U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:16-cv-03745

CLOSED

Lomas et al v. Harris County, Texas Assigned to: Chief Judge Lee H Rosenthal Related Case: 4:16-cv-01414 Cause: 42:1983 Civil Rights Act
Plaintiff Lucas Lomas

Date Filed: 12/28/2016 Date Terminated: 11/01/2017 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alec George Karakatsanis Civil Rights Corps 1601 Connecticut Avenue NW Suite 800 Washington, DC 20009 202-894-6142 Email: alec@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Lewis Gerstein Civil Rights Corps 1601 Connecticut Ave NW Suite 800 Washington, DC 20009 202-894-6142 Email: charlie@civilrightscorps.org ATTORNEY TO BE NOTICED
Susanne Ashley Pringle Texas Fair Defense Project 314 E Highland Mall Ave No. 108 Austin, TX 78752 512-367-5220 ext. 103 Email: springle@fairdefense.org ATTORNEY TO BE NOTICED
Elizabeth Anne Rossi Civil Rights Corps 1601 Connecticut Ave. NW Suite 800 Washington, DC 20009 202-894-6142

Plaintiff Carlos Ealgin
V. Defendant Harris County, Texas

Email: elizabeth@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alec George Karakatsanis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Lewis Gerstein (See above for address) ATTORNEY TO BE NOTICED
Susanne Ashley Pringle (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Anne Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katharine Davenport David Husch Blackwell LLP 600 Travis Suite 2350 Houston, TX 77002 713-525-6258 Fax: 713-647-6884 Email: kate.david@huschblackwell.com
ATTORNEY TO BE NOTICED
Philip James Morgan Husch Blackwell, LLP 600 Travis Street Suite 2350 Houston, TX 77002 713-647-6800 Fax: 713-647-6884 Email: phil.morgan@huschblackwell.com ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

12/28/2016 1

COMPLAINT against Harris County, Texas (Filing fee $400, receipt number 17702742) filed by Carlos Ealgin, Lucas Lomas. (Attachments: # 1 Civil Cover Sheet)(Rossi, Elizabeth) Payment information added on 12/28/2016 (ltien, 4). (Entered: 12/28/2016)

12/28/2016

2 MOTION to Certify Class by Carlos Ealgin, Lucas Lomas, filed. Motion Docket Date 1/18/2017. (Attachments: # 1 Exhibit Declaration of Class Counsel, # 2 Proposed Order)(Rossi, Elizabeth) (Entered: 12/28/2016)

12/28/2016

3 MOTION for Preliminary Injunction by Carlos Ealgin, Lucas Lomas, filed. Motion Docket Date 1/18/2017. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 12/28/2016)

12/28/2016

4 MOTION for Elizabeth Rossi to Appear Pro Hac Vice by Carlos Ealgin, Lucas Lomas, filed. Motion Docket Date 1/18/2017. (Rossi, Elizabeth) (Entered: 12/28/2016)

12/28/2016

5 MOTION for Charles Gerstein to Appear Pro Hac Vice by Carlos Ealgin, Lucas Lomas, filed. Motion Docket Date 1/18/2017. (Rossi, Elizabeth) (Entered: 12/28/2016)

12/28/2016

6 MOTION for Alexander Karakatsanis to Appear Pro Hac Vice by Carlos Ealgin, Lucas Lomas, filed. Motion Docket Date 1/18/2017. (Rossi, Elizabeth) (Entered: 12/28/2016)

12/29/2016

7 ORDER for Initial Pretrial and Scheduling Conference by Telephone and Order to Disclose Interested Persons. Counsel who filed or removed the action is responsible for placing the conference call and insuring that all parties are on the line. The call shall be placed to (713)250-5613. Telephone Conference set for 2/13/2017 at 09:15 AM by telephone before Judge Kenneth M Hoyt (Signed by Judge Kenneth M Hoyt) Parties notified.(hcarradi, 4) (Entered: 12/29/2016)

01/04/2017

8 NOTICE of Transfer. Case reassigned to Chief Judge Lee H Rosenthal for the following reason: Agreement between the judges. Judge Kenneth M Hoyt no longer assigned to the case. Parties notified, filed. (chorace) (Entered: 01/04/2017)

01/11/2017

9 ORDER Scheduling Rule 16 Conference With the Court and Setting Out the Requirements for Initial Pretrial Work. Initial Conference set for 3/27/2017 at 09:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal(Signed by Chief Judge Lee H Rosenthal) Parties notified. (leddins, 4) (Entered: 01/11/2017)

01/19/2017

10 ORDER granting 6 Motion for Alec Karakatsanis to Appear Pro Hac Vice. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (rosaldana, 4) (Entered: 01/19/2017)

01/19/2017

11 ORDER granting 5 Motion for Charles Gerstein to Appear Pro Hac Vice. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (rosaldana, 4) (Entered: 01/19/2017)

01/19/2017
01/19/2017
03/09/2017
03/10/2017 15
03/20/2017
04/10/2017
04/10/2017 18
04/10/2017 04/10/2017 04/11/2017
21
04/18/2017 22
04/24/2017 04/24/2017

