose, but I know they tol_<,i nie of h_im being denied

access to at least one club for his behavior.

.

There was an. incident on a prio.r trip that Ipr()bably bettenne·ntion as well. Two Years ago Iwent to a JilDTA Conference

in Las Vegas. Again Iwent. out for·dinner the .first 11lgh.t, had a coupt:e drinks and went horne. Tht? next couple l'llght$ I

stayed In. last night 1

ln and went along to a c(>untrv oight Club

had been wanting to

visit. I was single aith.e time and figured what the heck. T:hlngs initially went well:. It Sergeant Moody, Trooper

Fetterhqf, rnyseif and

I had a co:up!e drin.ks 5Wltched to Stra:lght coke. Wefound a table· and I

started dancing·with a young -lady I met at the bar. Eventually we all walked ancf kind of did :our own thing. Abit

t.ater captain Hi.ck

me and said ''Come on.

s<?t some businesst() :hanclte.'; I followed

the table

We had been at. It was occupied by

couples Idid ncifkna.w. Capt H.lcksaid, ftold them they dc!i'i'tknow who

they messing with. ( therri we are Mont;:ma:Trqopers and t!'Jey h;:ive ou.r table.'' Long short, Moody a.nd

Fetterhof got the captain Ciut of the area and I made peacll! with the

apologl:zl(lg for the inddent. They made it

very clear they were -less than impre$5ed with the lncicient ;!Ind the agency as a wh.ole if that Was the way we conducted

ourselv·es.

·

Sir. I am not a tattletale. I Initially spoke of these incidents to Captain Hilbert and Sergeant Martin because they are

leaders

Itru:St an(:!

:;twas me:! up. Ido hot crave

arid

wish that I was not In

th.is s' i.t' u' a'ti.o.n. Itry.to trea't.those around me w. ith re.spe.ct and expec. t the same. I would prefer the image that either
agencies hav.e pf IJe one of professionalism.

Gleim QµUµieij
MHP 206
Mc>ntana Highway Patrol
Detachment 511 Office:
Cell:
•rservlce, l11fegrlty, Respect"

From: Huseby1 Butch

Se.nt:

August 26, 2011 8:18 AM

.

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 13 of 56

TQ: Qlilr\r'leit, .Glenn

·

·

captain Hilbert notified me that you qbserved some behaviors :in

Hfokethler.recently In Arizona that were not

be.¢ori1iog

c,>f ·his

position

as .·

a

·.

Please forward rne an email Wlth particulars .and 1Will look frito the matter;·

Thanks,

Butch

Deputy

MohtqnQ H.lO'h.Wqy PC,tral

(4Qq} 444.. Office

fell

.

1;servlce1 .Jiite- gr./,tY.,.Re$. pect"

------• .Infomiation from ESET NOD32 Antivirus, veraion ofvirus
The message.. wa,s c. hecked by ESET N. . O.I)32 AntivirUs. http:/./w' .v. ..iw.. .eset..com
_ _ _ _ Iilfonnation from ESET NOD32 Antivirus,-versiol.1 <)fvinJS signature
The message was checked ESET NOD32 Antiviius; .
http://ww\iv;eset.com·

6412 (20110826) 64l9 (20110829)

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 14 of 56

TO: FROM: DATE:

· :qft;ptain

.

Lle11tenant Colonel B!iteh

September 15, 2011

Wr•tten

violation of policy GR-1 (B-1., f.)

On August 27, 2011, I received a·:co:mplaint on you from a

jnappropriate COlnl11eiltS ybu made to him while attlie IIlD'fANatfonWide

Enforcement Meeting µi iP119enix, Arizona, the week of Au,gust 16th,

20 I J., Spe¢ifically.the commentS were .In

to .tlie

TroQper Gle,n.tl; Qifui.ell 'f!

a. joke ill regar4 to a f¢male insiru.¢tot'$weight, and a cQiruµeµt about l):Q<>Prr. .

dinner with black

from.North Carolina.. On August291h, 2011, I

presented the complaint to you in your office anc! yo:q to .respori,d. On August 30,

• 2011,

. . . t() the co.iup.laitit'.i:md to.ok .

for the Coinri:l.ents.

.

. .

.

.

. . ..

.

.

The

you made are in violation ofMHP policy GR-1 @·::!. :, f.)! The poliqy

specificaJly

that offi.9ers 'Will treat

sub.ordinates, ass66iates

· withJ·espect aild courtesy. Although this poliqy addresses fill wilf.onne(l m.¢ml>ers ofthe

has an even

level

for cc>nunan4 ·Af.o.qg wjfli tl1e. . ·

respo.tiSibilitles C>f a Pistdi:it Comtha,ndet yoiif

numdates· that y()u

·

at ajl

)'our positicm demap.ds t]Jat you

-Of comte,sy.and professiottaU$m in your beljavfor'and commtftiicaticms at all time.$. This

. Sitiiatiofi

that y6u have not done SO;

.

.

:For these J;easo!ls, 'you are J;iereby wained that,fµrthet Violations ofthis policy may result

in

disciplinary

and cow!! iµdu4e tenninatio1:1. ()f yotµ" employment:with

this agency. A copy oftbiS letter will be plaeed in your :Personnel file.

You 1llay provide a written re.sponse to this warnin.g. If you choose to do so, your .

response will be included with wa.ming iri Your p!3rsonnel file.. may tue a

•

.'

·_,

·.•:

• '

'

•

•

I.

•

you (Your signature ackriowledges· you have ha.4 the opportunity to revi.ew this notice, not
that necessarily agree wl.th

DATE

HQ-1603A

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 15 of 56

From:· sent:
To:
Cc: Subject:

.•: ',. .....

,; ...... , ..;.•••

•• ..;.:-.: .... · ..........-."-"'""""'._ .•,..

•.

.....

· Hickethier,

Wedne$ciEiY, June i2, 2013 1:40 PM Torti; Watst)n,

Grimes, Sh{lne; Kitchin, James; Armstrong,

Robert; Beck¢r;
Du!3'ne · · · ·

keith; .Hilpel\'Edward; tavlrj, Steve; Collins, Art; Bowers,

· · · · ··

· ·

Kristi;
sergeant Promotions

Henderson, June; Bowser, Natalia

Promotions:

connc>rSmith: Training Tony; Beehler: Columbus
Gilbert: . foe Kinsey: Lewistown se·an. F:lnlev: · Libby Troy Muri: ·eakkeri

La:rry Adorn.i and Jason Grover turned down the offered positions.....'..

LTC Butler arid I wlil make the calls In .the morning to the unsuccessful candidat(!s.. ·

Karen Wiil put a

out tp the field

the new

once we have

Thanks

again.

to.

e-·ve..r..y. qne

With

al.I

th .

e .

re.. c.e. nt

prpmotion

..

.

Respeitfully, Hick

raising the t>ar In. .t1ow we

Colonel Kenton E. Hickethier

1(1jJbW(lyPatroi · ·· ·

ChiefAdin/i!lsfr'1tor

2550 Prq$per;tAvem1e

MT

.

i/:06/444"'.3Z8JJ Fax 406/444-41.69

.cell: 406/403•l649

Service, IlttegrltY, lle$pect

our phone calls; ou.r people•

·. . D Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 16 of 56

.

.
.

. .

. .

.

. .

s...... 1T'"

. .
.

.·.· ·.·

· : ..·•·.

. .. ...... . . •'' .',.;.;,.;.

,

• . : •.. ·• • • • · '

' ,· +· ".· ' .....

Frolli:• $ehi: To;

Kerit ·· ·· H'·i.cke. th...ierI ...

Y'f

January 23; 2013 PM

She'.pherd, Kila; Henderson, June

FW: Sergeant Promotions

Ladles,

.

FYl..;......tha·nks for

you do I

·£ 11/ckfJthlifJr

Mt;

.. ... .

Fax 406/444-41.69

ci;ll:

.

$erv1ce, rf/te!Jtity, Re$pect :

H.IGl<ethler; ·Kent

sent: Tp:

Wednesday,eJ.0a.tniiuaa.r,r·yic2il3n;i

2013 8:23
EcigeU,

PM Grimes;

Sergeant Promotions

HJlbert, Edward;

Kitchin, James; Moody,

. Here arg yoµr new s_ergea.n.ts:

Helen.a • James sariderson

Havre

WJckQm

Uv1ogst9n ·De.rel< Browl'I

Ben liavron Jon P'Neli. ·

Traffic Safecy Resource Supervisor:

Kurt Sager

Please have the select.ed troopers. cl.ose

chapter.as a troqper an.d prepare them to take on their new roles. I

ask 11?ach of you to giye t_hem the next work to do so;

·

This was avery competitive proces.s with. niany others worthy of l;lelng a supervisor. P ease enco1Jrage t e unsuccess. u

applicants to

with the next

·

·

·

We wJll be µsing the current promotion list fo.r tl:tr;? 11e>(t three

after the three new captains are selected.

Colc:mel Watson and Major J3ut.ler wlll be notlfy_l_lig the rest of the tl"o\)pers in the morning.

Please wa:it for the fo.rr:nal announcel'l'.lent from Karen Norris to the field before you visit with your troops. Additlcmally, 1

need to take the list to the Attorney General's office for final approvat

· ·

·· · ·

,

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 17 of 56

·Thanks for everythingyou dol

Hick

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Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 18 of 56

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Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 19 of 56

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Bj;havlor8! Asses5ment Peer.E'vlilililtion Commanders' fi\liituation Panel Interview

· Percetttae:e ... 25%: 15% 25% .35% 100%

25;-00
9.-00 7.5-0 15;05 ..56:55

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Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 20 of 56

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Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 21 of 56

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Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 22 of 56

TO:
FR«;)M: J>ATE:.
SUB,JJi:(;T:

. Lt. C.01. Wat$on

'Jorn lh10.er

IUlilo.r

Uicketitter

D'isfrict C<imlriabders

•

hi tbe

ColoneiMkhael T. Tooley

··Ni>vember 24, 2012

Promotional Process -

Process
Detachment Com·mimders

·From the

cltjsing on November 23, 2012, the following candidates have "1PPlied

fot the. PetacJiment.Commandet

Disti'iet I Sco.tt·Bennett ·
. ·heh Gaston
Andrew Novak

. R.qbert $p:aqch

ri'istrict rr
Jasdn Grover . Josef K.JJisey

Disiffot.Ill
Benjamin Hayron
Brian inhian
RiC:e
conner smith

District IV

Toman 'Baukema

Anton

BiUBlillock

Eric Gilbert

Jason

Hensley
fiejppen

David Munson

John O'Neill

Brian Sampson

"

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 23 of 56

. . Lt. Col. Watsdtt.
·Major Tom Butier
MaJo'r KeritonHickethier ·
Disii-id c6ttim!inders
Troopers patticipS.dng•µi the Promotional ..
November 26, w12

District V
· 1.'r.i)yMuri
menii Qilinneu ·
District YI • James Hawkins
Robert Hensley David Miils Jerril llen James Sanderson
District vn
Derek Brown Brown
sliawn Fowler
Cherie LoftC>n

District VIII Joel Kriutlieh Daniel Ohl·
Wicktim
ii:eadgtiarters Larry Adorn:i ·

Listed beI.ow .are the eleme:iits for fl)is promotionai process with the weight:

1. ·BehaViQtal Assessment - 25. percent

2. Peer Evaluation- lS percent·

3.. .

Committee Evaluation"-: 25 percent

.

4.

Panel Ini¢rvieW and. Letter Ofltltetest/Resurile.,.. 35 percent

Please see the information .below regarding special information, time frames, .etc. associated with each

phase.

·

The instnictions for this assessment will be contained in the link. You are allowed to utilize a calculator when you take this test.

.. t .'.. Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 24 of 56

· Lt. Col. Watsdn ·

Major T.om :Butier.

MaJ<ir Keriton Hickethier

Distrk:t Cortnna:nders

Troopers

mthe Promotional

Page3
November 26, 2012

i>eer·Evaluatfori

....

wUI be

a

on ·each Ct\Ii4idate

hi the

Dates:

Link to be.received. b.Y peers on No'V.eriiber 27,

Due Date: .Pe:ers of .each candidate must compiete thi.S assessment on or before noon on Tµesday,

Note:

be December .4, 2012.. ·
This link will sent to peers via

· · and will come from June Henderson .

.CommanderS' Committee Evaluatfon

Pates:

.Wediie$ttay:.... tnu.rsday; Oeceinber 5- 6,, 2012

0900 hours on December 5)

Loci:iUon:

.

.

.

.Involved: Note:

All District
As a PJstrict

Ivlayjoour Bwuillllet,nMeeadjctiot llick¢thier;

and the

Lt Col. Watson. Conimanders' Committee

. EvalµatiOn. and narrative for Troopers i.J:rtdet :ctjrrlmand who. mi

in the

promptlona:I pt()qess.
J)ecemiier 4, 2012.

These

fortn.S:nwiuilslfJb:>ee

subm'itt¢d
forwarded

fo

:K.risd

for

to J(fisti by noon your completl()tj;

op

'

Special note: .. A

filial Cijnitjlanqers' Committee Evaluati()ii score must be .above 23. p9hits in

order to cO'ritinue in the process;. C.andidate scores of23 points ot below, will not be eligible to .participate

in the remaining ph!ISeS ofthe Prc>inotional process. '

'' '

''

Panel Interview AND Letter of Interest/Resume

10-:14, 2012

:Loqatioil:

·· .

. .

Note:.

:.The ]ntel"View schedule :Will NOT be published until Friday, December 7, 2012. This

will be sent via e-maUto

for the.ititerview. ·

·

Iptervit'Ws Will be scheduled on an houriy :basis AND the candidates will be given a 15minute preparation tc> review the questions. ' '

'

'

'

Ifyou should. have 1µ1y questions or concerns niglirding this process, please contact Lt. Col. Watson. Good

.luck to you as you continue in the selection process.

