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Mani Kang v. Utah State Department of Public Safety | Complaint

06 June 2000 Published in Litigation Materials

Mani Kang v. Utah State Department of Public Safety

STEPHEN CLARK (4551)
ACLU OF UTAH FOUNDATION
355 North 300 West Suite 1
Salt Lake City, Utah 84103
Telephone: (801) 521-9862

W. ANDREW MCCULLOUGH, LLC (2170)
Attorney for Plaintiff
895 West Center Street
Orem, Utah 84057
Telephone: (801) 222-9635

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

COMPLAINT

(JURY DEMAND)

Civil No. 2:00CV-0506ST

Judge Ted Stewart

MANI KANG, Plaintiff,

vs.

UTAH STATE DEPARTMENT PUBLIC SAFETY; CRAIG DEARDEN, Commissioner of Public Safety; RONALD OSTLER, Director of Training, Utah Highway Patrol; JAMES CURTIS, Trooper, Utah Highway Patrol; and JOHN DOES I-X, Defendants.

COMES NOW the Plaintiff in the above-entitled action and, for cause of action against Defendants, and each of them, alleges as follows:

I. Nature of the Case

1. This is a lawsuit seeking declaratory, injunctive and monetary relief against the Utah State Department of Public Safety (the “DPS”) and Officer James Curtis for an unconstitutional, racially-based stop, detention, seizure and search. The DPS has a policy and practice of targeting certain individuals based principally on their perceived race or ethnicity, pulling them over for frivolous or non-existent moving or equipment violations, and then subjecting them to unlawful detentions and searches. As a consequence, numerous law-abiding citizens, including plaintiff, have been unlawfully stopped, detained and searched, leaving them frightened, intimidated, humiliated and feeling like criminals, when they have done nothing to warrant such treatment. By his complaint in this case, plaintiff seeks judicial redress for violations of his civil rights due to defendants’ policy and practice. He also seeks to reaffirm what everyone in the United States has a right to expect: that people of color may use the public highways without having to suffer the indignities of discriminatory treatment by government officials.

2. In the manner described herein, defendants, acting under color of state law, targeted, stalked and eventually stopped, detained, seized and searched plaintiff, without reasonable suspicion or probable cause that he had engaged in any unlawful conduct. Defendants’ actions were intentional and violated the Fourth and Fourteenth Amendments to the United States Constitution, the right to travel as protected by the Commerce Clause, the Privileges and Immunities Clauses of Article IV, Title VI of the Civil Rights Act of 1964 and its implementing regulations, and 42 U.S.C. §§ 1982, 1983, 1985 and 1986. In addition to seeking compensatory and punitive damages, plaintiff seeks declaratory and injunctive relief requiring defendants to desist from and remedy their illegal race-based practices.

II. Jurisdiction and Venue

3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, and 2201. Declaratory relief is authorized under 28 U.S.C. §§ 2201 and 2202.

4. Venue is proper in the District of Utah, Central Division, pursuant to 28 U.S.C. §§ 125 and 1391(b)(2), as Defendant Utah Department of Public Safety is headquartered there, and a substantial part of the acts giving rise to the claims occurred in this division.

III. Parties

5. Plaintiff Mani S. Kang, 24, is a male of Indian Sikh descent. He likes to write – he wrote an unpublished history of the Sikh people and their persecutions – and to take photographs. At the time of this occurrence, he was 23 years old. He had finished college the year before, and a couple of weeks before this occurrence he had traveled to Los Angeles to visit friends and relatives and to explore the possibility of moving there.

6. Defendant DPS, headquartered in Salt Lake City, Utah, is in charge of patrolling Utah state highways through its Highway Patrol Division. DPS receives federal funds for drug interdiction through the Department of Justice’s Drug Control and System Improvement Grant Program, pursuant to 42 U.S.C. § 3751. On information and belief, DPS receives funds through other federal programs. As a recipient of federal funds, DPS is required to conduct its activities in a racially non-discriminatory manner, pursuant to Title VI of the Civil Rights Act of 1964 and its implementing regulations, including 28 C.F.R. § 42.1.1 et seq.