12 ORDER granting 4 Motion for Elizabeth Rossi to Appear Pro Hac Vice. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (rosaldana, 4) (Entered: 01/19/2017)
13 WAIVER OF SERVICE Returned Executed as to Harris County, Texas served on 1/9/2017, answer due 3/10/2017, filed.(Gerstein, Charles) (Entered: 01/19/2017)
14 Agreed MOTION for Extension of Time To file Responsive Pleading and Motion to Postpone Rule 26(f) Conference by Harris County, Texas, filed. Motion Docket Date 3/30/2017. (Attachments: # 1 Proposed Order)(David, Katharine) (Entered: 03/09/2017)
ORDER entered GRANTING 14 Agreed MOTION for Extension of Time To file Responsive Pleading and Motion to Postpone Rule 26(f) Conference. Joint Discovery/Case Management Plan due by 4/10/2017 and Initial Conference reset for 4/14/2017 at 03:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 03/10/2017)
16 NOTICE of Resetting. Parties notified. Initial Conference reset for 4/24/2017 at 02:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 03/20/2017)
17 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Carlos Ealgin, Lucas Lomas, filed. (Attachments: # 1 Proposed Order Proposed Scheduling and Docket Control Order)(Gerstein, Charles) (Entered: 04/10/2017)
MOTION for More Definite Statement by Harris County, Texas, filed. Motion Docket Date 5/1/2017. (David, Katharine) (Entered: 04/10/2017)
19 CERTIFICATE OF INTERESTED PARTIES by Harris County, Texas, filed.(David, Katharine) (Entered: 04/10/2017)
20 CERTIFICATE OF INTERESTED PARTIES by Carlos Ealgin, Lucas Lomas, filed.(Gerstein, Charles) (Entered: 04/10/2017)

RESPONSE in Opposition to 18

MOTION for More

Definite Statement, filed by Carlos Ealgin, Lucas Lomas. (Gerstein,

Charles) (Entered: 04/11/2017)

REPLY in Support of 18

MOTION for More Definite

Statement, filed by Harris County, Texas. (David, Katharine) (Entered:

04/18/2017)

23 NOTICE of Appearance by Susanne Pringle on behalf of Carlos Ealgin, Lucas Lomas, filed. (Pringle, Susanne) (Entered: 04/24/2017)

24 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Initial conference held on April 24, 2017. For the reasons stated on the record,

04/24/2017
05/02/2017 05/04/2017
05/04/2017
05/18/2017 29
05/31/2017 06/21/2017 06/21/2017 07/17/2017

the motion for more definite statement, Docket Entry No. 18, is denied. The court will enter a scheduling and docket control order, as stated on the record. The plaintiffs must amend their complaint by May 12, 2017. The defendants must respond to the motion for a preliminary injunction by May 26, 2017. Appearances: Charles Gerstein/Elizabeth Rossi/Susanne Pringle(by phone) for Pltfs. and Phil Morgan for Deft. (Court Reporter: J. Sanchez), filed.(leddins, 4) (Entered: 04/25/2017)
25 SCHEDULING ORDER. Bench. Amended Pleadings due by 5/12/2017. Joinder of Parties due by 5/12/2017 Pltf Expert Witness List due by 8/4/2017. Deft Expert Witness List due by 9/1/2017. Discovery due by 10/13/2017. Mediation due by 10/13/2017. Dispositive Motion Filing due by 11/10/2017. Joint Pretrial Order due by 1/12/2018. Docket Call set for 1/19/2018 at 02:00 PM in Courtroom 11B before Chief Judge Lee H Rosenthal(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 04/25/2017)
26 NOTICE of Setting. Parties notified. Discovery Hearing set for 5/4/2017 at 11:30 AM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 05/02/2017)
27 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on May 4, 2017. The court will enter a scheduling order, as stated on the record. Appearances: Alec Karakatsanis/Charles Gerstein/Elizabeth Anne Rossi, Susanne Pringle (by phone) for Pltfs. and Phil Morgan for Deft.(Court Reporter: H. Alcazar), filed.(leddins, 4) (Entered: 05/04/2017)
28 AMENDED SCHEDULING ORDER. Motion to Dismiss Filing due by 5/18/2017. Motion for a Preliminary Injunction Filing due by 6/26/2017. Responses due by 6/8/2017. Reply due by 06/15/2017. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 05/05/2017)

ANSWER to 1

Amended

Complaint/Counterclaim/Crossclaim etc. by Harris County, Texas,

filed.(David, Katharine) (Entered: 05/18/2017)

30 DEMAND for Trial by Jury by Harris County, Texas, filed.(David, Katharine) (Entered: 05/31/2017)

31 Unopposed MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction by Harris County, Texas, filed. Motion Docket Date 7/12/2017. (Attachments: # 1 Proposed Order) (David, Katharine) (Entered: 06/21/2017)

32 ORDER granting 31 Motion for Extension of Time; Motion-related deadline set re: 3 MOTION for Preliminary Injunction. Responses due by 7/26/2017..(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 06/22/2017)