MTI/kms

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 25 of 56

. .-

. .

·Human Resourbe S·ervices

Memorandum

DATE:
to:

April 3, ZOi3 .MHP troQpers

FROM:

June

HR Generalist :tQ Mt-IP

SU13JECT: sergeant Promotions

Montana Highway Patrol Division is

recruiting

fodhree vacant

ioq1t!olis tQ:b·e a11.no.u·nced l.ater If you jli;Wticipated hi the

testing

pool at the end of 2012, we will be using the scores from the Letter of Interest, Re.Su.me, and

Profile Xt. The Peer Eva·luations wlU als.0.be unless you notify me fo the changes in your

detachment.

tndividu.als who are currently ellglble but not hi the Decembet 2012 pool .are being a·nowed to

enter the sele.Cticm process. For those :lof;{iYlduals who

subinlt your

for of Interest an'd Resume. via email to 1hencfo:rson@.mtgov·to tli'e attention of UeutenantColonel

of Watson, Clpsing date tlle sl;lbmlsslon

of interest ls mJ<fnlght,

/\pr.II

17,2013.

wUI be the: Profile XT both Peer and Corilmahder's

will plac;e.

wiH 1f1tervi:ew feedb.ack wi.11 be provided to the unsuccessful
Candidates re.Que$tipg it, after the testing 'IS

If ;;i serge13ht position 9pens 4p Jn the next six months, this testing pool ah(J newly eligible

Troopers will be conslijered for that position. lhat proces.s WIU.not allow everyon¢ that tests to

partfclpate in.the ·Interview ·process. ···· ··

·

··

If you have any questipns,·please feel free to contact me 13t the. email above pr. by· phone at

444.2039.

' ''

'

302 North Roberts Street • Helena, Mo.htaiia SQ620 phone 406-444-4229 fax 40G-444-iB87 website wWW;doj.mt.gov

. .

.. ;n. ··,- T Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13···P··a<g•e•A26/\6ofd5T6

.

. ....

\1

'-Shephe-·-rd...;.-.,.....i..K....l...l.,a. ·....•...,•....

'•,.; :;·

From:.
sent: To:

·Henderson, Juhe ·
Morid.ay,•July 22, 2.013 Uil7 AM
siiephetd, !<ila

subject:

FW: Sgt Promotion Process Feedbi;ick.

Frqm: Quinnell,· Glenn

19; 2013 1:oi •pM

To;

June

.

.

sut>Jea·: RE-: Sgt. Promotion Process Feedback

i would Uke an appofotment.

Juoe

. . ...

sent:

Jone 19, 2013 1:00 PM .

.

T(t:

LaY{fence; sr<>Wl'.!1 J.dshua; Ohl,

Quinnell, Glenn; Downs, StE!pJlen; Bl!llock, BUI; Gas.ton, Stephen;

Strauch, Robert;

Snider,

Fow1er1Shawn;

L<>ftotj, Cherte;

$cptt; Heh$ley, .8.9PE!lti

Munson, .David; Oliverson, oave; Moore, Brandon

Jiensley, Joseph{· Sa.lols1 Richard; JeitU; ·Knutsen,

G.r.e.g

.

subJe'.ct: Sgt; Promotl.o.h Process Fe. edbacK

· Good

Watson myseJf are curious as to who would like feedback from the

the schedu.le..

to me via email if you are

In setting u:p

process .SO we can those on
Th.aliks.

June 1fentferson Hi:u:ruui
Htilnan Resource•ser\;ices · Centtal Serrices Dirulon
303 N Rbbe$,Helena Mt, 59602
fhen4erson@mt.gov Wotk: 406-444-70QS/2039
D.BPA.R:·' N. ...
· · ·· ··' ''.t;•f'·vm·

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 27 of 56
EXHIBIT C

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 28 of 56
From: Tooley, Mike mitooley@mt.gov <f
Subject: RE: Highway Patrol Incident Date: April 14, 2011 at 4:56 PM To: Shahid Haque-Hausrath shahid@bordercrossinglaw.com
Shahid,
I have the information back on the contact between our Trooper Moran and Mr. Rios-Diaz.
Trooper Moran's Sergeant reviewed the video of the traffic stop. He also reviewed traffic stops made by Trooper Moran for the past year to see if there was a disproportionate number of stops of minority individuals as compared to the overall population of the area he works in. Finally, the Sergeant checked the computer aided dispatch records to review any other contacts that the MHP might have had with Jose Rios-Diaz.
I will address Katie Gray's complaint in order and answer the issues that I see in it with the information forwarded to me by the district.
1) Mr. Rios-Diaz was pulled over and detained for over an hour. a. He was pulled over and detained for 47 minutes. This is not over an hour but is still longer than most traffic stops. I will explain that later in my reply.
2) Jose was stopped for a violation of 83MPH in a 65MPH zone, but that is debatable. a. The GPS location on the citation indicates that the traffic stop took place 1.6 miles inside the restricted zone. The officer cannot change that information after the citation has been issued.
3) The Trooper thought that the license was fake and that Mr. Rios-Diaz was in the country illegally. a. The license was verified with OMV almost immediately after the stop. It was a valid license and Trooper Moran never stated he thought it was fake on the presence of Mr. Rios-Diaz nor when he was back in the patrol car. However, questions did arise based upon inconsistent answers to other questions about the vehicle registration, the registered owner, and insurance.
The vehicle was recently registered to another individual not residing in Montana but insured by Jose. That is very unusual, and in this instance the traffic stop was made by a trooper trained in criminal interdiction. Those troopers ask a lot more questions when something is not "normal". This of course led to nervousness on the part of Jose which led to more inconsistencies to sort through. This line of questioning was not based upon race, but eventually the totality of the situation led to the question in question, which was "are you here legally?"
Unfortunately, we have recently encountered driver's licenses have been secured in Montana and other states (usually Washington) with unverified documentation by individuals from all over the world.
Knowing this, Trooper Moran called ICE to double check. He had a vehicle with odd documentation, which brought into question other documentation such as the driver's license. He informed Mr. Rios-Diaz of what he was doing and went back several times to get clarifvine: information. This orocess turned a ten minute stoo into a 47 minute

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 29 of 56
stop. I wish it had been faster, but that isn't how this encounter went. We often have trouble getting immediate calls back from ICE in these situations.
At no point in the conversation was Mr. Rios-Diaz threatened with deportation, accused of stealing or buying a driver's license or treated rudely by Trooper Moran. In fact, the video shows Trooper Moran explaining what he was doing at each step in his investigation, for what reason, and even being apologetic for taking so much of his time. At the end, Trooper Moran thanks Mr. Rios-Diaz for his patience and cooperation. Mr. Rios-Diaz' response was "yeah, sure.... No problem".
Mr. Rios-Diaz was stopped for a valid reason, speeding. Trooper Moran became suspicious upon review of the documentation attached to the vehicle and conducted an investigation to ensure there were no other violations of law outside of the initial stop. Once that was completed, he released Mr. Rios-Diaz.
While the complaint of racial profiling is unsubstantiated in my opinion, I do understand why Mr. RiosDiaz is upset. Imagining myself behind the wheel in this situation and being questioned in this way would upset me too. It is intensely personal at a time when life in Montana is not easy for Latinos and Latinas. You and I are both aware of that having seen the attitudes up on the hill the last two sessions. My wife and I watch the news in shock many nights. She is a naturalized former Mexican citizen herself.
Then I put on the trooper hat and see what Trooper Moran was looking at (12 inconsistencies) and understand the need to reconcile some of the major questions before releasing the driver. Troopers not trained the way Moran has been would probably not perform as in depth of an investigation, and apparently that was the case in the other two contacts that MHP has had with Mr. Rios-Diaz in the past year.
If you have any further questions, which you probably will, I will be happy to answer them to the best of my ability. If I don't hear from you, have a great weekend!
Colonel Michael Tooley Chief Administrator Montana Highway Patrol mitooley@mt.gov Service, Integrity, Respect

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 30 of 56
From: Shahid Haque-Hausrath [mailto:shahid@bordercrossinglaw.com] Sent: Wednesday, April 06, 2011 4:45 PM To: Tooley, Mike Subject: Fwd: Highway Patrol Incident Importance: High
Colonel Tooley,
How are you? I hope the legislative session has slowed down since the last time I saw you. I haven't been back to the Capitol for a few weeks because I've been busy with our four month old son.
When we spoke a few years ago about the role of the Montana Highway Patrol in enforcing immigration laws, you asked me to keep you informed of any complaints about potential misconduct by your patrol officers. While I sometimes hear about problems with city or county police, I have almost never heard of any problems with highway patrol officers. Unfortunately, I recently became aware of an incident that I believe should be investigated.
I have forwarded an e-mail that I received from Katie Gray, a community organizer and colleague of mine who lives in Bozeman. As you will see below, her boyfriend was recently stopped and detained by a highway patrol officer under questionable circumstances. It appears that during a routine traffic stop, his immigration status was repeatedly questioned without any reasonable suspicion or legal basis. It also appears that valid identification was rejected, and identity theft was suspected, without any good cause.
As I am sure you understand, these facts make it appear as if race or nationality may have played into the officer's suspicions of wrongdoing. I hope you can look into this matter, try to determine what happened, and make corrections if any mistakes were made.
To help you locate relevant records, I have collected some more information:
Full Name: Jose Alejandro Rios Diaz DOB: 02119/1986
If you there is any other information you need, please do not hesitate to contact me. You may also contact Katie Gray, the author of the message below, at: (406) 580-7298. Thank you very much for your attention to these important issues.
Take care,
Shahid Haque-Hausrath Border Crossing Law Firm, P.C. 312 N. Ewing Street, 2nd Floor Helena, Montana 59601 (406) 594-2004 (888) 594-2179 (Fax) Shahid@bordercrossinglaw.com www.bordercrossinglaw.com
Begin forwarded message:

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 31 of 56
From: Katie Gray <katiemgray@gmail.com> Date: April 4, 2011 2:18:10 PM MDT To: Shahid Haque-Hausrath <shahid@bordercrossinglaw.com> Cc: Katie Gray <katiemgray@gmail.com> Subject: Highway Patrol Incident
Hi Shahid, Hope things are going well! I wanted to let you know about a racial profiling case with the Highway Patrol over in Billings. My boyfriend Jose, who is a citizen, was pulled over today on the interstate outside of Billings at 10:04am and detained for at least an hour by Justin Moran with the Highway Patrol. He was pulled over for speeding, 83 in a 65 but he was outside of Billings city limits so whether it was a 65 limit or 75 is still up for debate. The highway patrol thought he had a false license and was illegal and when Jose gave the cop his license to check the cop came back and said it was a fake (he has a MT license) When the cop asked if Jose was legal Jose said the only people who can ask that are INS to which the cop said that he could ask him and started to get upset. Then after Jose tried again to tell him that it was a real one, the cop went back and checked it again and then after seeing that it was a real license, accused Jose of using someone elses identity to get it. Then the cop checked it again and told Jose to tell the truth or he could take him to jail where he would stay for months and then be deported. Then after Jose tried again to tell him the truth the cop said he didn't believe that Jose had lived in soo many different places and to tell him the truth or he could be sent to Mexico. Justin accused him of buying the license in another state, etc. Jose was on his way to work and with being detained was going to be an hour late so he showed him his SS# at which point Justin finally believed him. Jose did end up with a $40 speeding ticket. Jose said the ticket is not an issue but it's how he was treated that disturbs him. He feels like he can't drive anywhere without getting harrassed! I have had it with him getting pulled over and harrassed due to racial profiling-this is like th 5th time! It's no wonder he wants to return to Mexico! I would like to file a complaint and get the ticket revoked or off his record and for this police officer to get reprimanded. How do I go about doing that? Thanks for any input! Sincerely, Katie Gray

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 32 of 56
EXHIBITD

Van load of suspected illegal aliens detained, released, finally arrested : Uncategorized

10/2/13, 3:28 PM

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 33 of 56

Vanload of suspected illegal aliens detained, released, finally arrested
SEPTEMBER 05, 2000 12:00 AM
Associated Press BILLINGS - Twelve suspected illegal aliens from Mexico were in jail in Billings on Sunday, but it took at least six law officers and three traffic stops to make that happen.
Two Montana Highway Patrol officers weren't sure what to do with the dozen suspected illegal aliens they found in a van after a Sunday morning traffic stop on Interstate 90 west of Columbus.
"There was no way to transport all these people," a Highway Patrol spokeswoman said. The closest Border Patrol agent was in Laurel, "But he was in church so we couldn't get ahold of him."
The next closest agent was in Great Falls.
The agent in Laurel soon contacted the patrol and advised officers to let the van go and ask law enforcement in the Billings area to ready a paddy wagon and catch the van on the interstate, the patrol said.
The 1986 GMC Astro pulled back onto Interstate 90 and headed east, bound for Minneapolis.
The van made it as far as Columbus, where two police officers spotted it at a grocery store. Eight occupants were arrested, but four others escaped to the van and sped away on 1-90. The Border Patrol agent from Laurel helped detain the eight.
Three hours later, one of MHP's newest officers spotted the van on 1-90 north of Hardin. Officer Mark Olson pulled over the van and arrested the four occupants, MHP said.
Eleven of the 12 illegal aliens were in the Yellowstone County Jail on Sunday night. The 12th person, a 16-year-old, is in custody at a juvenile home.

http: I Im issou Iian .com/ uncategorized/vanload-of-suspected-i llegal-al ie ... rticle_92 7aa9ea-a63 0- Sfc3-bfc4-4a79e 772 c6c7.htm l?pri nt=true&cid =print