7. Defendant Craig Dearden serves as the Utah Commissioner of Public Safety, responsible for, among other things, the control, supervision, operation and administration of the DPS, and for observing, administering and enforcing the provisions of all laws regulating the operation of vehicles or the use of the Utah highways. Defendant Dearden is further responsible for the appointment and training of deputies, subordinates, officers, investigators, and other employees as may be necessary to implement the provisions of the law. Defendant Dearden is sued in his official capacity.

8. Defendant Ronald Ostler serves as Director of Training for the Highway Patrol Division. Defendant Ostler is responsible for, among other things, training of Utah Highway Patrol officers. Defendant Ostler is sued in his official capacity.

9. Defendant James E. Curtis, sued here in both his individual and official capacities, is a white male and resident of Utah who, at all times pertinent to this action, has been employed by the Utah Department of Public Safety, in the Highway Patrol Division, as a Utah State Trooper. Trooper Curtis conducted the stop, detention and search of Plaintiff. All actions taken by Trooper Curtis as described in this Complaint were taken under color of state law.

10. Defendant John Doe I, sued here in both his individual and official capacities, also participated in the detention and search of plaintiff. He is also a white male resident of Utah, who, at all times pertinent to this action, was employed by the Utah Department of Public Safety, in the Highway Patrol Division, as a Utah State Trooper. All actions taken by this Trooper as described in this Complaint taken under color of state law.

IV. Statement of Facts

11. On or about May 18, 1999, Mr. Kang was driving his 1990 Chrysler LeBaron from Northern Arizona to Southern Utah en route from visiting friends and relatives in Southern California to his home in Arkansas. Mr. Kang’s destination that particular day was Newspaper Rock and, eventually, Moab. He planned to photograph and enjoy the area’s natural wonders.

12. Shortly after crossing the Arizona-Utah line, driving North on Highway 191, Mr. Kang noticed a Utah Highway Patrol cruiser coming toward him in the opposite direction. As the cruiser passed, Mr. Kang saw the trooper driving the cruiser stare at him. He presently saw a flash in his rear-view mirror and realized that the trooper had turned around and was rapidly approaching him. Mr. Kang had been driving within the speed limit and observing all other traffic laws, and continued to do so. Nevertheless, the cruiser pulled to within a few car lengths and began to tail him, but did not attempt to pull him over or pass him; instead, the trooper simply followed him. Kang began to feel uncomfortable and wondered if something was amiss.

13. Mr. Kang’s license and registration were current. He knew he had not committed any speed or traffic violations. He was not aware of any problems with his vehicle. He assumed the trooper would take a few moments to verify this and then get back to his business. Instead, the trooper continued to follow him for several minutes, and Mr. Kang soon got the feeling he was being tailed or stalked.

14. Because of his growing unease caused by the trooper’s behavior, exacerbated by the remoteness and isolation of the area where he was driving, Mr. Kang took the first opportunity to stop at a gas station and convenience store south of Blanding. The trooper also stopped, went into the store, and milled around while Mr. Kang refueled and entered the convenience store to pay.

15. When Mr. Kang went into the store, the officer paid for a drink and quickly left. Mr. Kang paid for his gasoline, left the store, got into his care and saw the trooper still waiting. Mr. Kang went back into the store and bought some milk. As Mr. Kang stood at the counter to pay for his milk, he noticed the trooper leave, but not before approaching Mr. Kang’s car. The clerk remarked to him: "I just thought I should warn you about something. That Patrolman’s after you. He was checking out your car when you were in here, and now he”ll be waiting for you somewhere up the road. He does this all the time. Anyone that doesn”t seem from around here, he goes after . . . especially if they”re persons of color."

16. Shaken and confused as to why a law enforcement officer would “go after” persons of color like him, Mr. Kang returned to his vehicle and resumed his journey, proceeding North toward Moab. When he reached the town of Blanding, he noticed a Highway Patrol cruiser stopped at an intersection, and he thought it was the same one that had followed him earlier. He stopped in Blanding to ask directions and to gather himself a bit. When he returned to the highway he did not see the cruiser, so he told himself the officer, not having observed anything illegal, had finally gone on his way. Some time after returning to Highway 191 en route to Moab, however, Mr. Kang again noticed a highway patrol cruiser behind him, and then he saw the flashing lights. He pulled over and stopped. It was about 5:20 p.m. Through the sideview and rearview mirrors, plaintiff noticed the trooper approaching, and he realized it was the trooper he had earlier observed tailing him and observing him at the gas station – now known to be defendant Curtis. Mr. Kang asked why he had been stopped. Curtis told him it was because he was traveling in the left lane. Curtis then proceeded to ask Mr. Kang for his driver’s license and registration, and where he had come from, where he was going, his reasons for traveling in this area, his ownership of the car, and other questions.