33 Unopposed MOTION for Extension of Time Respond to Plaintiffs

07/17/2017 08/24/2017
08/24/2017 09/22/2017
09/26/2017 10/25/2017 10/30/2017 11/01/2017
41 11/01/2017
42

Motion for Preliminary Injunction by Harris County, Texas, filed. Motion Docket Date 8/7/2017. (Attachments: # 1 Proposed Order Order on Harris County's Unopposed Motion for Extension)(David, Katharine) (Entered: 07/17/2017)
34 ORDER entered : GRANTING 33 Unopposed MOTION for Extension of Time Respond to Plaintiffs Motion for Preliminary Injunction. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 07/17/2017)
35 Unopposed MOTION for Extension of Time Respond to Plaintiff's Motion for Preliminary Injunction by Harris County, Texas, filed. Motion Docket Date 9/14/2017. (Attachments: # 1 Proposed Order Order on Harris County's Unopposed Motion for Extension)(Morgan, Philip) (Entered: 08/24/2017)
36 ORDER granting 35 Motion for Extension of Time. Harris County's response to Plaintiffs' Motion for Preliminary Injunction is now due September 25, 2017. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4) (Entered: 08/25/2017)
37 Unopposed MOTION for Extension of Time Respond to Plaintiff's Motion for Preliminary Injunction by Harris County, Texas, filed. Motion Docket Date 10/13/2017. (Attachments: # 1 Proposed Order Order on Harris County's Unopposed Motion for Extension)(David, Katharine) (Entered: 09/22/2017)
38 ORDER granting 37 Motion for Extension of Time. Harris County's response is now due October 25, 2017. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4) (Entered: 09/26/2017)
39 Unopposed MOTION for Extension of Time To Respond to Plantiff's Motion for Preliminary Injunction by Harris County, Texas, filed. Motion Docket Date 11/15/2017. (Attachments: # 1 Proposed Order) (David, Katharine) (Entered: 10/25/2017)
40 ORDER granting 39 Motion for Extension of Time. Harris County's response to Plaintiffs' Motion for Preliminary Injunction is due 11/1/2017. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4) (Entered: 10/30/2017)
Joint MOTION for Entry of Judgment by Carlos Ealgin, Lucas Lomas,
filed. Motion Docket Date 11/22/2017. (Attachments: # 1 Exhibit A Final Consent Judgment and Settlement Agreement) (Gerstein, Charles) (Entered: 11/01/2017)

FINAL CONSENT JUDGMENT granting 41

Joint

MOTION for Entry of Judgment. Case terminated on 11/1/2017.

(Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4)

(Entered: 11/02/2017)

PACER Service Center

Transaction Receipt

09/13/2020 10:54:18

PACER Login:

CRClearinghouse:25 Client

63377:0

Code:

Description: Docket Report

Search Criteria:

Billable Pages:

5

Cost:

Yu
4:16-cv03745
0.50

 
 Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

LUCAS LOMAS,

)

CARLOS EALGIN,

)

On behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

)

Defendant.

)

____________________________________)

Case No. (Class Action)

CLASS ACTION COMPLAINT Harris County fails to comply with the Fourth Amendment’s requirement that anyone arrested without a warrant be released unless a neutral magistrate makes a prompt finding of probable cause supported by an oath or affirmation. In Harris County, probable cause findings for warrantless arrestees are never based on facts supported by oath or affirmation. Because of Harris County’s policies and practices, thousands of people every year are kept in jail cells for days, weeks, and months in violation of the Fourth and Fourteenth Amendments and Texas law. Plaintiffs seek declaratory and injunctive relief.

1

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 2 of 18
NATURE OF THE ACTION1 1. An average of about 1,400 people are arrested without a warrant every week in Harris County. About half of them will still be in jail when their cases are resolved by dismissal, conviction, or acquittal. Many others will spend several days or more in jail until they are able to raise enough money to purchase their release. 2. Harris County is required to release every single one of these detainees unless a neutral magistrate makes a prompt finding of probable cause supported by “oath or affirmation.” U.S. Const. amend. IV; Gerstein v. Pugh, 420 U.S. 103, 125 (1975). In Harris County, all probable cause determinations for warrantless arrestees are based on facts alleged in unsworn statements. The County, as a matter of uniform policy and practice, detains people despite the fact that County officials know that a probable cause finding supported by an oath or affirmation never happens. These post-arrest policies and practices result in the unconstitutional pretrial jailing of thousands of people every month. 3. Plaintiffs, on behalf of themselves and all others similarly situated, seek injunctive and declaratory relief from Harris County’s policy and practice of failing to comply with the fundamental constitutional requirement that all warrantless arrestees be released unless a neutral magistrate makes a prompt finding of probable cause supported by oath or affirmation.
JURISDICTION AND VENUE 4. This is a civil rights action arising under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
1Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they had personal involvement and on information and belief as to all other matters.
2