Page 1of1

Routine stop nets drug bust

10/2/13, 3:19 PM

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 34 of 56

BILLINGS GAZETTE

Routine stop nets drug bust
MAY 03, 2002 11 :00 PM • BECKY SHAY OF THE GAZETIE STAFF
Four illegal aliens were taken into custody near Forsyth Thursday. About 20 pounds of ingredients for making methamphetamine along with nearly $3,000 was seized from their belongings.
Montana Highway Patrol and Rosebud County officers were "following their instincts" when they started an investigation that yielded the bust, said Rosebud County Sheriff Tim Fulton.
The men, who were not identified, are all in their 20s and of Latin American descent, Fulton said. They are being held without bond on immigration charges in Rosebud County Jail. Drug charges are pending, Fulton said.
Officers seized about 20 pounds of ephedrine, a stimulant found in decongestants and weightloss products, that can be "cooked down" and converted into methamphetamine. It is illegal in Montana to possess drug precursors, including ephedrine. Fulton said depending on who cooks the precursor, the ephedrine could have been made into 15 to 30 pounds of methamphetamine giving it a "ballpark" value of $400,000 on the street.
Montana Highway Patrol Officer Jim Hunter saw a Nissan passenger car stopped with its hood up along Interstate 94 near Forsyth at about 10:10 a.m. Thursday
"He was going to be a good Samaritan and see if he could bring some help to some people," Fulton said.
The two men were nervous and said they had help coming. Hunter was on another assignment and left, but didn't feel comfortable about the men and notified Officer Tim Lytle.
Lytle was in Forsyth and had spotted two men in a maroon Jeep at the Town Pump who seemed suspicious. When Lytle received the call from Hunter he was torn between which suspicious vehicle to look into, Fulton said. Lytle got a chance to "get two birds with one stone," when the Jeep headed east on Interstate 94, the direction of the broken down Nissan, Fulton said.
Lytle called Rosebud County for assistance. At that time, Fulton was in a meeting but listening to the radio transmissions and he decided to interrupt the meeting and follow Sheriff's Capt. Gerald McComb out to the Interstate.
As Lytle continued to follow the Jeep, the driver cut across the median, which is illegal, and pulled up behind the Nissan. Both vehicles had Minnesota license plates. Lytle turned on his traffic lights and stopped the driver of the Jeep for the traffic violation. Lytle learned through his dispatch center that the two men with the Nissan were illegal aliens and he detained them in

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his car.

"As luck would have it, the Border Patrol was picking someone up in Colstrip, which is also in (Rosebud) County," Fulton said. "They heard all this on the radio and headed that way."

By the time Fulton and McComb arrived, Lytle was talking to the two men in the Jeep. Lytle asked the driver for permission to search the vehicle, and after the man asked a few questions and looked at the Spanish translation on the permission form, he signed the document and the
officers started the search.

Meanwhile, the Border Patrol notified Lytle that the two men in the Jeep were also illegal aliens. Fulton said part of the investigation will look into why the men had Social Security cards and driver's licenses, which were probably forged.

The three officers began searching the Jeep. Fulton found what appeared to be drugs, but was later determined to be ephedrine.

The Montana Crime Lab will analyze the powdery substance to confirm the field test for ephedrine.

The cars were towed to the Rosebud County impound lot in Forsyth and agents from the Eastern Montana Drug Task Force were called. A Rosebud County District Court judge allowed search warrants for the vehicles.

When the men were taken to jail, they were carrying almost $3,000, most of which the driver of the Jeep was holding. Officers seized a total of eight cell phones, seven of which were turned on, Fulton said. Five of the phones were in the center console of the Jeep.

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Deported aliens charged with illegal re-entry
MAY 07, 2002 11 :00 PM • CLAIR JOHNSON OF THE GAZETTE STAFF
Two citizens of Mexico who previously had been deported face charges of illegally re-entering the United States.
Law enforcement officers arrested Alberto Hernandez-Sanchez, 26, and Jose Maria SosaSanchez, 34, May 2 on Interstate 94 near Forsyth after an investigation by the Montana Highway Patrol and Rosebud County sheriff's officers turned up about 20 pounds of ingredients for making methamphetamine, almost $3,000 in cash and eight cellular telephones. The defendants and two other illegal aliens were occupants of two vehicles.
During appearances in U.S. District Court in Billings Tuesday, Hernandez-Sanchez pleaded not guilty to a criminal complaint, while Sosa-Sanchez did not enter a plea. The case filed Tuesday did not address any of the drug offenses.
U.S. Magistrate Richard Anderson set a consolidated preliminary hearing for both defendants for Wednesday.
According to the complaint, Hernandez-Sanchez, who gave his address as Lexington, Ore., had been deported in March 1998, and had not obtained permission to re-enter the country. Sosa-Sanchez, who gave an address of Boardman, Ore., had been deported in May 1999, and also had not received permission to return.
David Walker, a special agent with the U.S. Border Patrol, said in affidavits that on May 2, officers with the Rosebud County Sheriff's Department and MHP responded to the scene of two vehicles on 1-94 near Forsyth. MHP requested help from the Border Patrol.
A highway patrol officer initially stopped to check on one of the vehicles, a Nissan, because it was stopped along the interstate and had its hood up, Rosebud County Sheriff Tim Fulton said earlier. The two male occupants were nervous and told the officer they had help coming.
Meanwhile, another highway patrol officer spotted two men in a Jeep in Forsyth who seemed suspicious. The officer followed the Jeep, which was traveling in the direction of the broken down vehicle. The driver of the Jeep cut across the median, which is illegal, and pulled up behind the Nissan. Both vehicles had Minnesota license plates.
By the time Border Patrol agents arrived, Highway Patrol officers had received consent to search the vehicles. They found 23 pounds of a substance that tested positive for amphetamine, Walker said.
Fulton said that the four were carrying almost $3,000 and that officers seized eight cell phones, seven of which were turned on.
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After being advised of their rights, the defendants said they were U.S. citizens but later admitted to being illegal aliens from Mexico, Walker said in his affidavit. Fingerprint examinations found that the INS has encountered both men previously and that they each have criminal and immigration records.

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Local Digest

FEBRUARY 11 , 2003 11 :00 PM
Gazette Staff
News briefs
Stepped-up patrols stop 121 motorists Montana Highway Patrol officers stopped 121 drivers in an intensified weekend patrol south of Laurel.

Last Friday through Monday, five officers patrolled highways 310 and 212. The extra patrols are part of an effort to reduce the number of wrecks on those highways. Among the tickets officers wrote were 28 for speeding, 12 for no registration, nine for no seat belt, five for no insurance and three for no driver's license. Officers issued 135 warnings, including 39 for moving violations, 35 for no registration and 33 for mechanical problems.

The officers arrested one habitual traffic offender and one illegal alien. They evaluated one person for driving under the influence. Although officers didn't write any tickets for DUI, one person was charged with having drugs. There was one crash during the patrols. Officers said the weekend conditions included snow, ice, wind and cold temperatures.

Roundup super gets state post Superintendent of Public Instruction Linda McCulloch has named Jay Erdie, superintendent of Roundup Public Schools, the new Montana deputy superintendent.
McCulloch made the announcement Tuesday.
In addition to his work as superintendent, Erdie is president of the School Administrators of Montana. He began teaching in Hobson in 1963, and after completing a master's degree in education, Erdie served as the Wolf Point High School guidance counselor through June of 1971.
In fall 1971, Erdie was hired as junior-senior high school principal for the Roundup Public Schools. After completing his doctorate in school administration and a minor in curriculum at Montana State University, Erdie became the Roundup superintendent in 1987.

Erdie succeeds acting Office of Public Instruction Deputy Superintendent Spence Sartorius and Deputy Superintendent Bill Cooper, who retired in January. Erdie will complete his duties with the Roundup Public Schools and begin full time work at OPI in July.
Police pursue robbery leads Billings police on Tuesday spoke with suspects in a West End robbery.
Police Lt. Joe Bryce said police detectives have also recovered some items taken during the

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robbery at Golden Meadows Mobile Home Park, 3200 King Ave. The victim said three men, who claimed to be selling magazines, forced their way into his mobile home and robbed him at gunpoint Monday afternoon.

"The suspects may have claimed to be selling magazines, however it has been determined that they were not affiliated with any of the groups who do legitimately conduct similar activities in Billings," Bryce said. "The Police Department has received a significant number of calls from citizens who have had salespersons at their homes. We certainly thank everyone for their attention, concern and willingness to call in."

Detectives have talked to suspects who know they may be further investigated, Bryce said. Arrests are expected, he said.

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U.S. Department of Justice Drug Enforcement Administration
www .dea.gov
Microgram

Bulletin

Published by: The Drug Enforcement Administration Office of Forensic Sciences Washington, DC 20537

The U.S. Attorney General has determined that the publication of this periodical is necessary in the transaction of the public business required by the Department of Justice. Information, instructions, and disclaimers are published in the January issues.

VOL. XXXVII. NO. 9

SEPTEMBER 2004

- INTELLIGENCE ALERT -

COCAINE BRICKS SEALED IN A POLYMERIC COATING IN A CAR BATTERY IN BROWNSVILLE, TEXAS

The DEA South Central Laboratory (Dallas, Texas) recently received a submission of six bricks containing a compressed white powder, some with mushy, discolored regions, suspected cocaine. The exhibits had been secreted in the battery of a 2004 Nissan Maxima, and were seized by the U.S. Customs at the Brownsville, Texas Port of Entry. Each brick was about half the size of typical kilogram brick of cocaine, and was imperfectly sealed in a polymeric coating (see Photo 1). The coating was very hard and had to be removed using a hammer and chisel; when broken, it

Photo 1

MICROGRAM BULLETIN, VOL. XXXVII, NO. 9, SEPTEMBER 2004

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Hmong are a tribe from mountainous regions in Laos.) The opium poppies, growing between rows of vegetables, were 24 to 30 inches high with bulbs ranging from 1 to 2 inches in diameter. Many of the bulbs had been scored with three to four cuts per bulb to let the opium seep out for subsequent collection. None of the defendants had prior drug arrests; however, they did admit that they knew that growing opium poppies was illegal. They stated that they were growing the opium poppies for medicinal purposes.
NDIC Comment: Opium poppies typically are not grown in the United States. Most opium poppies are cultivated in four foreign source areas--Mexico, South America, Southeast Asia and Southwest Asia. The last significant opium poppy seizure in the United States occurred in June 2003 in the Sierra National Forest in California. This seizure is the first of its kind encountered in the Pella-Marion County area, according to the Marion County Sheriffs Office.
* * * * *
- INTELLIGENCE ALERT -
COCAINE IN AN AUTOMOBILE BATTERY IN HILL COUNTY, MONTANA
[From the NDIC Narcotics Digest Weekly 2004;3(32):3 Unclassified, Reprinted with Permission;
Some Details Withheld in Accordance with Microgram Policy.]
On July 17, 2004, a Montana Highway Patrol (MHP) trooper arrested a 46-year-old male and seized 7.2 pounds of powdered cocaine from a vehicle traveling east on U.S. Highway 2 in Hill County. The trooper initially had stopped the vehicle for speeding. The driver produced a California driver's license and a vehicle registration showing that he owned the vehicle; however, since the driver spoke little English, the trooper requested the assistance of a U.S. Border Patrol (USBP) agent to serve as an interpreter. Through the USBP interpreter, the driver advised that he was traveling from California to Chicago. The driver posted bond at the scene for speeding and was released. However, [due to the use of an unusual procedure to start the vehicle,] the MHP trooper and USBP agents became suspicious and requested and received consent to search the vehicle. The search revealed a false battery with vent caps that were [modified]. A USBP agent [investigated] and recovered a white powder that field-tested positive for cocaine. The Tri-County Drug Task Force was notified and responded to the scene. The vehicle was impounded, and a continued search revealed that the battery case contained 7.2 pounds of cocaine and a small motorcycle battery that allowed the electrical system to function but was not powerful enough to start the vehicle. The suspect was charged with possession of a controlled substance.
NDIC Comment: Law enforcement officials in the Northwest and Midwest increasingly report the use of modified vehicle batteries to conceal illicit drugs. In November 2003 Ada County (ID) Metro Narcotics Unit authorities seized 4 pounds of methamphetamine, 0.25 pound of cocaine, and $20,000 concealed inside a modified 12-volt automobile battery. In December 2003 Utah Highway Patrol troopers in Beaver County seized 10.5 pounds of methamphetamine, 3 pounds of which were concealed in a modified 12-volt automobile battery.

MICROGRAM BULLETIN, VOL. XXXVII, NO. 9, SEPTEMBER 2004

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Vehicle registration sting catches illegal immigrants at refinery
FEBRUARY 11 , 2008 11 :00 PM • GREG TUTTLE OF THE GAZETTE STAFF
An effort to crack down on refinery workers in Laurel accused of ignoring state vehicle registration requirements also netted several allegedly illegal immigrants.
Nine people were arrested for immigration violations Monday evening as they were leaving work at the CHS refinery, a spokesman for the federal Immigration and Customs Enforcement agency said. The nine workers remained in custody at the Jefferson County jail and the Yellowstone County jail on Tuesday and could eventually face deportation.
At least nine citations also were issued to workers who had not registered their vehicles in Montana, said a Montana Highway Patrol officer involved in the unusual sting operation.
State law requires anyone working in Montana to register his or her vehicle, said Patrol Sgt. Scott Ayers. The 11gainful registration 11 requirement has no grace period and applies to anyone who works in the state, he said.
The sting operation was conducted between 5 and 8 p.m. Monday evening and included six Highway Patrol troopers and several Yellowstone County sheriff's deputies stationed at the exit of an employee parking lot. A federal agent was also at the scene to take custody of immigration detainees.
Messages left Tuesday at the Sheriff's Office were not returned.
Ayers said the operation was conducted after numerous complaints were made to local law enforcement about the large number of out-of-state licenses on vehicles coming and going from the CHS refinery. The refinery has been involved in several multimillion-dollar upgrades in recent years.
Ayers said the refinery management was contacted about two weeks ago and was asked to remind workers of the vehicle registration laws. The sting operation was then conducted.
"We asked for compliance several times before we went out there," he said.
MHP officers stopped 21 vehicles exiting the parking lot with out-of-state license plates. Nine gainful-registration citations were issued and 12 warnings were issued for the same offense, Ayers said. One citation was issued for a driver with no insurance, and one warning was issued for a light violation, he said.
County deputies also issued a number of citations and warnings.