17. Defendant Curtis eventually took Mr. Kang’s license and returned to his highway patrol car. While Mr. Kang sat in his car, another officer (John Doe I) arrived and joined Curtis in his vehicle, where they appeared to converse for about 5 additional minutes.

18. When Curtis returned to Mr. Kang’s car, he told Mr. Kang he is required to travel in the right lane. He then handed Mr. Kang his driver’s license and registration along with a warning ticket and very quickly, almost under his breath, said, “You’re free to go,” but then immediately proceeded to ask Mr. Kang if he would mind if the trooper asked him a few questions. Mr. Kang did not know he did not have to answer Curtis’ questions, or that this was part of defendants’ policy and practice of subjecting people of color to unwarranted searches, so he complied. Curtis proceeded to ask Mr. Kang several additional questions as to whether he was carrying anything illegal or had marijuana, cocaine, or other drugs or weapons in the car. Mr. Kang said no and explained that his religious principles forbid the use of alcohol or drugs. He asked Mr. Kang to exit his vehicle, and whether he had any weapons. Mr. Kang had none, but he was frisked and ordered to stand away from the car. Curtis took his car keys and searched the car thoroughly. While Curtis was thus engaged, the other officer asked Mr. Kang more questions about his background and his trip.

19. Upon finishing his search, Curtis stated that there are a lot of drugs in the area, and some people are honest with the police and some are not. He sent Mr. Kang on his way.

V. Defendants’ Discriminatory Policies and Practices

20. In recent years, the practice of targeting motorists based on their perceived race or ethnicity has increased dramatically nationwide, largely due to federally funded drug and weapons interdiction programs operated by state and local law enforcement agencies, including the DPS.

21. Specifically, the DPS participates in a federally funded program sponsored by the United States Drug Enforcement Agency known as Operation Pipeline. The purpose of Operation Pipeline ostensibly is to remove drugs and weapons from the nation’s highways. Operation Pipeline encourages officers to rely on minor or non-existent traffic violations that can be used as an excuse or “pretext” to stop motorists that seem “suspicious.” Once a stop has been made, officers engage in persistent questioning unrelated to the alleged underlying violation. Officers are trained to seek consent to search – which most unwary motorists give – in an effort to obviate the need for probable cause. They do so following what they call the “’Free to go’ speech.” Like Mr. Kang, most motorists do not know that once they have their driver’s license and registration back they are in fact free to go and they have the right not to answer additional questions and to refuse consent to a search. Often, after the detention and search, no complaint is made, simply because the innocent motorists involved are so relieved that their encounter with the police has ended without violence or arrest that they go their way. Such was the case with Mr. Kang, until his anger and resentment at having been stalked and detained for no reason, and his determination that others not suffer the same indignities, compelled him to bring this action in an effort to put an end to the Utah Highway Patrol’s unlawful tactics.

22. A particularly insidious policy and practice used by defendants and other law enforcement officers in attempting to identify those who may be carrying illegal drugs involves the stopping of persons who fit into an identifiable profile. The profile that caused plaintiff to be stopped, detained and searched without reasonable articulable suspicion was racial in nature. Plaintiff is a dark skinned person. He could be mistaken for someone of Hispanic ethnicity. Hispanic males are particularly the object of suspicion and of profile stops and detentions in Utah, in an attempt to identify them with the possession and transportation of drugs. Indeed, in other similar litigation recently pending before this court, the DPS designated Sergeant Paul Mangelson as an expert witness on drug interdiction efforts. Sgt. Mangelson teaches other troopers to look for particular "indications of criminal activity." These indications include race, because according to Sgt. Mangelson, "A lot of Hispanics are transporting narcotics. That’s common knowledge." In connection with other unlawful stops, Sgt. Mangelson has even taken to “joking” with people of color unlucky enough to come within his sites that he is stopping them because of their color.