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 3 of 18
5. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. 6. This Court has supplemental jurisdiction over the state law cause of action asserted in this Complaint pursuant to 28 U.S.C. § 1367 because the state law claim forms part of the same case or controversy as the federal law claim.
PARTIES 7. Lucas Lomas is 26 years old. He was arrested without a warrant on December 24, 2016, for a felony offense and is currently in jail. He represents himself and a Class of similarly situated people subjected to Defendant’s unlawful post-arrest practices. 8. Carlos Ealgin is 27 years old. He was arrested without a warrant on December 26, 2016, for a misdemeanor offense and is currently in jail. He represents himself and a Class of similarly situated people subjected to Defendant’s unlawful post-arrest practices. 9. Defendant Harris County is a municipal corporation organized under the laws of the State of Texas. Harris County has a policy and practice of failing to comply with the constitutional requirement to provide warrantless arrestees in its custody a prompt, neutral determination of probable cause supported by oath or affirmation.
HARRIS COUNTY’S POLICIES AND PRACTICES 10. Approximately 75,000 people are arrested without a warrant in Harris County every year. 11. Harris County itself is responsible for about 25% of all arrests that take place within the County. The City of Houston is responsible for nearly another 50% of arrests. The remaining arrests are made by more than 100 other agencies. 12. Individuals who are arrested by the Harris County Sheriff’s Office are typically taken directly to the Harris County jail. Those arrested by other agencies are taken initially to field stations run by other arresting agencies.
3

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 4 of 18
13. Within hours of each warrantless arrest, the arresting officer calls a hotline staffed around-the-clock by the District Attorney’s Office. The arresting officer describes the circumstances leading to arrest, and the Assistant District Attorney on duty decides what, if any, charges are supported by those circumstances. The statements an officer makes to the ADA on duty are not sworn.
14. If the ADA on duty believes that the officer’s factual recitation supports a charge, the ADA “accepts” the charges.2 The ADA tells the arresting officer the financial condition of release required by the schedule employed by Harris County.
15. After the ADA accepts the charges, the police officer types a summary of the facts and a description of the accepted charges into a District Attorney’s Intake Management System (“DIMS”) terminal. Most police officers in Harris County have access to such a terminal in their squad cars; all officers can access them at stationhouses. The DIMS summary is not sworn.
16. Arrestees who can pay the predetermined sum required for release (and who are not otherwise ineligible for release) are released after basic processing at the arresting agency’s stationhouse. In these cases, a probable cause determination will be made, if at all, at a subsequent court appearance. Arrestees who cannot afford to pay the financial condition required for their release, or who are ineligible for release, are transferred to the Harris County Jail for booking.3
2 At some point after charges are accepted, a criminal Complaint containing a boilerplate, bare bones recitation of the charges is generated. The Complaint simply recites that officials believe a particular crime to have been committed but does not contain a description of the facts leading to arrest. Therefore, it could not constitutionally serve as the basis for a finding of probable cause by a judicial officer that the elements of a crime have been met. And, in practice, it does not serve as the basis for Hearing Officers’ findings of probable cause because Hearing Officers base probable cause determinations on the purported facts contained in the unsworn DIMS summary. 3 If the Harris County Sheriff’s Office made the arrest, no transfer is necessary before the booking process begins because Sheriff’s Office arrestees are typically taken directly to the jail upon arrest.
4

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 5 of 18
17. As a matter of policy and practice, individuals arrested without a warrant within Harris County routinely do not receive probable cause determinations until they are transferred from the custody of the arresting authority to Harris County custody.
18. Harris County accepts into its custody all warrantless arrestees who are arrested by other agencies and who fail to pay the monetary sum required for their release pursuant to the County’s predetermined bail schedule.
19. Many warrantless arrestees who are arrested by agencies other than Harris County are held for two or three days, or more, before being transferred to the Harris County Jail.
20. In July and August 2016, for example, many individuals arrested by the City of Houston without a warrant were kept in the Houston Jail longer than 48 hours without a neutral determination of probable cause. Booking records for 2016 show that, in these two months alone, Houston held hundreds of inmates in its jail for longer than three days before transferring them to Harris County. For example, one person arrested on July 25 did not receive a probable cause determination until July 31 (more than 144 hours after arrest); another person, arrested on July 23, did not receive a probable cause determination until July 30 (more than 168 hours after arrest); and at least 35 other people in the months of July and August waited more than four days (96 hours) between arrest and a probable cause determination.
21. As a matter of policy and practice, Harris County accepts into its custody, and keeps in its custody, warrantless arrestees transferred to the jail from other arresting agencies or arrested by the Sheriff’s Department, without regard for how much time has passed since the individual was arrested and even though Harris County knows that no probable cause determination has been made.
5