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Workers who could not provide proper immigration documents were turned over to the federal agent.

Pat Kimmett, manager of the CHS refinery, said the company informed workers about the vehicle registration requirements and issued a subsequent warning after being contacted recently by law enforcement. He said the workers, which have ranged in number from several hundred to 2,400, are employed by dozens of contractors who are involved in various stages of a construction project at the site.

"We do not check all the paperwork, 11 Kimmett said. "It's the responsibility of the contractor."

The building contractors are required by contract to adhere to all government rules and regulations, Kimmett said.

Contractors whose employees were arrested Monday on immigration violations have since reported that the workers had filed proper documents before they were hired, Kimmett said. CHS has also asked all of the contractors to check the employment records of their employees, he said.

Ayers said that during the operation, several refinery employees told officers that numerous workers appeared to be fleeing the refinery grounds by scaling a fence on the south side of the property and running into fields. Ayers drove through the area in the dark but could not locate anyone, he said.

"I have to surmise they were undocumented workers, 11 he said.

It was unclear Tuesday what fate awaits those refinery workers taken into custody and held in the county jails.

Jessica Fehr, a spokeswoman for the U.S. Attorney's Office in Billings, said she could neither confirm nor deny that an investigation was being conducted as a result of the law enforcement activity at the refinery.

Carl Rusnak, a spokesman in Dallas, for Immigration and Customs Enforcement, an agency within Homeland Security, confirmed Tuesday that nine illegal immigrants were arrested at the refinery. Six of the those arrested are being held in the Jefferson County jail and three are held at the Yellowstone County jail. The federal agency contracts with numerous local jail facilities across the country to hold immigration detainees, he said.

If any of those arrested at CHS are from Mexico and have no criminal record, they may be given the opportunity to voluntarily return to that country, Rusnak said. Deportation steps would begin for those who come from a country other than Mexico or who have a criminal record, he said. Anyone slated for deportation can appear before a federal judge to make a case for staying in the country.

It was unclear Tuesday how often such immigration cases involving numerous arrests at one company happen in Montana, but Rusnak said the case highlights the need for enforcement across the country.

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"The problem of illegal immigration is a problem in all 50 states," he said.

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Car license crackdown yields aliens
FEBRUARY 12, 2008 11 :00 PM • GREG TUTTLE OF THE GAZETTE STAFF
An effort to crack down on refinery workers in Laurel accused of ignoring state vehicle registration requirements also netted several allegedly illegal immigrants.
Nine people were arrested for immigration violations Monday evening as they were leaving work at the CHS refinery, a spokesman for the federal Immigration and Customs Enforcement agency said. The nine workers remained in custody at the Jefferson County jail and the Yellowstone County jail on Tuesday and could eventually face deportation.
At least nine citations also were issued to workers who had not registered their vehicles in Montana, said a Montana Highway Patrol officer involved in the unusual sting operation.
'Gainful registration• requirement
State law requires anyone working in Montana to register his or her vehicle, said Patrol Sgt. Scott Ayers. The "gainful registration" requirement has no grace period and applies to anyone who works in the state, he said.
The sting operation was conducted between 5 and 8 p.m. Monday evening and included six Highway Patrol troopers and several Yellowstone County sheriff's deputies stationed at the exit of an employee parking lot. A federal agent was also at the scene to take custody of immigration detainees.
Messages left Tuesday at the Sheriff's Office were not returned.
Ayers said the operation was conducted after numerous complaints were made to local law enforcement about the large number of out-of-state licenses on vehicles coming and going from the CHS refinery. The refinery has been involved in several multimillion-dollar upgrades in recent years.
Ayers said the refinery management was contacted about two weeks ago and was asked to remind workers of the vehicle registration laws. The sting operation was then conducted.
"We asked for compliance several times before we went out there, 11 he said.
MHP officers stopped 21 vehicles exiting the parking lot with out-of-state license plates. Nine gainful-registration citations were issued and 12 warnings were issued for the same offense, Ayers said. One citation was issued for a driver with no insurance, and one warning was issued for a light violation, he said.
County deputies also issued a number of citations and warnings.

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Workers who could not provide proper immigration documents were turned over to the federal agent.

Warning issued
Pat Kimmett, manager of the CHS refinery, said the company informed workers about the vehicle registration requirements and issued a subsequent warning after being contacted recently by law enforcement. He said the workers, which have ranged in number from several hundred to 2,400, are employed by dozens of contractors who are involved in various stages of a construction project at the site.

"We do not check all the paperwork," Kimmett said. "It's the responsibility of the contractor."

The building contractors are required by contract to adhere to all government rules and regulations, Kimmett said.

Contractors whose employees were arrested Monday on immigration violations have since reported that the workers had filed proper documents before they were hired, Kimmett said. CHS has also asked all of the contractors to check the employment records of their employees, he said.

Ayers said that during the operation, several refinery employees told officers that numerous workers appeared to be fleeing the refinery grounds by scaling a fence on the south side of the property and running into fields. Ayers drove through the area in the dark but could not locate anyone, he said.

"I have to surmise they were undocumented workers," he said.
It was unclear Tuesday what fate awaits those refinery workers taken into custody and held in the county jails.

Jessica Fehr, a spokeswoman for the U.S. Attorney's Office in Billings, said she could neither confirm nor deny that an investigation was being conducted as a result of the law enforcement activity at the refinery.

Carl Rusnok, a spokesman in Dallas, for Immigration and Customs Enforcement, an agency within Homeland Security, confirmed Tuesday that nine illegal immigrants were arrested at the refinery. Six of the those arrested are being held in the Jefferson County jail and three are held at the Yellowstone County jail. The federal agency contracts with numerous local jail facilities across the country to hold immigration detainees, he said.

If any of those arrested at CHS are from Mexico and have no criminal record, they may be given the opportunity to voluntarily return to that country, Rusnak said. Deportation steps would begin for those who come from a country other than Mexico or who have a criminal record, he said. Anyone slated for deportation can appear before a federal judge to make a case for staying in the country.
It was unclear Tuesday how often such immigration cases involving numerous arrests at one company happen in Montana, but Rusnak said the case highlights the need for enforcement across the country.

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"The problem of illegal immigration is a problem in all 50 states," he said.

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Refinery sting continues; immigrants head to detention
MHP officers have cited 12 drivers for not having Montana license plates
FEBRUARY 13, 2008 11 :00 PM • JAN FALSTAD AND ZACH BENOIT OF THE GAZETTE STAFF
LAUREL - A sting operation to crack down on CHS refinery workers for vehicle registration requirements continued Wednesday, and nine illegal immigrants arrested at the refinery Monday were on their way to a detention facility in Arizona.
State law requires anyone working in Montana to register his or her vehicle.
On Monday, members of the Montana Highway Patrol and Yellowstone County Sheriff's Office stationed at the exit to an employee parking lot began pulling over employees with out-of-state license plates as they left.
Through Tuesday, MHP officers had pulled over at least 31 drivers, issued 12 gainfulregistration citations and given out 19 warnings. County deputies also issued citations and warnings beginning on Monday.
Patrol Sgt. Scott Ayers said numbers for Wednesday's operation - which included four MHP officers and several county deputies - won't be available until later today. There was a significant reduction in violations, he said.
"Progressively, we're getting compliance," Ayers said. "Monday, probably 50 percent of the vehicles were from out of state. The second day, it was about 20 percent, and today it was only about 5 percent."
He said the decrease is likely because of "more (workers) who just went out and got their plates."
Trooper Seth Cavalea said that whether a driver is issued a citation or a warning is up to the officer's discretion. He said that if the driver was cited in the past year or had recently moved to Montana, it could be the difference between a citation and a warning.
The operation began after law enforcement officials received a number of complaints about out-of-state license plates at the refinery.

Illegal immigrants
Monday's sting also resulted in the arrest of nine illegal immigrants. During the operation, refinery employees informed officers of several people attempting to escape by scaling a refinery fence and running into the adjacent fields.
Ayers said that, to his knowledge, no illegal immigrants were arrested in the sting Tuesday and Wednesday.

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Tim Counts, Minneapolis spokesman for the federal Immigration and Customs Enforcement agency, said the nine illegal immigrants arrested Monday were driven from Helena to Twin Falls, Idaho, on Wednesday. Today they will be flown on a Justice Prisoner and Alien Transport System jet to a processing facility in Arizona. They will end up at a detention facility in Eloy, Ariz.
"We expect most, if not all, of them will be deported," he said. "We've determined most of them were illegal aliens."
If the workers voluntarily sign off on deportation, they could be back in their home country in a couple of days, Counts said. If they fight deportation, the legal process can drag out for months or years.
With more than 400 federal statutes governing immigration and customs laws, Counts said his department has to set priorities on enforcement, with the top being national security and the second community safety.
When asked about the priority of suspected illegal aliens working at a refinery on the outskirts of a city like Laurel, Counts said critical infrastructure facilities such as airports and water treatment plants are high on the list.
"And it is a good argument that a refinery would be higher on the list than a fast-food outlet," he said.
However, ICE takes more than one factor into account when ranking enforcement actions, including quality of the information received, he said.
Out-of-state workers
Bob Papin, business manager for the Plumbers & Pipefitters Local 30, said that when Turner Industries Group out of Baton Rouge, La., was hired to construct the CHS refinery coker last spring, skilled labor in the Billings area was scarce.
The locals were busy doing the spring turnaround or annual maintenance work at the same refinery in Laurel, Papin said, so most of the workers Turner brought in for the coker project were from out of state. At the height of the work, as many as 2,400 people were working at CHS, he said.
Workers reporting to him have been complaining for almost a year, he said, that the parking lot was full of vehicles with out-of-state plates and asking why state and local laws were not being enforced.
That some workers may have been jumping the refinery fence Monday evening and escaping the sting operation concerns him.
"You're working in a facility that is highly dangerous, and if you have people in there who are not skilled or trained to be in there, you're creating some situation that could be detrimental to the health and lives of everybody," Papin said.

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While there may have been a labor shortage of local skilled workers last spring, there isn't now,

said Rion Miles, business agent for the Operating Engineers Local 400. Miles also serves as president of the Southeastern Montana Building and Construction Trades Council, which represents more than a dozen unions.

"I can tell you right now all the union trades have people sitting on their out-of-work lists now," he said.

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USDOJ: US Attorney's Office - District of Montana

10/2/13, 3:31 PM

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 51 of 56

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Isidro Hernandez-Casas Pleads Guilty In U.S. Federal Cour

FOR IMMEDIATE RELEASE

Tuesday, January 06, 2009

Bill Mercer, United States Attorney for the District of Montana, announced today that during a federal court session in Missoula on January 6, 2009, before U.S. Magistrate Judge Jeremiah C. Lynch, ISIDRO HERNANDEZ-CASAS, a 55-year-old citizen of Mexico, pled guilty to illegal re-entry of a previously deported alien. Sentencing is set for March 20, 2009. He is currently detained.
In an Offer of Proof filed by the United States, the government stated it would have proved at trial the following:
On October 4, 2008, a Montana Highway Patrol officer stopped near Alberton to assist some individuals fixing a flat tire on a minivan. HERNANDEZ-CASAS was the driver and there were three passengers. Because the van was not properly registered, the officer cited HERNANDEZ-CASAS and impounded the vehicle. He told HERNANDEZ-CASAS that the van would be released if proof of ownership was provided to Mineral County by October 6, 2008.
The officer suspected that the four occupants of the van might be illegal aliens, so after his encounter with them he contacted the U.S. Immigration and Customs Enforcement (ICE). An ICE agent determined that all four occupants of the van were likely illegal aliens and that HERNANDEZ-CASAS had been previously deported from the United States.
On October 6, 2008, HERNANDEZ-CASAS was arrested when he went to the Mineral County Courthouse to provide proof of ownership for the van. His fingerprints were then analyzed which revealed that he had previously been deported from the United States on July 17, 1999, through McAllen, Texas. His removal followed a conviction in 1995 for a felony in Gwinnett County, Georgia, for purchasing and/or possessing cocaine. There is no evidence in HERNANDEZ-CASAS' immigration file that he had applied for or received permission to reenter the United States with either the Secretary of the Department of Homeland Security or the Attorney General.
ISIDRO HERNANDEZ-CASAS faces possible penalties of 20 years in prison, a $250,000 fine and 3 years supervised release.
Assistant U.S. Attorney Timothy J. Racicot prosecuted the case for the United States.
The investigation was a cooperative effort between the U.S. Immigration and Customs Enforcement and the Montana Highway Patrol.
A copy of the Offer of Proof can be obtained by contacting Sally Frank at (406) 247-4638.

