Settlement Reached in Lawsuit Alleging Racial Profiling by Border Patrol

HAVRE, Mont. (NMB) – Two women that were questioned by a U.S. Border Patrol Agent in Havre in May 2018 after speaking Spanish have reached a monetary settlement with Customs and Border Patrol.

Ana Suda and Martha Hernandez alleged that Agent Paul O’Neill detained them for 40 minutes without reasonable suspicion or probable cause after he heard them speaking Spanish at Town Pump, in violation of the Fourth and Fifth Amendments of the U.S. Constitution.

The case gained national attention after a video that Suda took during the incident was published, with the Agent saying that speaking Spanish “is very unheard of up here.”

The case was initially filed in February 2019 in U.S. District Court in Great Falls, with the American Civil Liberties Union (ACLU) among those representing the plaintiffs.

The ACLU says that materials uncovered during discovery, including text messages, prove that there is, “systemic racism” among the Border Patrol. It was in the middle of this discovery process that a settlement was reached

“Many of the documents and videos that were produced in the discovery turned out to be incredibly damaging to the Government,” says ACLU Attorney Alex Rate. “We had videotaped interviews with CBP Agents and supervisors in which they talked about the ways that they go about racially profiling individuals, using Spanish language as a reason to pull people aside or detain people, assumptions about who is or is not in this country legally. So as a result of these damaging documents, the Government realized that they needed to figure out a way to settle the case before taking it to trial.”

Although the Plaintiffs were successful in obtaining monetary relief, they were unable to get the injunctive relief they had sought, which would have included an order that CBP cannot use language as a reason to question people.

“(But) we believe as a result of the publicity associated with the settlement in this litigation, that CBP will be revisiting their policies and practices,” Rate says. “They now have had two cases out of this CBP Sector in which the Government was held accountable for targeting people who were not white. And especially in light of the new administration that’s coming into Washington D.C., we’re hopeful that CBP will be reforming its practices.”

Suda and Hernandez no longer live in Havre, although one often travels to Havre. Rate says they have been persecuted for speaking out.

“Not only were they subjected to public scrutiny during the course of the incident, when they were standing outside of the Town Pump convenient store, but also as a result of filming the incident, standing up for their rights, they were subjected to extraordinary backlash on social media and otherwise.”

In a written statement, U.S. Customs and Border Protection says they are, “committed to the fair, impartial and respectful treatment” of members of the public, and add that the settlement is not an admission of liability or fault.

The complete statement, provided by Regional Press Officer Jason Givens, is below:

“CBP stresses honor and integrity in every aspect of our mission, and the overwhelming majority of CBP employees and officers perform their duties with honor and distinction, working tirelessly every day to keep our country safe. CBP officers and agents are trained to enforce U.S. laws uniformly and fairly and they do not discriminate based on religion, race, ethnicity or sexual orientation.

CBP is committed to the fair, impartial and respectful treatment of all members of the trade and traveling public, and has memorialized its commitment to nondiscrimination in existing policies, including the February 2014 CBP Policy on Nondiscrimination in Law Enforcement Activities and all other Administered Programs.  This policy prohibits the consideration of race or ethnicity in law enforcement, investigation, and screening activities, in all but the most exceptional circumstances. CBP’s Standards of Conduct further highlights CBP’s prohibition on bias-motivated conduct and explicitly requires that ‘Employees will not act or fail to act on an official matter in a manner which improperly takes into consideration an individual’s race, color, age, sexual orientation, religion, sex, national origin, or disability, union membership, or union activities.’

As noted in Paragraph 4 of the settlement agreement it: ‘… is in no way intended to be, and should not be construed as, an admission of liability or fault on the part of the United States, its agents, servants, or employees, and it is specifically denied that they are liable to the plaintiffs.’ ”

Rate says that although the Defendants did not admit fault, the fact that they agreed to a settlement shows that there was wrongdoing.

“The Government would not have been willing to engage in settlement conversations and ultimately settle this case had they not understood that there was a significant problem here. The material facts in this case were never in dispute. From the video in which the CBP Agent admits clearly that the only reason he was pulling our clients aside was because they were speaking Spanish. Those facts were not in dispute, and the Government knew that it had a problem on it’s hands from the very get go.”

CBP would not disclose whether Agent O’Neill still works with the Havre Sector. Rate says it is his understanding that O’Neill no longer works at the Havre Sector.

The monetary value of the settlement has not been publicly disclosed.

This story has been updated with comment from CBP and the ACLU

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