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 6 of 18
22. As a matter of policy and practice, Harris County continues to detain warrantless arrestees—whether arrested by Harris County itself or another agency—for whom there has been no probable cause determination within a reasonable period of time, which is 48 hours at the longest.
23. Warrantless arrestees in Harris County custody appear from the jail by videolink before a magistrate, known as a Harris County Hearing Officer, who presides over the hearings from a courtroom in the Harris County courthouse.
24. These hearings are referred to locally as “magistrations,” “Article 15.17 hearings,” or “probable cause hearings.”
25. At any point during the jail’s booking process, before or after the probable cause hearing, an arrestee can pay a predetermined money bail and be released. The Harris County Sheriff’s Department, through its jail personnel, assembles groups of roughly 20 to 45 arrestees throughout the day, every day, for purposes of attending these hearings by videolink.
26. The County’s employees and agents know the time and date of arrest for every warrantless arrestee, regardless of the arresting authority. Such information is recorded and stored in computer systems readily available to them. County employees and agents know how long a warrantless arrestee has been in custody.
27. Like all arresting agencies within the County, the Harris County Sheriff’s Department, when it makes arrests, uses the DA’s hotline and the DIMS system. The County and its employees and agents know that the statements that ADAs present to Hearing Officers are not sworn. The County and its employees, officers, and agents also have access to jail and court records, which do not contain a sworn statement of the factual basis for probable cause findings.
6

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 7 of 18
28. The County and its employees and agents know that, in almost every case, no probable cause determination is made by a neutral magistrate prior to the video hearings for which the Sheriff’s Department assembles groups of arrestees.
29. At the hearings, the Hearing Officer calls an individual’s name and reads the charge. That individual gets up and stands in the middle of a red square on the floor of the room in the jail. An assistant district attorney, who is in the courtroom with the Hearing Officer, reads from the DIMS report and represents that the statement of facts in the report are the facts that led to the arrest.
30. Harris County does not provide defense attorneys at this hearing. 31. County employees and agents, including Sheriff’s deputies and employees of Pretrial Services, are present throughout the hearings. They know that the information the ADA reads is from the DIMS system. They know that no oaths are sworn (nor affirmations made) at the hearings. 32. The statements the ADA reads, and on the basis of which Hearing Officers find probable cause in almost every case, are not supported by oath or affirmation. In other words, they are not signed under penalty of perjury. They are not sworn. 33. On the basis of the unsworn factual statements read by the ADA, the Hearing Officer decides whether there was probable cause for arrest. Hearing Officers find probable cause in almost every case. 34. Every year, Harris County permits unsworn statements to provide the basis for findings of probable cause for further detention in tens of thousands of cases involving warrantless arrestees.
7

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 8 of 18
35. Sometimes a Hearing Officer concludes that there is not enough information to determine whether probable cause existed for the arrest. In these cases, the Hearing Officer tells the Sheriff’s Department to continue detaining the person, and urges the ADA to contact the arresting officer to find out more about the circumstances leading to the arrest.
36. As a matter of policy and practice, the Sheriff’s Department continues to detain warrantless arrestees in these circumstances while the ADA investigates further. For each of these warrantless arrestees, the Sheriff’s Department knows that there has been no finding of probable cause to support continued detention. The Sheriff’s Department also knows that the sole purpose of further detention is to allow the ADA time to investigate. If, during this process, an arrestee can pay the predetermined scheduled bail and is otherwise eligible for release, he will be released.
37. As a matter of policy and practice, the Sheriff’s Department brings arrestees who are not released to a subsequent probable cause hearing docket. At the subsequent docket, when the arrestee’s name is called, the ADA reports the results of her investigation to the Hearing Officer, again using unsworn statements, and the Hearing Officer decides whether probable cause existed for the arrest.
38. The process of setting bail and finding probable cause is a rote exercise; the hearings usually last approximately one minute.
39. If a Hearing Officer makes a finding of probable cause, Harris County will continue the pretrial detention of the warrantless arrestee despite the fact that Harris County officials know that the finding was not supported by sworn statements.
40. The vast majority of warrantless arrestees are held incommunicado from the moment they are taken into Harris County custody until sometime after their magistration hearing.
8

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 9 of 18
41. Following every arrest, an arrestee’s case information and related documents become publicly available on the District Court Clerk’s website. Once the arrestee is in Harris County custody, the arrestee’s online case records will indicate that fact. The arrestee’s specific location will be shown as the “inmate processing center” at 1201 Commerce Street.
42. While the individual is in processing, she is completely unavailable for an attorney (or other) visit and cannot be contacted.4 Jail officials state that individuals who are in processing are actually located in the basement of one of four jail buildings, and the only way to find a specific person is for a guard to walk through the cell blocks and call the person’s name.
43. However, jail officials also state that, if a person who is in processing is able to pay the scheduled money bail, she will be found and released. Thus, during this period of time, poor arrestees are held without any ability to contact the outside world, but an individual who has money can purchase her release from jail.
44. Any arrestee who was not assigned to a housing unit before her probable cause hearing will remain inaccessible to attorneys and everyone else outside the jail after the hearing until the jail assigns the individual to a housing unit.
45. It is only after being assigned to a housing unit that an arrestee can be contacted by anyone outside the jail and will be scheduled for a hearing in a County Court at Law.
46. A sheriff’s deputy at 1201 Commerce Street was asked to produce for attorney visits several individuals who had attended their probable cause hearings within the previous 24 hours. After looking for the men for an hour, the deputy stated that the men could not be seen, even by an attorney, until after they had been assigned to a housing unit in the jail, which had not
4 The Sheriff’s own website states that inmates are not available for visits while they are in the processing center. See http://www.harriscountyso.org/JailInfo/inmate_info_inmate_faqs.aspx
9