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USDOJ: US Attorney's Office - District of Montana

10/2/13, 3:38 PM

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 52 of 56

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Lucio Madrigal-Placido Sentenced In U.S. District Cour

FOR IMMEDIATE RELEASE

Monday,January12,2009

Bill Mercer, United States Attorney for the District of Montana, announced today that during a federal court session in Missoula, on January 9, 2009, before U.S. District Judge Donald W. Molloy, LUCIO MADRIGAL-PLACIDO, a 53-year-old citizen of Mexico, appeared for sentencing. MADRIGAL-PLACIDO was sentenced to a term of:
• Prison: 225 days (time served)
• Special Assessment: $100
MADRIGAL-PLACIDO was sentenced in connection with his guilty plea to illegal re-entry of a previously deported alien.
In an Offer of Proof filed by the United States, the government stated it would have proved at trial the following:
On May 30, 2008, a Montana Highway Patrol officer and an agent with the U.S. Immigration and Customs Enforcement stopped a van in which MADRIGAL-PLACIDO was a passenger. The van contained five Hispanic individuals, four of whom are illegal aliens.
MADRIGAL-PLACIDO'S immigration records reflected that he was deported from the United States on May 29, 2004, at the Port of San Ysidro, California. There is no evidence in MADRIGAL-PLACIDO'S immigration file that he applied for permission to reenter the United States with either the Secretary of the Department of Homeland Security or the Attorney General.
Because there is no parole in the federal system, the "truth in sentencing" guidelines mandate that MADRIGAL-PLACIDO will likely serve all of the time imposed by the court. In the federal system, MADRIGAL-PLACIDO does have the opportunity to earn a sentence reduction for "good behavior." However, this reduction will not exceed 15% of the overall sentence.
Assistant U.S. Attorney Timothy J. Racicot prosecuted the case for the United States.
The investigation was a cooperative effort between the Montana Highway Patrol and the U.S. Immigration and Customs Enforcement.

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20 aliens charged in area

10/2/13, 3:01 PM

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 53 of 56

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20 aliens charged in area
Tim Leeds Havre Daily News tleeds@havredailynews.com
Put)lished: l-nc1ay, J\pril 2nd, 2010

U.S. Border Patrol agents charged 20 illegal aliens in three arrests in northern Montana in the last two weeks, including a couple accused of stealing more than $80,000 worth of camera equipment and transporting it on Amtrak's Empire Builder. The aliens detained in Havre March 15 were two Polish citizens, found during an immigration check of Amtrak passengers in Havre. Camera equipment found in their possession was discovered to be reported stolen in Seattle. The equipment and the two suspects were taken to the Hill County Detention Center pending ext radi t ion to Washington. Two Iraqi citizens were arrested Monday after they illegally drove around the Sweetgrass Port of Entry north of Shelby to enter Montana. An investigation revealed no connection to terrorism organizations, and the couple, a husband and wife, are under pending proceedings to remove them from the United States. Another investigation at Froid, north of Culbertson near the North Dakota border, resulted in the arrest of 16 Illegal aliens. The arrests began when a Montana Highway Patrol officer stopped a vehicle for speeding Monday. The officer called for assistance from the Border Patrol because none of the five people in the vehicle spoke English. The Border Patrol agents determined that the subjects were illegally in the United States and took them into custody. The agents drove the five Subjects to their residence to gather their belongings and encountered 11 additional subjects who were also illegal aliens. The aliens, who were taken to the Plentywood Border Patrol station for processing, were nine Hondurans, two El Salvadorans and five Mexicans. Havre Sector Deputy Chief Patrol Agent Christopher Richards said in a press release that the arrests are part of the agency's mission to prevent terrorism, enforce immigration laws and prevent illegal crossborder traffic.

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Illegal aliens arrested after crash on 1-90 I KPAX.com I Missoula, Montana

10/2/13, 3:03 PM

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 54 of 56

MINERAL COUNTY COVERAGE
Illegal aliens arrested after crash on 1-90
Posted: Mar 9, 2011 143 PM by Irina Cates (KPAX News) Updated.· Mar 9. 2011 1.51 PM

ALBERTON - Five illegal aliens were taken to jail on Wednesday morning after they crashed on Interstate 90 near Alberton.

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The wreck happened just after 5 a.m. at mile marker 79 when the driver'l '1>11lu. I
lost control and rolled the car over.

The Montana Highway Patrol reports that one passenger went to the hospital with minor injuries and was later released.
Troopers say at least four of the people admitted to being in the U.S. illegally between four and 10 years. They were on their way to New Jersey for work when the crash happened.

5.0 (1 vote)

Immigration and Customs Enforcement (ICE) asked for them to be taken into custody.

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USDOJ: US Attorney's Office - District of Montana

10/2/13, 3:33 PM

Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 55 of 56

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Fernando Gallegos-Barreto Sentenced In U.S. District Cour

FOR IMMEDIATE RELEASE

Thursday, October 20, 2011

The United States Attorney's Office announced that during a federal court session in Missoula, on October 19, 2011, before U.S. District Judge Donald W. Molloy, FERNANDO GALLEGOS-BARRETO, a 28-year-old citizen of Mexico, appeared for sentencing. GALLEGOS-BARRETO was sentenced to a term of:
• Prison: 45 months
• Special Assessment: $100
• Supervised Release: 2 years
GALLEGOS-BARRETO was sentenced in connection with his guilty plea to illegal re-entry.
In an Offer of Proof filed by Assistant U.S. Attorney Timothy J. Racicot, the government stated it would have proved at trial the following:
On April 11, 2011, a Montana Highway Patrol officer stopped a vehicle on Interstate 90 after observing that the right rear tire of the vehicle was bouncing. It appeared to the trooper that the tire was out of balance or about to come off. GALLEGOS-BARRETO was the driver and the only occupant of the vehicle. GALLEGOS-BARRETO presented an "International Driver's License" bearing the name Carlos Almanzia Arciga. He informed the trooper that he did not have a Mexican driver's license but that he did have a Mexican Consulate Card. He did not have a passport. A criminal history check performed by the Montana Highway Patrol Dispatch showed the driver's true name to be FERNANDO GALLEGOS-BARRETO.
The trooper contacted an agent from Homeland Security Investigations who conducted immigration queries through electronic databases that revealed a possible match for GALLEGOS-BARRETO as having been previously deported. As a result, GALLEGOS-BARRETO was transported to Missoula County Detention Center and placed on an immigration detainer.
During an interview on April 12, 2011, GALLEGOS-BARRETO admitted that he was a citizen and national of Mexico and that he was present in the United States without immigration documents. He also admitted that he last entered the United States on July 1, 2002, near San Ysidro, California. He admitted entering illegally on foot without being inspected or admitted by an immigration officer and without obtaining permission from the United States Attorney General, his designee, or his successor, the Secretary of the Department of Homeland Security. He also admitted he had been twice removed from the United States to Mexico.
A fingerprint analysis of GALLEGOS-BARRETO revealed that he had been deported from the United States on August 14, 1998, following an arrest in Seattle for possession of cocaine and being an alien in possession of a firearm. He was also deported on May 23, 2003, following a 2001 conviction for possession of cocaine and methamphetamine with intent to distribute.
There was no evidence in GALLEGOS-BARRETO's immigration file that he had applied for or received

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Case 2:13-cv-00077-DLC-CSO Document 1-2 Filed 10/07/13 Page 56 of 56

permission to enter or reside in the United States from either the Secretary of the Department of Homeland Security or the Attorney General.

Because there is no parole in the federal system, the "truth in sentencing" guidelines mandate that GALLEGOS-BARRETO will likely serve all of the time imposed by the court. In the federal system, GALLEGOS-BARRETO does have the opportunity to earn a sentence reduction for "good behavior." However, this reduction will not exceed 15% of the overall sentence.

The investigation was a cooperative effort between the U.S. Customs and Border Protection, U.S. Homeland Security Investigations, and the Montana Highway Patrol.

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Page 2 of 2

 
 Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

JOSE RIOS-DIAZ, ELIGIO DURAN-SANCHEZ, DELVIO MEJIA-OCHOA, and EDUARDO BARRAGAN-NARANJO, on behalf of themselves and all others similarly situated, and MONTANA IMMIGRANT JUSTICE ALLIANCE,
Plaintiffs,
vs.
COLONEL TOM BUTLER, in his official capacity as Chief Administrator of the MONTANA HIGHWAY PATROL, ATTORNEY GENRAL TIM FOX, in his official capacity as head of the MONTANA DEPARTMENT OF JUSTICE,
Defendants.

CV-13-77-BU-DLC-CSO
FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

This case involves allegations of racial profiling by Montana Highway Patrol (“MHP”) officers. It is alleged that MHP officers, using race and ethnicity as bases for suspecting illegal presence in the United States, unlawfully seize and detain Latino persons for prolonged periods while the officers contact federal immigration agencies.