23. Stops and searches such as those referred to above are the product of a custom, policy, pattern, practice, agreement and combination, conducted by defendant Curtis and other troopers, and at ratified or tacitly approved of by the other defendants. The troopers who carry out defendants’ race-based traffic stops are aware of their discriminatory purpose and effect. This pattern and practice deprives persons of their right to equal protection or equal privileges and immunities under the law, the right to be free from unreasonable searches, seizures and detention, and their right to due process of law.

24. On information and belief, defendants deny the existence of a continuing custom, policy and practice of race-based traffic stops. Defendants’ denial creates a case and controversy warranting resolution by this Court.

25. Mr. Kang’s treatment was consistent with and pursuant to the DPS’s custom, policy and practice of relying upon perceived race and ethnicity in conducting stops, detentions, interrogations, and searches of motorists. Mr. Kang faces a realistic threat of being subjected to defendants’ unlawful and unconstitutional practices again, as evidenced by his being tailed and stopped as soon as he entered the State of Utah for the first time, because he plans to use the highways of Utah for travel.

VI. Claims for Relief

FIRST CAUSE OF ACTION

Equal Protection (Fourteenth Amendment)

26. Plaintiff repeats and realleges paragraphs 1 through 25 as if set forth fully herein.

27. Defendants, acting under color of law and in concert with one another, engaged in intentional race discrimination in their drug interdiction efforts carried out in Utah along the state’s highways. In so doing, defendants have caused plaintiff to suffer deprivation of his fundamental rights to liberty and to be free from unlawful searches and seizures, on account of his race and/or national origin. These actions violated plaintiff’s rights to equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. § 1983.

28. Defendants, acting under color of law, institute, authorize, ratify, permit and acquiesce in policies, practices and customs of detention, searches and seizures that involve intentional race discrimination in the provision of law enforcement services.

29. The acts of defendants were the direct and proximate cause of injury to plaintiff. They were intentional and done in knowing violation of plaintiff’s legal and constitutional rights, without good faith, and with reckless or callous indifference to plaintiff’s federally protected rights.

SECOND CAUSE OF ACTION

Unreasonable Search and Seizure (Fourth and Fourteenth Amendments)

30. Plaintiff repeats and realleges paragraphs 1 through 29, as if set forth fully herein.

31. Defendants, acting under color of law and in concert with one another, stopped, detained and searched plaintiff without reasonable suspicion that any violation or crime had been committed or that plaintiff was carrying weapons or drugs of any kind, in violation of the Fourth Amendment guarantee against unreasonable searches and seizures. Those actions give rise to plaintiff’s claims pursuant to the Fourth and Fourteenth Amendments to the Constitution of the United States, and 42 U.S.C. § 1983.

32. Defendants, acting under color of law, institute, authorize, ratify, permit and acquiesce in policies, practices and customs of stops, detentions, searches and seizures without probable cause or reasonable, articulable suspicion of crime, in their provision of law enforcement services.

33. Defendants’ acts were the direct and proximate cause of injury to plaintiff. They were intentional and done in knowing violation of plaintiff’s legal and constitutional rights, without good faith, and with reckless or callous indifference to plaintiff’s federally protected rights.

34. The actions of the individual defendants were a result of the deliberate indifference of defendant DPS, Dearden and Ostler of the need to properly train and supervise the individual defendants.

THIRD CAUSE OF ACTION

Right to Travel (Commerce Clause, Article IV, and Fourteenth Amendment)

35. Plaintiff repeats and realleges paragraphs 1 through 34, as if set forth fully herein.

36. Defendants, acting under color of law and in concert with one another, have caused plaintiff to be penalized and deterred in the exercise of his right to travel in interstate commerce, based on plaintiff’s race and/or national origin. These actions violated plaintiff’s rights under Article IV and the Fourteenth Amendment of the United States Constitution.

37. Defendants’ acts were the direct and proximate cause of injury to plaintiff. They were intentional and done in violation of plaintiff’s legal and constitutional rights, without good faith, and with reckless or callous disregard of plaintiff’s federally protected rights.