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 10 of 18
yet happened. He said that the individuals were all in the basements of one of four buildings, but he did not know which one. The deputy provided a list of the four facilities in which the arrestees might be located (1200 Baker Street Jail; 701 North San Jacinto; 711 North San Jacinto Street; 1307 Baker Street).
47. Shortly after that conversation, a sheriff’s deputy at the jail building at 1200 Baker Street confirmed that the same men could not be contacted until after they had been assigned to a housing unit.
48. The deputies stated that it would take 24 to 36 hours for that to happen, during which time no one would be able to reach these men, including any attorney. The sheriff’s deputy said that they could not be found for the purpose of an attorney visit, but they would be found and released if money bond was posted.
49. As a matter of policy and practice, warrantless arrestees are released from pretrial detention only when they either pay their bail amounts or resolve their cases.
Lucas Lomas 50. Lucas Lomas is 26 years old. He was arrested without a warrant on December 24, 2016, for theft, a felony offense. 51. On December 25, 2016, a Hearing Officer found probable cause in his case and imposed a secured financial condition of release of $15,000. The Hearing Officer’s finding of probable cause was made on the basis of unsworn statements. 52. Mr. Lomas is currently in jail. He cannot afford to pay the secured financial condition of release. If he could pay the amount required, he would be released. 53. Mr. Lomas is scheduled to see a Criminal Court at Law Judge for the first time on January 3, 2017.
10

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 11 of 18
Carlos Ealgin 54. Carlos Ealgin is 27 years old. He was arrested without a warrant on December 26, 2016, for possession of marijuana under two ounces, which is a misdemeanor offense. 55. Later on December 26, 2016, a Hearing Officer found probable cause in his case and imposed a secured financial condition of release of $15,000. The Hearing Officer’s finding of probable cause was made on the basis of unsworn statements. 56. Mr. Ealgin is currently in jail. He cannot afford to pay the secured financial condition required for his release. If he could pay the amount required, he would be released. 57. Mr. Ealgin is scheduled to see a County Criminal Court at Law Judge for the first time on January 3, 2017.
Class Action Allegations 58. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. 59. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class members can challenge the Defendant’s unlawful policy and practice of failing to provide warrantless arrestees with prompt determinations of probable cause supported by an oath or affirmation. 60. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(1)–(4) and Rule 23(b)(2), of the Federal Rules of Civil Procedure. 61. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 62. The Plaintiffs propose the following Class and subclass:
11

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 12 of 18
a. A Class seeking injunctive and declaratory relief: All warrantless arrestees who are currently detained, or will be detained, by Harris County and who have not been provided, or will not be provided, a prompt, neutral determination of probable cause supported by oath or affirmation.
i. A Subclass seeking injunctive and declaratory relief: All warrantless misdemeanor arrestees who are currently detained, or will be detained, by Harris County and who have not been provided, or will not be provided, a neutral determination of probable cause supported by oath or affirmation within 24 hours of arrest.5
Numerosity. Fed. R. Civ. P. 23(a)(1)
63. The individuals in the class are so numerous that joinder of all members would be
impracticable.
64. About 75,000 people are arrested without a warrant in Harris County every year.
Only 22% of those people are released on bond prior to booking into the Harris County jail,
according to publicly available data. The rest are detained by Harris County. 48.2% of those
detainees remain in Harris County custody through the disposition of their cases (or for at least
one month of pretrial detention, if their cases are not resolved and they are not released within one month) because they are unable to post a bond.6 None was provided a prompt determination of
probable cause supported by oath or affirmation. The number of current and future arrestees
subject to this policy will be well into the tens of thousands. The Class easily satisfies the
numerosity requirement.
5 Absent extraordinary circumstances not present in this case, detention after a warrantless arrest without a neutral determination of probable cause is presumptively unreasonable beyond 48 hours. Cty. of Riverside v. McLaughlin, 500 U.S. 44, 45 (1991). Moreover, the facts and circumstances of a particular jurisdiction can render periods of less than 48 hours unreasonable. Plaintiffs propose this initial subclass because Texas law and the Harris County Local Rules of Court require warrantless misdemeanor arrestees to be given a probable cause determination after 24 hours or to be released from custody. Thus, at least in Harris County, detention beyond 24 hours for those arrested for misdemeanor offenses without a warrant is presumptively unreasonable because the local and state governments have already determined that there is no legal or factual need for any further delay. 6 Pretrial detainees who post bond after one month of pretrial detention are not recorded in publicly available statistics.
12