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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 2 of 26
Plaintiffs are the Montana Immigrant Justice Alliance and four Latino individuals – Jose Rios-Diaz, Eligio Duran-Sanchez, Delfio Mejia-Ochoa, and Eduardo Barragan-Naranjo – who appear on behalf of both themselves and all others similarly situated (collectively “Plaintiffs”). They name two defendants, each in their official capacity: Colonel Tom Butler, MHP’s Chief Administrator, and Tim Fox, Montana’s Attorney General and head of its Justice Department (collectively “Defendants”).
Plaintiffs assert the following five counts: (1) under 42 U.S.C. § 1983, violation of Fourteenth Amendment equal protection rights (Count I), Cmplt. (ECF 1) at 42-441; (2) also under 42 U.S.C. § 1983, violation of Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures (Count II), id. at 44-45; (3) violation of Article II, §§ 4 and 11, of Montana’s Constitution (Counts III and IV), id. at 45-46; and (4) race discrimination in federally funded programs in violation of Title VI, 42 U.S.C. § 2000d (Count V), id. at 4647. Plaintiffs seek declaratory and injunctive relief, as well as
1“ECF” refers to the document as numbered in the Court’s Electronic Case Files. See The Bluebook, A Uniform System of Citation, § 10.8.3. Citations to page numbers are to those assigned by the ECF system.
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 3 of 26
attorneys’ fees and costs. Id. at 48-49. They do not seek any compensatory damages. Id.; see also Resp. in Opposition to Defts’ Mtn. to Dismiss (ECF 17) at 2.
Pending is Defendants’ motion to dismiss some of Plaintiffs’ claims under Rule 12(b)(6).2 Having carefully considered the parties’ briefs and the applicable law, the Court enters the following Findings and Recommendations. I. BACKGROUND
In addressing a Rule 12(b)(6) motion, the Court accepts all factual allegations in the complaint as true and construes the pleadings in the light most favorable to the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Because Defendants, through the instant motion, are challenging Plaintiffs’ legal theories and not their factual allegations, the Court will not recite Plaintiffs’ factual allegations in detail. Rather, the Court notes only that Plaintiffs generally allege that the MHP unlawfully discriminates against Latino persons when MHP officers prolong traffic stops while the officers contact federal authorities to ascertain whether such Latino persons
2References to rules are to the Federal Rules of Civil Procedure unless otherwise noted.
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 4 of 26
are in the country legally. It is from this general allegation that Plaintiffs assert the five claims listed above. Defendants dispute the allegation that they discriminate against Latinos or against any other class. They maintain in the motion now before the Court, however, that some of Plaintiffs’ claims should be dismissed under Rule 12(b)(6) because they fail to state a claim upon which relief can be granted. II. LEGAL STANDARD
“Dismissal under Rule 12(b)(6) is proper only when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). III. DISCUSSION
In maintaining that some of Plaintiffs’ claims are legally insufficient and should be dismissed, Defendants argue that: (1) Plaintiffs’ state law claims are barred by Eleventh Amendment immunity, Defts’ Opening Br. (ECF 16) at 4-7; (2) Plaintiffs’ Title VI claim fails because Plaintiffs are suing individuals but Title VI applies only to programs and entities receiving federal funding and not to
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 5 of 26
individuals, id. at 8-10; and (3) Plaintiffs’ Fourth Amendment claim fails because Plaintiffs are impermissibly “doubling up” this claim with their claim that Defendants violated the Fourteenth Amendment’s equal protection clause, id. at 10-12.3 The Court addresses each argument in turn.
A. Eleventh Amendment Immunity Bars State Law Claims 1. Parties’ Arguments
Defendants note that Plaintiffs’ Counts III and IV, which allege violations of the Montana Constitution, are based solely on state law and that Plaintiffs’ other claims are based, in part, on alleged violations of state law. Defendants argue that all of these claims, to the extent that they are based on state law, are barred by Eleventh Amendment immunity. ECF 16 at 4. They argue that state officials are immune from suits in federal court based on violations of state law, including those seeking prospective injunctive relief under state law, unless the
3Defendants originally also sought dismissal of not only the foregoing claims against Attorney General Fox but also dismissal of Plaintiffs’ Fourteenth Amendment claim against him. In their reply brief, however, Defendants withdrew that portion of their motion seeking dismissal of the Fourteenth Amendment claim against Fox. Defts’ Reply Br. (ECF 18) at 15.
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 6 of 26
state waives its immunity. Id. at 5. Here, Defendants argue, Montana has not waived its immunity. Id. at 6. Thus, Plaintiffs’ “Counts III and IV, which are based solely on alleged violations of the Montana Constitution, are barred and should be dismissed .... [and Plaintiffs’ other claims] to the extent that they are based on state law, are barred under the Eleventh Amendment and should be dismissed.” Id. at 6-7.
In response, Plaintiffs argue that their claims that Defendants violated state law are cognizable in a § 1983 action “to the extent that the challenged conduct [also] violates the U.S. Constitution[.]” ECF 17 at 10. They maintain that since their claims that Defendants violated Montana’s Constitution are brought under § 1983 “in an official capacity suit for prospective injunctive relief, they do not violate the Eleventh Amendment[ ]” because such claims “are not treated as actions against the State.” Id. Plaintiffs further argue that Defendants overreach in arguing that all aspects of Plaintiffs’ federal claims that mention violations of state law also are subject to Eleventh Amendment dismissal. They maintain that such references to state law are not “claims” that can be dismissed and add that state laws are relevant to the reasonableness of an arrest under the Fourth Amendment.
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 7 of 26
2. Analysis The Eleventh Amendment to the U.S. Constitution states: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. CONST., amend XI. Immunity afforded by this provision “extends beyond the literal terms of the [Eleventh] Amendment[.]” William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 2:4755 (2014) (citing Alden v. Maine, 527 U.S. 706, 736 (1999) (“[t]he bare text of the Amendment is not an exhaustive description of the States’ constitutional immunity from suit.”). It has been interpreted to bar suits against a state by its own citizens as well as by citizens of other states. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “The Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal consent by the state.” Krainski v. Nevada ex rel. Board of Regents, 616 F.3d 963, 967 (9th Cir. 2010) (citations and internal quotations omitted). Its “jurisdictional
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 8 of 26
bar applies regardless of the nature of relief sought and extends to state instrumentalities and agencies.” Id. (citation omitted).
The Eleventh Amendment also “shields state officials from official capacity suits[ ]” with one “narrow exception” – “where the relief sought is prospective in nature and is based on an ongoing violation of the plaintiff’s federal constitutional or statutory rights.” Id. at 967-68 (emphasis in original) (quoting Central Reserve Life of N. Am. Ins. Co. v. Struve, 852 F.2d 1158, 1161 (9th Cir. 1988); Papasan v. Allain, 478 U.S. 265, 277-78 (1986); Independent Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 660 (9th Cir. 2009) (“[A] plaintiff may ... maintain a federal action to compel a state official’s prospective compliance with the plaintiff’s federal rights.”) (citations omitted)); see also Vasquez v. Rackauckas, 734 F.3d 1025, 1041 (9th Cir. 2013) (“‘A federal court[ ]’ may not ‘grant’ injunctive ‘relief against state officials on the basis of state law,’ when those officials are sued in their official capacity.”) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984)).
Applying the foregoing authority to the case at hand, the Court concludes that the Eleventh Amendment bars Plaintiffs’ Counts III and
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 9 of 26
IV, which allege violations of the Montana Constitution. As an initial matter, Plaintiffs name Butler and Fox in their official capacities. ECF 1 at ¶¶ 23 and 25. Suits against state officials in their official capacities are no different from a suit against the state itself. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Thus, Plaintiffs’ action against Defendants is essentially an action against the State of Montana.
The next question is whether Montana has expressed “unequivocal consent” to be sued. It has not. Montana has waived its immunity only for tort claims brought against it in its own state courts, but has not waived its Eleventh Amendment immunity. Klepper v. Montana Dep’t of Transportation, 2011 WL 6122748, *1 (D. Mont., Dec. 8, 2011) (citing Montana v. Gilham, 133 F.3d 1133, 1139 (9th Cir. 1998), Montana v. Peretti, 661 F.2d 756, 758 (9th Cir. 1981), and Peretti v. State, 777 P.2d 329, 332 (Mont. 1989)).
Because Montana has not otherwise waived immunity, the Eleventh Amendment bars claims against it unless the other noted exception applies – that is, where Plaintiffs seek prospective relief for ongoing violations of their federal constitutional or statutory rights. In
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 10 of 26
the case at hand, Plaintiffs seek prospective injunctive relief in Counts III and IV exclusively for violations of Article II, §§ 4 and 11, of Montana’s Constitution. ECF 1 at ¶¶ 45-46. These two counts contain no allegation that Defendants violated federal law, and the relief Plaintiffs seek regarding these two counts does not derive from ongoing violations of federal law. Only state law is implicated. These claims, therefore, are barred by Eleventh Amendment immunity. Vasquez, 734 F.3d at 1041 (citing Pennhurst State Sch. & Hosp., 465 U.S. at 106). The Court will recommend that Defendants’ motion be granted to the extent it seeks dismissal of Counts III and IV of Plaintiffs’ Complaint.
As noted, in addition to the foregoing, Defendants raise the additional argument that Plaintiffs’ other claims, to the extent they are based on state law, are barred under the Eleventh Amendment and should be dismissed. It is unclear at this juncture precisely how Defendants would have the Court parse out alleged violations of state law from Plaintiffs’ three remaining claims premised on alleged violations of federal law. Rather than attempt to carve out such allegations from Plaintiffs’ federal law claims at this point in the proceedings, the Court believes the better approach would be to permit
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 11 of 26
Defendants to object, as they see fit, to Plaintiffs’ reliance on alleged violations of state law as the case develops.
B. Legal Sufficiency of Plaintiffs’ Title VI Claim 1. Parties’ Arguments
Defendants argue that Plaintiffs’ claim in Count V that they violated Title VI of the Civil Rights Act of 1964 fails as a matter of law. ECF 16 at 8. They argue that “Title VI, by its plain language, applies to only programs or entities that are recipients of federal funding, not [to] individuals.” Id. Because Plaintiffs have brought this claim against two individuals, even though named in their official capacities, Defendants argue, “their claim fails and should be dismissed.” Id. at 910.
In response, Plaintiffs argue that their Title VI claim is proper because they are bringing it under 42 U.S.C. § 1983, which “generally supplies a remedy for the vindication of rights secured by federal statutes.” ECF 17 at 12-13. They also argue that: (1) Defendants, named in their official capacities, are “stand-ins” for the MHP and the Montana Department of Justice, which are the real parties in interest, so the claim is actually against entities and not against individuals, id.
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 12 of 26
at 13; (2) the claim is proper because Plaintiffs seek only prospective injunctive relief and not money damages, id.; and (3) the cases that Defendants cited for the proposition that Plaintiffs cannot sue individual defendants under Title VI are distinguishable because none involved “official capacity § 1983 suits seeking solely prospective declaratory and injunctive relief, so that the state entities were the real parties in interest[,]” id. at 14 (emphasis omitted).
In reply, Defendants argue that: (1) Plaintiffs have not alleged in their Complaint that they are bringing their Title VI claim under § 1983 but rather “allege only a direct action under Title VI[ ]” so if they intend to rely on § 1983, their claim is not properly pled, Defts’ Reply Br. (ECF 18) at 10; (2) Plaintiffs have failed to cite any authority supporting their argument that it is proper to state a Title VI claim against an individual in his or her official capacity, id.; (3) although the Ninth Circuit has not addressed the issue, other courts have concluded that a plaintiff cannot maintain a Title VI claim against an individual even if the claim is brought against the individual in his or her official capacity, id. at 11; and (4) even if Plaintiffs can bring their Title VI claim against Defendants in their official capacities, the claim fails to
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 13 of 26
the extent it challenges Defendants’ implementation of Title VI regulations, id. at 11-12.
2. Analysis Title VI of the Civil Rights Act of 1964 provides: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d. Individuals, such as Plaintiffs in this case, may sue under Title VI for intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 280 (2001). As an initial matter, Plaintiffs’ argument that their “Title VI claim, like the Fourth and Fourteenth Amendment claims [in their Complaint], is brought under § 1983 and must be reviewed under applicable precedent[ ]” is not persuasive. Plaintiffs maintain that, because they stated their Title VI claim under § 1983, they may proceed as though their claim for prospective injunctive relief against Defendants in their official capacities “is, in all respect other than name, to be treated as a suit against the entities that the [D]efendants are agents of.” Id. (citing cases). The problem with this argument,
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 14 of 26
however, is that Plaintiffs have not pleaded in their Complaint that their Title VI claim is brought under § 1983. See ECF 1 at ¶¶ 205-209 and Demand for Relief at ¶ D. Thus, they cannot proceed, on this basis alone, as though their Title VI claim is actually against the entities that Defendants represent.
As noted, the precise issue here actually is whether Plaintiffs may sue individuals, named in their official capacities, under Title VI for prospective injunctive relief. The Ninth Circuit has not squarely addressed this question. In Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 978 n.7 (9th Cir. 2004), the court declined to reach the argument that “programs that receive federal funding, rather than individual defendants who [the plaintiff] sued,” were the proper defendants in a Title VI action because the plaintiff in Cholla failed to state a Title VI claim.
Other circuit courts have concluded that individuals in their individual capacities are not subject to Title VI liability because they are not recipients of federal funding. See, e.g., Whitfield v. Notre Dame Middle Sch., 412 Fed. Appx. 517, 521 (3d Cir. 2011) (“Individual liability may not be asserted under Title VI.”) (citations omitted); Price
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ex rel. Price v. Louisiana Dep’t of Educ., 329 Fed. Appx. 559, 561 (5th
Cir. 2009) (citations omitted); Shotz v. City of Plantation, 344 F.3d 1161, 1171 (11th Cir. 2003) (“It is beyond question ... that individuals are not liable under Title VI.”)4; Buchanan v. City of Bolivar, Tenn., 99 F.3d 1352, 1356 (6th Cir. 1996); and United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1044 n.9 (5th Cir. 1984) (“Title VI requires that the
public bodies or private entities receiving the benefits of any such loan
refrain from racial discrimination”) (internal quotation omitted).
Similarly, several lower federal courts have concluded that the
proper defendant in a Title VI action is an entity or program receiving
federal funding rather than an individual. See, e.g., New Jersey Sand
Hill Band of Lenape & Cherokee Indians v. Corzine, 2010 WL 2674565,
at *15 (D. N.J. June 30, 2010) (“The Court agrees that individuals are
4The court in Shotz cited the following cases from other courts that had considered the issue and that “generally concluded that individuals may not be held liable for violations of Title VI because it prohibits discrimination only by recipients of federal funding[ ]”: Buchanan v. City of Bolivar, 99 F.3d 1352, 1356 (6th Cir. 1996); Folkes v. N.Y. Coll. of Osteopathic Med. of N.Y. Inst. of Tech., 214 F. Supp.2d 273, 292 (E.D. N.Y. 2002); Steel v. Alma Pub. Sch. Dist., 162 F. Supp.2d 1083, 1085 (W.D. Ark. 2001); Powers v. CSX Transp., Inc., 105 F. Supp. 2d 1295, 1311-12 (S.D. Ala. 2000); Wright v. Butts, 953 F. Supp. 1343, 1350 (M.D. Ala. 1996); Jackson v. Katy Indep. Sch. Dist., 951 F. Supp. 1293, 1298 (S.D. Tex. 1996). Shotz, 344 F.3d at 1169, n.11.
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not the proper defendants in a Title VI case.”); Gomiller v. Dees, 2007 WL 1031359, at *3 (N.D. Miss. Mar. 28, 2007) (“[T]he Court finds that individual liability does not lie in Title VI.”); Ajiwoju v. Cottrell, 2005 WL 1026702, at *1 (W.D. Mo. May 2, 2005) (holding that individuals cannot be held personally liable under Title VI); Steel v. Alma Public School Dist., 162 F.Supp.2d 1083, 1085 (W.D. Ark. 2001) (“[I]n the Title IX context, [ ] school officials may not be sued in their individual capacities.... As Title IX and Title VI are parallel to each other and operate in the same manner.”).
And at least one federal district court has concluded that “no claim may be maintained against an individual under Title VI even in his official capacity.” TC v. Valley Cent. Sch. Dist., 777 F.Supp.2d 577, 594 (S.D. N.Y. 2011); see also Karlen ex rel. J.K. v. Westport Board of Educ., 638 F.Supp.2d 293, 302 (D. Conn. 2009) (“Although there is no consensus in this Circuit, it seems unlikely that a claim can be stated against an individual defendant sued in her official capacity for violation of Title VI, as the individual does not receive Federal funding.”) (citation omitted). In these cases, however, the requested relief was not, as here, limited to declaratory and injunctive relief.
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Although the foregoing authority supporting Defendants’ motion is compelling, the Court is not inclined to recommend that the motion be granted to the extent it seeks dismissal of Plaintiffs’ Title VI claim. First, the Ninth Circuit has not addressed this issue. See, e.g., Butler v. Scripps Green Hosp., 2010 WL 1292147, at *4 (S.D. Cal. Mar. 30, 2010) (declining to dismiss Title VI claim against individual defendants because only cases outside the Ninth Circuit cited in support of motion to dismiss); see also T.M. ex rel. Benson v. San Francisco United Sch. Dist., 2010 WL 291828, at *5 (N.D. Cal. Jan. 19, 2010) (holding “there is no right of action against individuals under Title VI[,]” but allowing Title VI claim for prospective injunctive relief against individual in her official capacity to survive motion to dismiss).
Second, it can reasonably be inferred from Plaintiffs’ allegations that Defendants Butler and Fox, named solely in their official capacities, are sufficiently representative of their respective agencies to be named in their stead. And, Plaintiffs have alleged that both the MHP and Montana’s Justice Department are recipients of federal funds. See ECF 1 at ¶ 206. Thus, the Court is not inclined to recommend dismissal of Plaintiffs’ Title VI claims at this juncture.
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Third, while the Ninth Circuit has not addressed the issue at hand, a recent Ninth Circuit case – although legally and factually distinguishable from this case – noted the broad definition of “any program or activity” receiving federal funds contemplated in 42 U.S.C. § 2000d as including “ ‘all of the operations of” a state agency or department, ‘any part of which is extended Federal financial assistance.’ ” Braunstein v. Arizona Dep’t of Transportation, 683 F.3d 1177, 1188 (9th Cir. 2012) (quoting 42 U.S.C. § 2000d-4a). While certainly not determinative of the question at hand, this broad view of § 2000d’s reach, coupled with the foregoing reasons, persuades the Court that dismissal of Plaintiffs’ Title VI claim at this juncture is not warranted. In sum, without controlling authority from the Ninth Circuit, the Court is not inclined to recommend that the district court rule, as a matter of law, that Plaintiffs have failed to state a Title VI claim against the individual Defendants, named only in their official capacities and only for prospective injunctive relief.
Finally, respecting Defendants’ argument that Plaintiffs’ claim also fails to the extent it challenges Defendants’ implementation of Title VI’s regulations, the Court declines to address the issue.
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Defendants raised this argument for the first time in their reply brief and, generally, “[c]ourts decline to consider arguments that are raised for the first time in reply.” Stewart v. Wachowski, 2004 WL 2980783 (C.D. Cal. 2004) (citing Halliburton EnergyServices, Inc. v. Weatherford International, Inc., 2003 WL 22017187, * 1, n.1 (N.D. Tex. Aug. 26, 2003) (“Halliburton offers additional grounds for reconsideration in its reply [;] however, the grounds are not proper under Rule 59(e), ... and the Court will not consider an argument raised for the first time in a reply brief”)); Dietrich v. Trek Bicycle Corp., 297 F.Supp.2d 1122, 1128 (W.D. Wis.2003) ( “Defendant raised this argument for the first time in its reply brief. Because this argument should have been raised earlier or not at all, I will not consider it”); Public Citizen Health Research Group v. National Institutes of Health, 209 F.Supp.2d 37, 44 (D. D.C. 2002) (“The Court highly disfavors parties creating new arguments at the reply stage that were not fully briefed during the litigation.... By placing a new argument in the Reply, Plaintiff does not permit Defendant or Intervenor–Defendant to competently respond to such an argument”); Grupo Gigante S.A. de C.V. v. Dallo & Co., Inc., 119 F.Supp.2d 1083, 1103, n.15 (C.D. Cal. 2000) (“Although the defendants
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raised a laches defense in their opposition to the plaintiffs’ motion for summary judgment, the first time they raised a statute of limitations defense was in their reply brief. The Court need not, and does not, consider arguments raised for the first time in a reply brief”); see also Montana Fair Hous., Inc. v. City of Bozeman, 854 F. Supp. 2d 832, 846 (D. Mont. 2012) (“Because Bozeman has not had an opportunity to respond [to] this specific argument, raised for the first time on reply, the Court declines to address it here.”). Thus, to the extent Defendants’ motion seeks dismissal of Plaintiffs’ claim challenging Defendants’ implementation of Title VI’s regulations, the motion should be denied.
C. Plaintiffs’ Fourth Amendment Claim 1. Parties’ Arguments
Defendants argue that Plaintiffs’ Fourth Amendment claim fails as a matter of law and should be dismissed. ECF 16 at 10. They note that Plaintiffs allege in Count I that Defendants violated their Fourteenth Amendment equal protection rights by discriminating against them based on race. And they note that Plaintiffs in Count II “similarly allege [Defendants] violated [Plaintiffs’] Fourth Amendment rights because [Defendants] detained [Plaintiffs] ‘pretextually, for
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racially motivated reasons and without probable cause or reasonable suspicion.’ ” Id. But, Defendants argue, although “conduct may implicate more than one constitutional right, [Plaintiffs] cannot multiply their claims of discrimination as they have done in Count I and Count II.” Id.
In other words, Defendants argue, where, as here, Plaintiffs allege that law enforcement officers have performed racially-motivated traffic stops, Plaintiffs may assert a claim under the Fourteenth Amendment’s Equal Protection Clause because it provides an “explicit textual source” for claims of racial discrimination. Id. at 11. But Plaintiffs may not also assert a claim for the same conduct under the Fourth Amendment because doing so would impermissibly “double up” multiple constitutional claims arising from a single tortious act. Id. at 11-12.
Plaintiffs respond that their Fourth Amendment and Fourteenth Amendment claims are sufficiently different from one another to avoid dismissal based on Defendants’ assertion that the claims are impermissibly duplicative. ECF 17 at 4. Plaintiffs argue that their “Fourth Amendment claim is based on different facts and laws, and
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does not necessarily depend on the existence of racial discrimination.” Id. Whereas their Fourteenth Amendment claim is based on racial discrimination, Plaintiffs argue, their Fourth Amendment claim is based on allegations that Defendants seize and detain persons “without probable cause for the purpose of checking into civil immigration status[,]” and such allegations do not necessarily depend on racial discrimination. Id. at 5-6. And, Plaintiffs argue, if the Court dismisses their Fourth Amendment claim, their Fourteenth Amendment claim “would not provide a remedy for all of the unconstitutional conduct that is challenged in the complaint.” Id. at 6.
Finally, Plaintiffs argue that, although Fourth Amendment violations are not necessarily dependent on racial discrimination, racial bias can inform conduct giving rise to a Fourth Amendment violation. Such an allegation of racial bias does not foreclose a Fourth Amendment claim as duplicative of a Fourteenth Amendment claim, they argue, but rather is merely relevant to consideration of a Fourth Amendment claim. Id. at 7-8.
In reply, Defendants argue that: (1) Plaintiffs’ argument that their Fourth Amendment and Fourteenth Amendment claims are
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distinct “is belied by the plain language of their complaint[ ]” which expressly alleges that the traffic stops for extended periods were for “racially motivated reasons ...[,]” ECF 18 at 12; (2) “doubling up” of claims when both are based on allegations of racial discrimination is impermissible, id. at 13-14; (3) racial motivation for alleged traffic stops is irrelevant to the question of whether MHP officers violated the Fourth Amendment, id. at 14; and (4) Plaintiffs’ reliance on cases in which both Fourth and Fourteenth Amendment claims were allowed to proceed together is misplaced because neither the district nor appellate courts involved were asked to address the question, posed here, of whether the Fourth and Fourteenth Amendment claims were duplicative, id. at 14-15.
2. Analysis Having considered the parties’ arguments and the relevant authority, the Court concludes that dismissal of Plaintiffs’ Fourth Amendment claim is not appropriate at this juncture. The Ninth Circuit has noted that, “[w]here a claim can be analyzed under ‘an explicit textual source’ of rights in the Constitution, a court may not also assess the claim under another, ‘more generalized,’ source.”
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Ramirez v. Butte–Silver Bow Cnty., 298 F.3d 1022, 1029 (9th Cir. 2002) (as amended), affirmed, 540 U.S. 551 (2004); see also Graham v. Connor, 490 U.S. 386, 395 (1989) (“Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.”).
But here, the Court is not convinced that Plaintiffs have alleged a Fourth Amendment claim amenable to analysis under only the “explicit textual source” of the Fourteenth Amendment and which would preclude consideration under all other sources. Rather, the Court concludes that Plaintiffs’ Fourth Amendment and Fourteenth Amendment claims are sufficiently distinct that they are not impermissibly duplicative.
In stating their Fourth Amendment claim, Plaintiffs allege that: Defendants, acting under color of law and in concert with one another, stopped, seized, searched, arrested and/or impermissibly extended stops of Plaintiffs, pretextually, for racially motivated reasons and without probable cause or reasonable suspicion that they had violated the law. Such conduct violated the Fourth Amendment guarantee against unreasonable searches and seizures, the Fourteenth Amendment, and 42 U.S.C. § 1983.
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 25 of 26
ECF 1 at ¶ 194 (emphasis added); see also ¶ 196. While their Fourth Amendment claim alleges racially motivated
reasons for the stops, arrests, and seizures, it also alleges that the stops, arrests, and seizures were made “without probable cause or reasonable suspicion[.]” Id. This claim can reasonably be read to allege a basis for the Fourth Amendment violation that is distinct from and independent of actions that are solely racially motivated. Thus, at this juncture in the proceedings, the Court cannot conclude that the Fourth Amendment claim is a mere “doubling up” of Plaintiffs’ Fourteenth Amendment claim as Defendants argue. The motion to dismiss, to the extent it seeks dismissal of Plaintiffs’ Fourth Amendment claim (Count II), therefore, should be denied. IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Defendants’ motion to dismiss (ECF 15) be GRANTED to the extent it seeks dismissal of Counts III and IV, but DENIED in all other respects, as discussed herein.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve a copy of the Findings and Recommendations of United States
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Case 2:13-cv-00077-DLC Document 19 Filed 04/01/14 Page 26 of 26
Magistrate Judge upon the parties. The parties are advised that pursuant to 28 U.S.C. § 636, any objections to the findings and recommendations must be filed with the Clerk of Court and copies served on opposing counsel within fourteen (14) days after entry hereof, or objection is waived.
DATED this 1st day of April, 2014. /s/ Carolyn S. Ostby United States Magistrate Judge
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 FILED 
 Case 2:13-cv-00077-DLC Document 22 Filed 07/25/14 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

