ACLU of North Carolina Files “Friend of the Court” Brief in Case Where Police Shot Hispanic Homeowner After Search Based on Racial Profiling (2/5/2008)
FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org
RALEIGH
– The American Civil Liberties
Union of North Carolina Legal Foundation (ACLU-NCLF) filed an amicus (“friend of
the court”) brief last week in the Fourth Circuit Court of Appeals, in a case
where police officers admitted under oath that while trying to locate a man
named Rudelfo Gonzales who had escaped from his probation officers, Clayton
police officers searched the property surrounding the home of Manuel Peña, an
Hispanic man, in part because he happened to be Hispanic.
In
Peña v. Porter, et al., Plaintiff Manuel Peña alleges that he was shot by
Clayton, North
Carolina police officers who targeted his property for a
search and ultimately employed excessive force, as a result of the officers’
discriminatory beliefs about Hispanics.
Neither Manuel Peña, nor anyone in his family, knew Rudelfo
Gonzales. Additionally, Gonzales
had not fled in the direction of Mr. Peña’s street or home. Officers in this case have admitted
under oath that they targeted Mr. Peña’s property in part based on an assumption
that people who are Hispanic are more likely to cover for each other, and more
likely to provide shelter to fugitives who are Hispanic:
Sgt.
Jeffrey Porter:
·
“It’s been my experience in dealing with the Hispanic
community that they tend to help one another more so than what Americans
do. Him, being Hispanic, could have
possibly ran over there, whether he knew somebody, or just hoping to find
somebody that would give him shelter or aid him as far as cutting off the
handcuffs.”
·
“If he was looking for shelter, he probably, possibly,
could have been looking for shelter from another Hispanic family, somebody that
would’ve rendered aid to him.”
·
Q: “One of the
reasons that you went to the area of the Pena property was because you knew they
were Hispanic?” A: “One of the reasons, yes.”
Officer
James Barbour:
“Hector
[Mr. Peña’s son who lived on the Peña property] himself being Hispanic, it was
possible that the Hispanic was hiding at this other Hispanic’s house.”
When
trying to get Mr. Peña to come to the door, Barbour admits to saying, “Senor, I
need to speak with you,” and then adding, “Mucho panucho” [which means “a lot of
pussy,” or “big pussy,” or “a lot of vagina”]. Barbour admitted in his deposition that
he uttered the slang comment mentioned above to Mr. Peña “in an attempt to bond
with Plaintiff and get him to come to the door.” Barbour further testified: “It’s a male thing that I have used and
other officers have used, and just other – some of the other Hispanics in
general, that they use it to bond with one another.” Barbour suggested in his deposition that
he would not have used the English translation on a Caucasian person because he
“would probably get a different response.”
Mr.
Peña’s lawsuit alleges that on February 2, 2004, at around 11:15 p.m., Clayton
police officers entered onto his property based in part on the racially-based
assumption that as an Hispanic man, Mr. Peña was likely to be hiding the
Hispanic man whom they were seeking, Rudelfo Gonzales. Officers peered into Mr. Peña’s window
and saw that he was asleep. They
tapped on the door and window of Mr. Peña’s camper, but he did not hear
them. However, their presence on
his property as they searched around his camper roused the approximately 80
chickens in his chicken coops, and their squawking and the barking of a nearby
dog woke him up. Fearing that an
animal was getting into his chicken coop, Mr. Peña grabbed his rifle and opened
the door. Mr. Peña alleges that
before he even knew what happened, he was immediately shot by the officers. Mr. Peña never said anything to the
officers and never fired his rifle.
He had not even expected to see police on his property when he opened the
door; he expected that he would simply have to chase an animal away from his
chickens, which is why he grabbed his rifle. Mr. Peña is a lawful permanent resident
of the United
States.
In
August, 2007, Judge Earl Britt of the Eastern District of North Carolina ruled
that a jury should get a chance to decide whether the search of Mr. Peña’s
property was racially motivated.
However, the Court ruled that Mr. Peña was not entitled to a jury trial
on the question of whether the officers’ decision to shoot Mr. Peña was also
racially motivated. The ACLU-NCLF
has argued in its brief that both issues should be decided by a jury.
The
following statement may be attributed to Katherine Lewis Parker, Legal Director
of the ACLU of North Carolina Legal Foundation:
The case
before this Court did not arise in a vacuum. As the immigration debate rages
throughout the country, and particularly in North Carolina, with its high rate
of Hispanic immigration, disturbing trends are developing with regard to racial
profiling of the Hispanic community – against not only undocumented immigrants,
but also against Hispanics who are American citizens, documented non-immigrants,
and lawful permanent residents like Mr. Peña. The fact that Mr. Peña was shot in his
own home by police who by their own admission were on his property as a result
of sweeping racial assumptions about Hispanics simply serves to illustrate the
terrible consequences of the increasingly toxic climate in which Hispanics in
America – documented and undocumented – are beginning to find themselves. A North Carolina jury should get a
chance to decide whether the actions of these officers were racially motivated,
thereby violating the constitutional rights of this individual, who was simply
minding his own business on his own land.
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