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 13 of 18
65. Because the joinder of thousands of cases is impracticable, this case satisfies the numerosity requirement.
Commonality. Fed. R. Civ. P. 23(a)(2). 66. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The named Plaintiffs seek relief concerning whether the Defendants’ policies, practices, and procedures violate the rights of the Class members and relief mandating that the Defendant change its policies, practices, and procedures so that the constitutional rights of the Class members will be protected in the future. 67. Common legal and factual questions arise from one central scheme: the County’s policy of refusing to release warrantless arrestees even when there has not been a prompt probable cause determination by a neutral magistrate supported by an oath or affirmation. The County has operated this policy in materially the same manner every day. The resolution of these legal and factual issues will determine whether all of the members of each Class are entitled to the relief that they seek. Among the most important, but not the only, common questions of law and fact are:
a. Whether it violates the United States Constitution to detain warrantless arrestees for unreasonable periods of time without a neutral finding of probable cause on the basis of statements supported by oath or affirmation;
b. Whether it violates Texas state law to detain misdemeanor arrestees for more than 24 hours without a neutral determination of probable cause supported by oath or affirmation;
c. Whether the County maintains a policy of detaining warrantless arrestees without a prompt finding of probable cause that is supported by oath or affirmation. Typicality. Fed. R. Civ. P. 23(a)(3).
68. The named Plaintiffs’ claims are typical of the claims of the other Class Members, and the named Plaintiffs have the same interests in this case as all other Class Members. Each
13

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 14 of 18
Named Plaintiff was arrested without a warrant and is currently being detained beyond a reasonable period of time (48 hours at the longest) without a constitutionally adequate probable cause hearing.
69. The answer to whether the County maintains an unlawful policy of detaining warrantless arrestees for an unreasonable period, including for longer than 48 hours, in the absence of a judicial determination of probable cause supported by oath or affirmation will determine the claims of the named Plaintiffs and every other Class Member.
70. If the named Plaintiffs succeed in their claims that the County’s policies and practices concerning warrantless arrestees violate their rights, that ruling will likewise benefit every other member of the Class.
Adequacy. Fed. R. Civ. P. 23(a)(4). 71. The named Plaintiffs are adequate representatives of the Class because their interest in the vindication of the legal claims that they raise is entirely aligned with the interests of the other Class Members, each of whom has the same basic constitutional and state-law claims. The named Plaintiffs are members of the Class, and there are no known conflicts of interest among the members of the Class, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendant’s policy. 72. Plaintiffs are represented by Civil Rights Corps and the Texas Fair Defense Project, whose attorneys have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendant’s scheme and the relevant constitutional and statutory law. Counsel from Civil Rights Corps has been lead counsel in well over a dozen major federal class actions challenging the constitutionality of post-arrest systems in Alabama, Georgia, Illinois, Louisiana, Mississippi, Missouri, Tennessee, Texas, and other states.
14

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 15 of 18
73. Class counsel have conducted an investigation into Harris County’s policy of detaining warrantless arrestees without a prompt, neutral determination of probable cause supported by oath or affirmation. This investigation has included interviews with witnesses, municipal officials and employees, inmates, prosecutors and defense attorneys practicing in local courts, community members, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
74. Class counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options available to municipalities that seek to comply with the Constitution.
75. As a result, counsel have devoted significant time and resources to becoming intimately familiar with the County’s scheme and with the relevant state and federal laws and procedures that can and should govern it. The interests of the Class Members will be fairly and adequately protected by the Plaintiffs and their attorneys.
Rule 23(b)(2) 76. Class certification is appropriate because the Defendants, through the policies, practices, and procedures that make up its post-arrest process for warrantless arrestees, have acted in the same unconstitutional manner with respect to all Class Members. The Defendant has a policy and practice of detaining people beyond a reasonable period of time (48 hours at the longest) even though Defendant knows that there has been no probable cause finding supported by an oath or affirmation, as is necessary in order to continue detention after a warrantless arrest. 77. The Class therefore seeks declaratory and injunctive relief that will prevent the Defendants from detaining arrestees beyond a reasonable period of time — but in any event no
15

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 16 of 18
longer than 48 hours — without a neutral determination of probable cause supported by oath or affirmation. Because the putative Class challenges the County’s practices as unconstitutional through declaratory and injunctive relief that would apply to every Class Member, Rule 23(b)(2) class certification is appropriate and necessary.
78. Injunctive relief compelling the County to comply with this constitutional right will similarly protect each member of the Class from being subjected to the County’s unlawful policies and practices. A declaration and injunction stating that the County must provide a neutral finding of probable cause supported by oath or affirmation and that the County cannot detain someone beyond a reasonable period of time (48 hours at the longest) without a finding of probable cause supported by oath or affirmation would provide relief to every member of the Class. Therefore, declaratory and injunctive relief with respect to the Rule 23(b)(2) Class as a whole is appropriate.
Claims for Relief Count One: Fourth and Fourteenth Amendments 79. Plaintiffs incorporate by reference the allegations in paragraphs 1-79. 80. After a warrantless arrest, the Fourth Amendment requires a prompt, neutral determination of probable cause “supported by oath or affirmation.” U.S. Const. amend. IV; Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991); Gerstein v. Pugh, 420 U.S. 103 (1975). This constitutional provision is presumptively violated after 48 hours absent extraordinary circumstances, which are not present here. Defendant Harris County violates Plaintiffs’ rights by continuing to keep them in custody after a warrantless arrest without providing a prompt, neutral determination of probable cause supported by an oath or affirmation. Count Two: Defendant Falsely Imprisons Plaintiffs in Violation of Texas law 81. Plaintiffs incorporate by reference the allegations in paragraphs 1–81.
16