JUL 2 5 2014
Clerk, u.s District Court
District Of Montana Missoula

JOSE RIOS-DIAZ, ELIGIO DURAN­ SANCHEZ, DELFIO MEJIA­ OCHOA, and EDUARDO BARRAGAN-NARANJO, on behalf of themselves and all others similarly situated, and MONTANA IMMIGRANT JUSTICE ALLIANCE,
Plaintiffs,
vs.
COLONEL TOM BUTLER, in his official capacity as Chief Administrator ofthe MONTANA HIGHWAY PATROL, ATTORNEY GENERAL TIM FOX, in his official capacity as head of the MONTANA DEPARTMENT OF JUSTICE,
Defendants.

CV-13-77-BU-DLC-CSO ORDER

Plaintiffs Jose Rios-Diaz, Eligio Duran-Sanchez, Delfio Mejia-Ochoa, Edurado Barragan-Naranjo, and Montana Immigrant Justice Alliance (collectively "Plaintiffs") filed a complaint pursuant to 42 U.S.C. § 1983 asserting causes of action against Defendants in their official capacities for violations ofthe Fourth and Fourteenth Amendments ofthe United States Constitution. Plaintiffs also

1 


Case 2:13-cv-00077-DLC Document 22 Filed 07/25/14 Page 2 of 9
assert causes of action against Defendants in their official capacities based on violations of the Montana Constitution and Title VI, 42 U.S.C. § 2000(d). Defendants move to dismiss some of Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
United States Magistrate Judge Carolyn S. Ostby issued fmdings and recommendations granting Defendants' motion in part and denying in part. Defendants timely filed objections and are therefore entitled to de novo review of the specified findings and recommendations to which they object. 28 U.S.C. § 636(b)(1). The portions ofthe findings and recommendations not specifically objected to will be reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). For the reasons stated below, this Court adopts Judge Ostby's findings and recommendations in full. The parties are familiar with the factual and procedural background of this case, so it will not be repeated here. I. Plaintiffs' Objections
A. State Law Claims Defendants first object to Judge Ostby's decision not to dismiss Plaintiffs' federal claims to the extent they are premised on alleged violations of state law. Defendants argue that claims based on alleged violations of state law are irrelevant
2 


Case 2:13-cv-00077-DLC Document 22 Filed 07/25/14 Page 3 of 9
to a § 1983 claim. Further, claims based on state law are barred by the Eleventh Amendment. Thus, Defendants contend, Plaintiffs' claims that are based on alleged violations of state law should be dismissed.
This Court, like Judge Ostby, declines to address Defendants' argument that violations of state law are irrelevant to a § 1983 claim. The Court agrees with Judge Ostby that the prudent option is to allow "Defendants to object, as they see fit, to Plaintiffs' reliance on alleged violations of state law as the case develops." (Doc. 19 at 11.)
The Court finds that this is the best course of action for two reasons. First, contrary to Defendants' assertions, Plaintiffs' remaining claims appear on their face to be based on conduct by the Montana Highway Patrol ("MHP") that allegedly violates federal law. Plaintiffs do allege conduct by the MHP that violates Montana law, or is not authorized under Montana law, but these allegations do not form the sole basis for Plaintiffs' claims. Plaintiffs merely allege that the MHP's conduct violates both federal law and Montana law. Defendants' objections are better dealt with in a motion in limine or other procedural device rather than a motion to dismiss under Rule 12(b)(6). Second, Defendants do not expressly identify which of Plaintiffs' claims are "based on alleged violations of state law." (Doc. 20 at 8.) The Court is left wondering how
3 


Case 2:13-cv-00077-DLC Document 22 Filed 07/25/14 Page 4 of 9
it would practically separate alleged violations of state law from Plaintiffs' claims based on federal law. Thus, at this stage in the proceeding, the Court views the better approach as allowing Plaintiffs' case to develop and Defendants to object as necessary. Defendants' objection is overruled.
B. Title VI Claim Defendants next object to Judge Ostby's recommendation not to dismiss Plaintiffs' claim under Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d. Judge Ostby declined to dismiss the claim principally because the Ninth Circuit has not addressed the issue of whether a party may sue an individual, named solely in his official capacity, for prospective injunctive relief under Title VI. Defendants argue that a Title VI claim for prospective injunctive relief cannot be brought against an individual, even if the claim is brought against an individual acting in his official capacity. However, after a review of the applicable case law, the Court finds that a Title VI claim may be brought against an individual named in his official capacity. Defendants are correct that some circuit and district courts have found that individuals, named solely in their individual capacities, cannot be held liable for violations of Title VI. Shotz v. City ofPlantation, 344 F.3d 1161, 1169 (11 th Cir. 2003) ("[I]ndividuals may not be held liable for violations of Title VI because it
4 


Case 2:13-cv-00077-DLC Document 22 Filed 07/25/14 Page 5 of 9
prohibits discrimination only by recipients of federal funding."); Ajiwoju v. Cottrell, 2005 WL 1026702, at *1 (W.D. Mo. May 2,2005) (dismissing Title VI claim against parties named in their individual capacities); Steel v. Alma Pub. Sch. Dist., 162 F. Supp. 2d 1083, 1085 (W.D. Ark. 2001) (dismissing Title VI claim against school superintendent named in his individual capacity).
However, when a Title VI claim is brought against an individual acting in his official capacity, and the parties are seeking injunctive relief as opposed to monetary damages, courts have allowed the claims to survive a motion for dismissal. For example, in Steel, the court was tasked with determining if Title VI claims could be brought against school officials named in their official and individual capacities. The court dismissed the Title VI claims brought against defendants named in their individual capacities, but allowed the claims against school administrators named in their official capacities to stand. The court determined that official-capacity Title VI claims were appropriate when the individual named in the suit "exercise[d] administrative control over programs and activities within the school district ...." Steel, 162 F. Supp. 2d at 1085. Applying state law to determine if the administrators had the statutory authority to exercise administrative control over the school district, the court found that the school superintendent, the school board, and director of the state Department of
5 


