January 09, 2008
The case that started it all

With all the focus on Chuck Rosenthal and his atrocious email habits and tastes, let's take a moment to consider the lawsuit, which was actually filed against Sheriff Tommy Thomas, that started it all when the first batch of don't-it-seem-so-innocent-now "kiss you behind your right ear" epistles were released. The Chron has a good story on the suit and the events that led to it.

The lawsuit, which U.S. District Judge Kenneth Hoyt said Monday could go to trial next month, was filed by two brothers arrested in January 2002 after one of them photographed Harris County sheriff's deputies executing a drug raid at a neighbor's home.

The brothers -- Erik Adam Ibarra, 27, and Sean Carlos Ibarra, 37 -- say the deputies stormed their home without probable cause, drew their guns, arrested them, seized their cameras and confiscated or destroyed their film.

Both men were eventually cleared of all criminal charges after their cases went to trial. They then sued Harris County, the sheriff's department, Sheriff Tommy Thomas and four deputies involved in their arrests -- Preston Foose, Dan Shattuck, John Palermo and Sgt. Alex Rocha.

A federal jury will consider the Ibarras' claims of wrongful arrests, excessive force and civil rights violations.

"There's no good reason that what happened that day should happen to anybody," Erik Ibarra said.

Thomas has denied in court papers that his officers did anything improper. The sheriff argued his deputies only used force to defend themselves because one of the Ibarras turned to hit and kick a deputy during the confrontation.


Rosenthal and Harris County prosecutor Sally Ring were deposed as witnesses in the civil case because one of the deputies claimed they acted on instructions from the District Attorney's Office when they arrested the Ibarras and destroyed their film, [the Ibarras' attorney Lloyd] Kelley said.

Ring has denied giving the deputies any such orders.

The deputies were never charged with any wrongdoing.

In a deposition taken in November, Rosenthal testified he forwarded a letter from Kelley complaining about the deputies to another prosecutor, Joe Owmby, chief of the district attorney's police integrity unit. After receiving that letter in 2003, Owmby said he investigated the incident, but that effort was hampered, he said, partly because the Ibarras never made an internal affairs complaint.

Kelley, however, said their attempts to file an internal affairs complaint were stonewalled by the sheriff's department.


In his order, Hoyt wrote there was "sufficient evidence" to conclude the deputies may have violated the Ibarras' Fourth Amendment rights to be free from arrest without probable cause.

"The act of taking photographs, in and of itself, is an innocent act protected by the First Amendment of the Constitution," Hoyt wrote.

Hoyt also said there is some evidence that the deputies "deliberately made false statements" to the District Attorney's Office to obtain criminal charges against the Ibarras.

Earlier this year, the 5th Circuit Court of Appeals agreed Foose was not entitled to qualified immunity, which would have protected him from the Ibarras' claims of constitutional rights violations. The higher court dismissed the sheriff's and Shattuck's appeals because of contested facts in the case, so those claims remain against them as well.

But the 5th Circuit partially overruled Hoyt, finding Palermo and Rocha were entitled to qualified immunity. As a result, those claims against them were dismissed, though others remain.

So in addition to Rosenthal's January 31 appearance before Judge Hoyt to explain why some 2000+ emails had been deleted, we may get this civil trial next month, too. I'm thinking that under different circumstances, that court case would have been much lower profile than it likely will be now, something for which Sheriff Thomas can thank Rosenthal. The political fallout from all this could be very extensive. Who knows what else there may be lurking in there? Stay tuned.

Posted by Charles Kuffner on January 09, 2008 to Scandalized!