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Chris T., JD
Chris T., JD, Attorney
Category: Legal
Satisfied Customers: 3702
Experience:  Experienced in both state and federal court.
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I am a Texas Peace Officer, Employed by the City of El Paso.

Resolved Question:

I am a Texas Peace Officer, Employed by the City of El Paso. I have been so employed for 16 years. On April 11, 2013 on my regular day off I got into an argument with my daughter and became emotionally upset. I began drinking, failed to set my alarm clock and did not report to duty at 0430hrs, April 12th 2013. A fellow Police Sergeant came to my door at 0830hrs, and I realized that I failed to report to duty. He told me to take a shower and get ready. I told him the truth, that I had drank late into the evening hours and was in no condition to go to work. He then informed me that he had to notify the Commander. At about 2:00 PM April 12th 2013, I got a knock on my door. I then noticed eight police cars in front of my house. My Commander, Lieutenant, Sergeant, and at least 5 other Officers came to my residence. I invited them into my house since I have nothing to hide. Once inside my Commander told me we are going to look around ok? I answered her questions politely and I said Ok. I was intoxicated, there was an empty vodka bottle on the kitchen cabinet. I told her I had been drinking. The other Officers, began searching my house. They went from room to room opening cabinets, closets, bedrooms, and opening and looking through my prescription bottles. This was embarrassing having junior Officers in my house going through my belongings. This tore me up inside because of the way they conducted themselves. There were no exigent circumstances to conduct a search. I was intoxicated, but I was standing in my living room talking to them in a polite manner. I said OK when they asked me if they could look around however, Texas Penal code clearly states that "effective consent" cannot be given by a person who is intoxicated (Section 1.07, 19 (C). I am a retired soldier US Army Military Police, SFC with 21 years of service who has defended our constitutional rights. I feel that the Chief of Police here in El Paso wants to control his Officers so badly that they are not afforded the same respect and dignity of the average citizen. There was no probable cause to conduct a search of my residence. They could by law search anything within my reach, or pat me down for weapons if they were going to perform an emergency detention due to my intoxication level, which they did not do since I said I would go to the hospital voluntarily.
This search was unreasonable, the scope and intent of which was to try to find something to charge me with. Since I do not violate the law, I had nothing to hide and the unauthorized search by these Officers revealed nothing. My girlfriend arrived at my residence during the search and seen one on the officers carrying one of my rifles from my bedroom. They did not want her inside of the residence and told her to remain outside. My girlfriend clearly seen what they were doing and could not believe the number of Officer present at my residence.
Submitted: 1 year ago.
Category: Legal
Expert:  Chris T., JD replied 1 year ago.

TexLawyer :

Good evening. I'll be assisting you with your question.

TexLawyer :

I'm assuming you have not been charged with a crime, so this is not a criminal case at this point, correct?

Customer:

That is correct.

TexLawyer :

OK. Are you considering bringing a civil suit for money damages against the PD?

Customer:

yes

TexLawyer :

In that case, you would be looking at a 1983 action (42 USC 1983; http://www.law.cornell.edu/uscode/text/42/1983)

TexLawyer :

You can prevail in a 1983 action if you are able to prove that the police intentionally violated your civil rights by conducting this search. There are a few things to keep in mind regarding a 1983 action:

Customer:

What could I expect in civil damages?

TexLawyer :

First off, as you are most likely aware, the police have qualified immunity from lawsuits.

TexLawyer :

That is a difficult question to answer, because it largely depends on how it impacted you and what evidence of that you could produce. For example, if it impacted your prospects of moving up within your department or finding a job with another department, that would increase your damages. Also, the mental anguish associated with the incident has some value, too. Without meeting you or having a mental health expert's opinion, it is difficult for me to say exactly what that's worth.

TexLawyer :

However, I can say that I would not expect a large settlement (e.g. over $50,000) given the fact that you were not fired or any adverse action taken against you, other than the embarrassment. Courts (in Texas especially) don't place a large dollar value on embarrassment.

TexLawyer :

Keep in mind that police are immune from suit for the performance of their jobs unless willful, unreasonable conduct is demonstrated. Mere negligence, the failure to exercise due care, is not enough to create liability.

Customer:

I was supposed to get promoted to Sergeant on April 15th, 2013, I have to go see the Chief on Monday. I am waiting to see what he says.

TexLawyer :

That would impact the value of your lawsuit. Of course, they may be able to come back and say you weren't promoted because you didn't show up for work because of alcohol abuse.

TexLawyer :

In all honesty, 1983 actions are difficult to win, but you may have the beginnings of a winnable case. At the very least, it bears further investigation.

Customer:

Yes, I understand, but the search was still a violation of my rights.

TexLawyer :

It definitely was, but the question is whether it was willful, as required for a 1983 action. Moreover, you have the burden of proving that it was willful.

Customer:

I am required to play by the rules in dealing with other citizens....

TexLawyer :

Yes, but most of the time if you don't, you aren't subject to lawsuit. The remedy from the court is usually suppression of whatever evidence was obtained. 1983 actions are typically seen only in extraordinary situations. Again, you have the makings of one here, but it all depends on what you are able to prove.

Customer:

Thank you, XXXXX XXXXX wait to see what the Chief says on Monday.

TexLawyer :

Glad to help.

TexLawyer :

If I can't do anything else for you, please remember to "rate" my answer. Good luck!

TexLawyer :

Also, if you have any questions in the future, you can direct them to me by including "this question is for TexLawyer" in the title.

Chris T., JD, Attorney
Category: Legal
Satisfied Customers: 3702
Experience: Experienced in both state and federal court.
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