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Education were empowered with this authority. Id. The court thus allowed the Title VI claims to stand. Id. This approach to official-capacity suits has also been applied by at least one other district court. Doe ex rei. Doe v. Barger, 193 F. Supp. 2d 1112, 1118 (E.D. Ark. 2002) (finding liability under Title IXI for school superintendent named in his official capacity).
Similarly, at least one circuit court has recognized the potential liability under Title IX for administrators named in their official capacities. In Smith v. Metropolitan School District Perry Township, 128 F.3d 1014 (7th Cir. 1997), the Seventh Circuit Court of Appeals examined whether a school principal and viceprincipal constituted grant recipients under Title IX in order to determine whether they could be held liable in their official capacities. The Court determined that individuals named in their official capacities must have "administrative control" over the program or activity receiving federal funds in order to be held liable in their official capacity under Title IX. Smith, 128 F.3d at 1020 (citing 20 U.S.C. § 1687; § 8801). The Court then applied state law to determine if the principal and vice-principal possessed sufficient administrative control. It concluded that they
I Courts have established that case law concerning Title VI and Title IX are to be construed interchangeably. Mockv. S. Dakota Bd o/Regents, 267 F. Supp. 2d 1017, 1019 (D.S.D. 2003); see also Shotz v. City o/Plantation, Fla., 344 F.3d 1161,1170 n. 12 (lIth Cir. 2003) ("We construe Titles VI and IX in pari materia.").
6

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did not. The Court determined that state law placed administrative control over the school, i.e., the program or activity receiving federal funds, with the school board and school district. Id. Thus, the school's principal and vice-principal could not be sued, even in their official capacities, under Title IX. Id. at 1021.
Here, the Court will apply the analysis discussed in Steel and Smith. Title 42 U.S.C. § 2000d defines "program or activity" to "mean all of the operations of ... a department [or] agency ... of a State or of a local government." 42 U.S.C.A. § 2000d-4a. As in Steel, this Court looks to state law to determine if Defendants Fox and Butler have administrative control over "all of the operations of' their respective agencies. Id. IfFox and Butler have administrative control, then they may be held liable in their official capacities under Title VI.
Montana law provides that the Montana Department of Justice ("DOJ") has "control and supervision" over the MHP and the authority to "make, promulgate, and amend rules which prescribe procedures and practice requirements of the
[MHP]." Mont. Code Ann. §§ 44-1-101; 44-1-103. The head of the DOJ is the
attorney general and the attorney general has the authority to "supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department ... [and] establish the polic[ies] to be followed by the department and
[its] employees." Mont. Code Ann. §§ 2-15-112; 2-15-2001. Thus, Attorney
7

Case 2:13-cv-00077-DLC Document 22 Filed 07/25/14 Page 8 of 9
General Fox, as head of the DOJ, has sufficient administrative control over the operations of the MHP to constitute a grant recipient under Title VI. He may be sued in his official capacity under Title VI.
Second, Montana law provides that the Chief ofthe MHP "shall have direct control and supervision of all patrol officers, subject to the approval ofthe attorney generaL" Mont. Code Ann. § 44-1-301. Further, the Chief of the MHP retains "control" over the "duties and jurisdiction of ... supervisory personnel." Mont. Code Ann. § 44-1-302. Therefore, Colonel Butler, as Chief of the MHP, has sufficient administrative control over the operations of the MHP to constitute a grant recipient under Title VI. He, too, may be sued in his official capacity under Title VI. Accordingly, the Court overrules Defendants' objection and denies Defendants' motion to dismiss Plaintiffs' Title VI claims.
There being no clear error in any ofthe remaining findings and recommendations,
IT IS ORDERED that Judge Ostby's Findings and Recommendations (Doc. 19) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Defendants Colonel Tom Butler and Montana Attorney General Tim Fox's Motion to Dismiss (Doc. 15) is GRANTED for Counts III and IV, but DENIED in all other respects.
8

Case 2:13-cv-00077-DLC Document 22 Filed 07/25/14 Page 9 of 9

25~ay Dated this

of July 2014.

Dana L. Christensen, Chief Juoge United States District Court

9 


 
 Case 2:13-cv-00077-DLC Document 39 Filed 04/03/15 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF MONTANA 
 BUTTE DIVISION 


JOSE RIOS-DIAZ, ELIGIO DURAN­ SANCHEZ, DELFIO MEJIA-OCHOA, and EDUARDO BARRAGAN­ NARANJO, on behalf of themselves and all others similarly situated, and MONTANA IMMIGRANT JUSTICE ALLIANCE,
Plaintiffs,
v.
COLONEL TOM BUTLER, in his official capacity as Chief Administrator of the MONTANA HIGHWAY PATROL, ATTORNEY GENERAL TIM FOX, in his official capacity as head of the MONTANA DEPARTMENT OF JUSTICE,
Defendants.

CV -13-77 -BU-DLC-CSO
JUDGMENT
FILED
APR 03 2015
Clerk, u.s 0istrtQ Court
District Of Montana Missoula

Defendants served on Plaintiffs an Offer of Judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure and that Offer of Judgment has been accepted. Accordingly, the Court enters the following Judgment:

Case 2:13-cv-00077-DLC Document 39 Filed 04/03/15 Page 2 of 5
1. Adherence to policy: The Montana Highway Patrol shall adhere to its policy, Montana Highway Patrol GR-9, attached as Exhibit A, which has been duly adopted, and shall adhere to the guidelines for civil immigration issues stated therein in all traffic stops and detentions conducted by the Montana Highway Patrol. The policy may be revoked or amended by the Montana Highway Patrol based upon subsequent changes in controlling case law or if the State enters into a 287(g) agreement.
2. Training: All Montana Highway Patrol Troopers are to receive training regarding the application of GR-9.
3. Monitoring: Provided funding is appropriated, Defendants shall, for a period of five years, hire and pay for annual racial-profiling studies similar in nature and content to the December 18,2013 study conducted by Washington State University researchers titled "MHP Traffic Stop Data Analysis Project." Defendants shall retain the Washington State University researchers who conducted the December 18,2013 study subject to that entity's williness and ability to conduct the required analysis. All future studies will conform substantially with the 2013 study and be conducted by the same Washington State University researchers so long as they are able and willing to continue. Ifunavailable, a similarly-qualified and experienced entity will be retained to conduct the studies. All monitoring reports shall be public and posted on the Montana Department of Justice website.
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4. Additional traffic stop and detention data: Defendants shall collect additional traffic stop and detention data by providing a box on the Montana Highway Patrol "Citizen Contact Log" that will require a trooper to check the box to indicate whether in the course of a traffic stop the trooper contacted Department of Homeland Security personnel for any reason.
5. Payment of costs, including attorney's fees: Plaintiffs shall be entitled to costs, including attorney's fees, as allowed by law and in an amount to be determined by the Court.
6. Racial profiling reports. The Montana Highway Patrol will submit annual reports to the Montana Department of Justice regarding racial profiling and what actions have been taken by the Montana Highway Patrol to avoid racial profiling in each period covered by the report. The Montana Highway Patrol shall continue to provide such reports so long as it has a legal or policy obligation to do so. These annual reports shall be public and posted on the Montana Department of Justice website.
7. Independent Police Auditor. The Montana Highway Patrol and the Attorney General shall establish an internal procedure within the Montana Highway Patrol providing for appointment and payment of an Independent Police Auditor (IPA) to review the Montana Highway Patrol's investigation of and response to complaints from motorists or their representatives relating to claims or allegations of
3 


Case 2:13-cv-00077-DLC Document 39 Filed 04/03/15 Page 4 of 5
racial profiling and to detennine whether that investigation was adequate. The IPA will provide an objective, third-party analysis of the scope and execution of any such investigation and shall provide the results of IPA reviews to the Montana Highway Patrol. The IPA may not be an employee of the Montana Department of Justice or the Montana Highway Patrol and must be qualified by training and experience to perfonn the duties of the IPA. The Montana Attorney General shall have sole authority and discretion to make final decisions concerning the appointment of the IPA, the structure and operation of the IPA process, and whether to take actions based on the IPA report.
8. No determination of liability. The Defendants have not admitted and do not admit liability. This Judgment is not based upon any admission of liability or detennination of liability by the Court. It is based upon the terms of a Rule 68 Offer of Judgment. Liability has not been detennined by the Court and is not determined by this Judgment.
9. Effect of judgment. This Judgment shall be effective for all purposes in this litigation, including actions to enforce the tenns of the Judgment and any proceedings that shall be had to detennine fees. It shall not, however, be used in or have any other effect of any kind or nature in any other proceeding and, in particular, shall not have any res judicata or collateral estoppel effect in any other action of any kind, including any action for damages that may be brought in the future.
4

Case 2:13-cv-00077-DLC Document 39 Filed 04/03/15 Page 5 of 5
L.r~
Dated this day of April, 2 1 . Dana L. Christensen, Chief Judge United States District Court
5 


Case 2:13-cv-00077-DLC Document 39-1 Filed 04/03/15 Page 1 of 3
Chapter [TII]:[GENERAL REGULATIONS) Section: [GR-9] Subject: Immigration Revised: [DATE]
A. PURPOSE
The purpose of this policy is to establish guidelines for handling civil immigration issues that arise during stops and detentions. This policy does not limit or restrict the enforcement of federal immigration laws to less than the fullest extent permitted by federal law, nor does it restrict the full enforcement of state laws .
B. POLICY
Troopers shall conduct contacts with persons suspected of being unlawfully present in the United States in a manner consistent with federal and state laws regulating immigration and protecting the civil rights, privileges, and immunities of all persons.
Troopers may not stop or detain or unnecessarily prolong a stop or detention solely for the plU']Jose of verifying a person' s immigration status, even if the detention for verification purposes is requested by U.S. Customs and Border Protection ("CBP") or Immigration and Customs Enforcement ("ICE").
Troopers may not contact, stop, or detain a person based on race, religion, national origin, gender, sexual orientation, or economic status, except when it is part of a suspect description linking that person to a palticular unlawful incident and said description is timely, reliable, and geographically relevant or when othelwise authorized by law.
C. DEFINITIONS
Aliell Any person who is not a citizen or national of the United States.
Civil immigration violation Unlawful presence of an alien in the United States, without morc, is not a criminal immigration violation. Examples of civil, as opposed to criminal, immigration violations may include, but are not limited to, an alien whose visa has expired and has not timeJy filed for a change of status, or an alien who engages in unauthorized employment in violation of the terms of a visa .
Criminal immigration violation In celtain instances, violations of federal immigration laws are criminal in nature. Examples include but are not limited to violations of: 8 USC § 1324 (smuggling or harboring of certain undocumented aliens); 8 USC § 1325(a) (illegal entry of an alien in the presence of an officer); and 8 USC § 1326 (reentry of aliens previollsly excluded or deported).
EXHIBIT
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Chapter [llI] :[GENERAL REGULATIONS] Section: [GR-9] Subject: Immigration Revised : [DATE]
CBP
United States Customs and Border Protection
ICE United States Immigration and Customs Enforcement
Immigration status Legal standing of an alien's presence in the United States.
Reasonable period o{time The amount of time necessary for a trooper to diligently pursue a means of investigation that is likely to confirm or dispel the trooper's suspicions of criminal activity.
Reasonable suspicion A particularized and objective basis for suspecting the particular person stopped of criminality. This assessment is to be made in light of the totality of the circumstances. A trooper may stop and investigate a person based on reasonable suspicion alone but may not arrest.
UIl/mv{ully presellt Alien whose stay in the United States has not been authorized by the Department of Homeland Security, or a person who entered and remained in the United States without receiving the required authorization from the Department.
D. GENERAL CONTACTS
1. During a consensual contact, a trooper may inquire about a person's immigration status if this inquiry is not based solely on a person's race, national origin, or language capabilities, and is based on reasonable suspicion.
2. The person contacted does not have to answer questions about immigration status or produce any documentation relating to immigration status, but may choose to do so voluntarily.
3. In a consensual contact, a trooper may ask but may not demand that a person produce immigration documents.
E. PERSONS LAWFULLY STOPPED OR DETAINED
1. If, during a lawful stop or detention, a trooper has reasonable suspicion that a person is unlawfully present in the United States, the trooper may make a reasonable attempt to determine the person's immigration status by lIsing all available facts or cvidencc, including any government issued identification.

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Chapter [Ill]: [GENERAL REGULATIONS] 
 Section: [GR-9] 
 Subject: Immigration 
 Revised: [DATE] 

2. A person's race, national origin, or language abilities are not, by themselves, reasons to suspect that a person is unlawfully present in the United States.
3. If, after reviewing all available facts and evidence, the trooper still reasonably suspects the person is unlawfully present in the United States, the trooper may attempt to verify the person ' s immigration status by contacting ICE or CBP.
4. A trooper may not stop or detain a person solely for investigating that person's immigration status.
5. A trooper may not prolong a stop or detention solely for purposes of verifying a person's immigration status. This prohibition applies regardless of whether ICE or CBP has been contacted. If the reasonable time necessary to complete the initial stop or detention has expired and ICE or CBP has not yet verified the person's inunigration status, then the person must be released unless the officer has reasonable suspicion of additional or different criminal activity. The trooper may, in any case, refer the person's information to ICE or CBP .
6. If a person is lawfully stopped or detained and the trooper has reasonable suspicion of additional or different criminal activity, then the trooper may continue his or her attempt to verify the person ' s immigration status during, but not beyond, the investigation of the additional or different criminal activity .
F. CIVIL IMMIGRATION VIOLATIONS
1. If a trooper believes or has actual knowledge that a person has conunitted a civil immigration violation, the trooper may not arrest the person for that violation and may not detain the person longer than necessary to complete the contact, even if requested by ICE or CBP.
2. A trooper may not atTest a person solely because the person lacks proper immigration documentation, or chooses not to answer questions that are directed solely to inunigration status and which do not have some otherwise related law enforcement purpose.
G. DIUVER AND PASSENGER IDENTIFICATION
Nothing in this policy limits a trooper 's authority under Montana Code Annotated § 46-5-401 to demand that a lawfully stopped driver produce his or her driver's license and request that a passenger produce identification.