FOURTH CAUSE OF ACTION

Race Discrimination in Federally Funded Programs (Title VI of the Civil Rights Act of 1964 and 42 C.F.R. §§ 101 et seq.)

(Defendant Utah Department of Public Safety)

38. Plaintiff repeats and realleges paragraphs 1 through 37, as if set forth fully herein.

39. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides:

“[N]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

40. Federal regulations implementing Title VI further provide that no program receiving financial assistance through the U. S. Department of Justice shall utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin. 28 C.F.R. § 42.104 (b)(2).

41. The drug interdiction methods employed by the Utah Department of Public Safety discriminate against minority motorists traveling through Utah, including plaintiff, as described herein.

42. Defendant Utah Department of Public Safety’s violation of 42 U.S.C. § 2000d and its implementing regulations has caused and will continue to cause Plaintiff and other minorities to suffer harm and public humiliation in that they have been and will continue to be subjected to the Highway Patrol Division’s pattern and practice of race-based discrimination.

VII. Prayer for Relief

WHEREFORE, plaintiff prays judgment against defendants and each of them as follows:

1. For a Declaratory Judgment, pursuant to 28 U.S.C. §§ 2201 and 2202, that the official policy of Defendant Department of Public Safety, authorizing Utah Highway Patrol troopers, at their individual discretion and without reasonable, articulable suspicion of criminal activity, to stop and detain motorists for the purpose of conducting a search, is unconstitutional on its face and as applied, in that it has resulted in unjustified detentions and searches, including those of plaintiff, in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States, the constitutional right to travel on the roads and highways of Utah, and 42 U.S.C. § 1983.

2. For a Declaratory Judgment, pursuant to 28 U.S.C. §§ 2201 and 2202, that defendants have engaged in racial discrimination and have denied plaintiff the equal protection of the law, with respect to the stop, detention and search of plaintiff, in violation of the Fourteenth Amendment to the Constitution of the United States.

3. For a Declaratory Judgment, pursuant to 28 U.S.C. §§ 2201 and 2202, that defendants’ stop, detention and search of plaintiff without probable cause or reasonable, articulable suspicion to believe that a crime had been committed or was imminent, violated the Fourth Amendment’s guarantee against unreasonable searches and seizures, and the Fourteenth Amendment.

4. For a Declaratory Judgment, pursuant to 28 U.S.C. §§ 2201 and 2202, that defendants’ conduct violated the rights of plaintiff to travel in interstate commerce, in violation of the Commerce Clause and the Privileges and Immunities Clauses of Article IV, and the Fourteenth Amendment.

5. For a Declaratory Judgment, pursuant to 28 U.S.C. §§ 2201 and 2202, that defendants have engaged in racial discrimination, with respect to the stop, detention and search of Plaintiff described herein, in violation of Title VI of the Civil Rights Act of 1964 and 42 C.F.R. §§ 101 et seq.

6. For a permanent injunction, enjoining defendants from continuing such race-based discrimination as described herein, and to put into place safeguards, including the maintenance of records for every stop conducted by the Utah Highway Patrol containing information about the stop including but not limited to the name and race of the person stopped, the reason for the stop, and whether or not a search was conducted, and additional information sufficient to ensure that such discrimination does not continue in the future.

7. For a permanent injunction, enjoining defendants from their continuing unconstitutional custom, policy or practice allowing troopers to stop and detain motorists and conduct searches without reasonable, articulable suspicion of criminal activity.

8. For compensatory damages, in an amount to be determined at trial, against defendant Utah Department of Public Safety, pursuant to Count IV;

9. For compensatory damages, in an amount to be determined at trial, against the individual defendants, jointly and severally, pursuant to Counts I, II, and III.

10. For punitive damages pursuant to Counts I, II, and III, in an amount to be determined at trial, against the individual defendants, jointly and severally.

11. For costs and attorneys’ fees incurred in pursuing this action, as provided in 42 U.S.C. § 1988.

12. For such other and further relief as the Court may deem just and proper in the premises.

VII. Jury Demand

Plaintiff hereby demands a trial by jury.

DATED this 27 day of June, 2000.

AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC.
Stephen Clark
Attorney for Plaintiff

W. ANDREW MCCULLOUGH, LLC
W. Andrew McCullough
Attorney for Plaintiff