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Ethnic profiling suit against Baltimore County can proceed, judge says

An El Salvadoran living in Maryland can proceed with her civil rights lawsuit alleging a Baltimore County traffic officer pulled her over because she looked to be Latina and subsequently detained her when a federal database erroneously listed her as subject to removal from the United States, a federal judge ruled this week.

Mirna Carrero claims police officer Christopher Farrelly, and by extension Baltimore County, violated her constitutional guarantee of equal protection and right to be free from unreasonable seizures by ethnically profiling her as she was driving home from her job at an Ellicott City restaurant shortly after midnight on Aug. 26, 2014.

The officer and county, which deny the allegations, sought the lawsuit’s dismissal, saying Carrero did not state in her complaint that she is a U.S. citizen or other person within U.S. jurisdiction. They also stated, through counsel, that Carrero lacked standing to bring the lawsuit because she is an undocumented immigrant.

But U.S. District Judge James K. Bredar rejected the dismissal motion Tuesday, ruling that federal civil rights law neither requires plaintiffs to plead explicitly that they are a U.S. citizen — or otherwise within U.S. jurisdiction — nor denies them standing if they are undocumented.

Section 1983 of the 1871 Civil Right Act requires only that the pleading allege that someone “acting under color of state law,” such as a police officer, deprived the plaintiff of “rights, privileges, or immunities secured by the Constitution or laws of the United States,” Bredar wrote in his published memorandum opinion.

“The state defendants attempt to turn the pleading standard on its head, focusing on the absence of magic words instead of the plausibility of the facts alleged,” Bredar added. “Moreover, the state defendants’ argument is directly at odds with the plain language of Section 1983, which provides a cause of action to ‘any citizen of the United States or other person.”

Kevin Docherty, an attorney for Carrero, said Thursday that Carrero’s name “shouldn’t have been in the database in the first place” and Baltimore County should have made clear to its officers that they may not detain immigrants based solely on a suspected violation of civil immigration law.

“The officer should have known better than to detain Ms. Carrero on that basis and the county should have done a better job training him,” added Docherty, of Brown, Goldstein & Levy LLP in Baltimore.

Baltimore County Attorney Michael E. Field, whose office represents the county and Farrelly, was unavailable for comment.

According to Carrero’s complaint, she was near the intersection of Route 40 and Rolling Road in Catonsville when Farrelly moved into the lane behind her, activated his patrol car’s signal lights and instructed her to pull over, which she did. Without stating the reason for the traffic stop, Farrelly asked for Carrero’s driver’s license, which was marked “not acceptable for federal purposes,” a notation given to drivers unable to provide proof of lawful immigration status to the Maryland Motor Vehicle Administration, the complaint stated.

Farrelly returned to his car and searched the National Crime Information Center database, which showed an outstanding administrative warrant of removal but no criminal record. The officer returned to Carrero, who asked why she had been stopped.

Farrelly replied he had stopped her because she had no auto insurance, which was incorrect, according to the complaint. The officer went back to his car and returned 10 minutes later, asking Carrero about her immigration status before detaining her, placing her in his patrol car and driving to the Howard County Detention Center in Jessup, the complaint added.

There they were met by an Immigration and Customs Enforcement agent, who placed Carrero in handcuffs, the complaint stated. Carrero was held at the immigration detention facility in Snow Hill for six weeks before an attorney hired by her husband secured her release, the complaint added.

Carrero sued the officer and county, alleging that her being stopped and detained based on her Latina appearance violated her Fourth Amendment right against unreasonable seizures and 14th Amendment guarantee of equal protection under the law.

She also claims the county, through its police department, failed to train Farrelly regarding prohibitions on ethnic profiling and that local police lack authority to detain someone solely for immigration-enforcement purposes.

The county and Farrelly deny the alleged civil rights violations.

Bredar, in rejecting the motion to dismiss, said Farrelly and the county might now need to be represented by separate counsel due to potentially conflicting defenses.

Specifically, the county may choose to argue its police training was proper and Farrelly’s actions — if proven by Carrero — violated the department’s protocols; Farrelly might say that he acted within the scope of his official duties and thus has qualified immunity from suit, Bredar said.

The judge then ordered the Baltimore County attorney’s office either to drop its representation of both the county and Farrelly or explain why no conflict exists and include affidavits from the county and Farrelly giving their informed consent to the office’s continued dual representation.

The case is Mirna Rubidia Artiga Carrero v. Baltimore County and Christopher Farrelly, No. JKB-16-3939.


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