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 17 of 18
82. Texas law requires that all misdemeanor arrestees be brought before a magistrate within 24 hours or be released on an affordable bond, and requires that all felony arrestees be brought before a magistrate within 48 hours or be released on an affordable bond. Tex. Code Crim. P. Ann. § 17.033(a)–(b). If the arrestee cannot afford any bond, she must be released on a personal bond immediately. Id. Therefore, any person in Harris County custody after a warrantless arrest for 24 hours on a misdemeanor charge or 48 hours on a felony charge who was otherwise eligible for release but unable to secure release and who was not offered a personal bond is unlawfully detained. Harris County, therefore, falsely imprisons Plaintiffs and Class Members who are detained beyond these time periods.
REQUESTS FOR RELIEF WHEREFORE, the named Plaintiffs, on behalf of themselves and a class of others similarly situated, request that this Court issue the following relief: a. A declaration that Harris County violates Plaintiffs’ rights by detaining them after a
warrantless arrest without a neutral and prompt determination of probable cause based on facts sworn by oath or affirmation. b. An injunction requiring Harris County to ensure that all warrantless arrestees in its custody receive a prompt determination of probable cause by a neutral magistrate based on facts supported by oath or affirmation consistent with Texas and federal law. c. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 18 U.S.C. § 1964, and any other relief this Court deems just and proper.
17

Case 4:16-cv-03745 Document 1 Filed in TXSD on 12/28/16 Page 18 of 18

Dated: December 28, 2016

Respectfully submitted,
/s/ Rebecca Bernhardt
Rebecca Bernhardt (TX Bar No. 24001729) Attorney-in-Charge Susanne Pringle (TX Bar No. 24083686) Texas Fair Defense Project 314 E Highland Mall Blvd, Suite 108 Austin, Texas 78752 (512) 637-5220 rbernhardt@fairdefense.org springle@fairdefense.org
/s/ Elizabeth Rossi
Elizabeth Rossi (Pro hac vice pending) Charlie Gerstein (Pro hac vice pending) Alec Karakatsanis (Pro hac vice pending) Civil Rights Corps 910 17th Street NW, Fifth Floor Washington, DC 20001 (202) 681-2409 elizabeth@civilrightscorps.org charlie@civilrightscorps.org alec@civilrightscorps.org

18

 
 Case 4:16-cv-03745 Document 41-1 Filed on 11/01/17 in TXSD Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

LUCAS LOMAS, and

)

CARLOS EALGIN,

)

On behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

)

Defendant.

)

____________________________________)

Case No. 16-CV-3745 (Class Action)

FINAL CONSENT JUDGMENT Harris County and Plaintiffs have agreed to settle this case. Per the Settlement Agreement attached to this Judgment as Exhibit 1, the District Attorney, in her official capacity, has agreed to change (and has already changed) the process of presenting probable cause statements for warrantless arrests, whereby an officer now swears to the facts being inputted into the District Attorney Intake System (“DIMS”) and, as a result, sworn facts are now presented to judicial officers for determination of probable cause. It is understood by the parties that, by agreeing to settle this case, Harris County is not admitting liability nor is Harris County admitting that the policies and practices complained of in Plaintiffs’ complaint are those of Harris County. Moreover, by agreement of the parties, Harris County has agreed to pay $75,000 in reasonable attorneys’ fees payable to Civil Rights Corps in order to settle this litigation. By paying

Case 4:16-cv-03745 Document 41-1 Filed on 11/01/17 in TXSD Page 2 of 5
attorneys’ fees, Harris County is not admitting that it is liable or that the policies at issue represent those of Harris County.
THEREFORE, it is hereby ORDERED that the parties shall follow the terms set forth in the Settlement Agreement, attached as Exhibit 1. The Court further orders that the Settlement Agreement shall be monitored by an independent monitor for a period of three years from the entry of this Consent Judgment. The monitor shall be responsible for ensuring that the District Attorney has modified the DIMS system in accordance with the above terms. The monitor will notify Plaintiffs’ counsel and the Court of any non-compliance as soon as practicable. Harris County, as the custodian of records, will retain accurate copies (in either paper or electronic form) of all DIMS summaries that are presented to hearing officers for probable cause determinations and copies of all video hearings for at least one year after the probable cause determinations, and Harris County will make such records available to the monitor upon request. The Court retains jurisdiction solely for the purpose of enforcing the terms of the settlement agreement.
SIGNED this ________ day of _____________________, 2017.
___________________________________ UNITED STATES DISTRICT JUDGE

Case 4:16-cv-03745 Document 41-1 Filed on 11/01/17 in TXSD Page 3 of 5

Case 4:16-cv-03745 Document 41-1 Filed on 11/01/17 in TXSD Page 4 of 5

Case 4:16-cv-03745 Document 41-1 Filed on 11/01/17 in TXSD Page 5 of 5