Can a cop abuse his power?

In order to prevail in Federal Court against unethical, immoral or even abusive cops, you have to prove that an action occurred while the cop was acting "under color of law." This is particularly true when a cop uses his position of authority to obtain sexual pleasure against innocent civilians.

In Texas, many cops use that position of authority but get away with sexually assaulting civilians because their police departments will say that "the cops were not acting under color of law," since the police department did not hire them to have sex while on duty and because of "qualified immunity." Case close. Victory for the crooked cop...Not so fast!

The Fifth Circuit recently ruled on a case specifically about the abuse of power by a person clothed with such powers. The case of U.S. v. Dillon, 532 F.3d 379 (5th Cir. 2008) dealt specifically with that issue. A former city attorney used his position of authority to sexually assault women and the city argued that they did not hire the city attorney to have sex but to work as an attorney. The Fifth Circuit saw the confusion and cleared up the mess that Texas once had.

In the finding, the Court reasoned that "An action occurs under color of law, for purpose of statute prohibiting deprivation of civil rights under color of law, when there is misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."

The facts of the case were as follows: Defendant, an assistant city attorney (ACA), was acting under color of law when he sexually assaulted two women, as required to support his convictions for depriving the women of their right to bodily integrity under color of law; one woman came to his office to have her traffic tickets fixed and her son released from jail, and, after he placed a call to judge who ultimately paroled the woman's son, defendant proceeded to kiss her and when she resisted he told her that he knew a lot of police officers and that he could have anybody arrested, and the second woman came to defendant's office to receive a drug test so she could have her pending marijuana charge dismissed, but defendant, before sexually assaulting her, told her that nobody would believe her if she reported him because she had a lewd conduct charge on her record, and thereafter warned her not to tell anyone about the assault or he would come after her and her family.

We believe that every person has a right against having anyone, including cops, from violating that person's right to bodily integrity. No person clothed with power should ever use his position of power to obtain sex while on duty. It is wrong and it should be punished.

Our law firm helps people throughout Texas that have been abused by police. You are not alone anymore! Our lawyers will fight for your rights so you don't have to.

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What are my rights for return of property when a police officer takes my property into custody? Since May of 2011, SAPD is refusing to return my handgun unless I get a court order or get a doctor to tell them to return it to me. I have asked for such in writing on 3 occasions via fax but so far they have ignored my all my written requests as to which procedure I need to follow to regain possession of my property.

Me: I am a home owner in Encino Park, 48 years of age, no criminal history, no history of mental illness... however I am homebound-disabled with MS & Pulmonary Fibrosis. The latter which has rendered me homebound for the most part because humidity and exertion endanger my health and ability to sustain life.

I am the legal owner of the gun and have the documents to verify such, the handgun is registered in my name and was never involved in any crime whatsoever. There is no criminal or misdemeanor case pending surrounding the pistol or myself.

How is it that SAPD can refuse to return my property or place such ridiculous and almost impossible demands for me to comply with regarding the return of my property? Are there current laws that permit SAPD to keep my property from the rightful owner(s) if said property is not being held pending a legal case?

My biggest concern is my safety. My home was burglarized by an unknown party (though XXXXX XXXX has bragged to others about committing the crime when he got out of jail) and there was a burglary of Habitation by an off duty Bexar County Sheriff Officer which was witnessed by me and two other individuals. Being disabled and having to deal with not one but two prior incidents along with many other reported break ins in my area, I depend on my firearm to protect my safety and my home.

Can Police Officers do this?

12 (b)(6) Motions in Federal Court under Fourth Amendment

Our Law Firm has represented numerous clients in Federal Court with their Civil Rights case. We have consistently shown that the facts of the case are more important that precedent since it is those facts that changes the precedent.

Many time, our lawyers have been faced with 12(b)(6) motions in Federal Court and our response has been facts driven rather than law driven. An example of such is given herein for our readers perusal.

Public officials acting within the scope of their official duties are shielded from civil liability by the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982). Qualified immunity “serves to shield a governmental official from civil liability for damages based upon performance of discretionary functions if the official’s acts were objectively reasonable in light of then clearly established law.” Thompson v. Upshur County, Tex., 245 F3d 447, 456 (5th Cir. 2001). A “defendant’s acts are . . . objectively reasonable unless all reasonable officials in the defendant’s circumstances would have then known that the defendant’s conduct violated the United States Constitution or the federal statute as alleged by the plaintiff.” Id at 457.

An excessive-use-of-force claim requires a plaintiff to prove 1) an injury, which 2) resulted directly and solely form the use of force that was clearly excessive to the need, and the excursiveness of which was 3) objectively unreasonable. Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996). This determination “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 396 (1989).

In Iderd, plaintiffs brought a 1983 action on behalf of their children claiming that a police officer used excessive force against the child during an arrest of her father. Iderd, 101 F.3d at 432. During the arrest, the police officer jerked the child out of her chair and dragged her into the kitchen, which resulted in her re-injuring a broken arm. Id. In determining the first and second elements required to establish an excessive force claim, the court maintained that “the extent of the injury suffered by a plaintiff is one factor that may suggest whether the use of force was excessive in a particular situation.” Id. at 434. In analyzing the third element, the court reasoned that “in gauging the objective reasonableness of the force used by a law enforcement officer, we must balance the amount of force used against the need for that force.” Id. In overruling the district court’s judgment as a matter of law for the officer, the Fifth Circuit held that the evidence presented as sufficient for a reasonable jury to conclude that the officer used objectively unreasonable force against the plaintiff. Id. at 435.

In Meaux v. Williams, 113 Fed. Appx. 593, 595 (5th Cir. 2004), the Fifth Circuit reversed the district court’s grant of summary judgment, holding that a genuine issue of material fact existed as to whether the police officer used excessive force when arresting the plaintiff. Id. at 594. Meaux alleged that when he answered the door, he was pulled out of his house and handcuffed.

In Heflin v. Town of Warrenton, 944 F.Supp. 472 (E.D.Va. 1996) the United States District Court for the Eastern District of Virginia overruled defendant’s motion to dismiss a 1983 excessive force claim. After a domestic disturbance between brothers, several police officers responded to a residence and arrested several family members. Id. at 473. While effectuating the arrest, the police officers allegedly used excessive force against the plaintiff when he “proceeded to drag Heflin, by the handcuffs, up the concrete steps to the parking lot. In the course of this, Heflin suffered abrasions to his stomach and face, for which he subsequently sought medical treatment.” Id. at 474.

In Harper v. Harris County, Texas, 21 F.3d 597, 599 (5th Cir. 1994) the Fifth Circuit concluded that allegations that an officer grabbed plaintiff by the throat and bruised knee, were sufficient to withstand a summary judgment seeking dismissal of an excessive force claim. In Harper, the Fifth Circuit applied the test of excessive force in effect prior to the Supreme Court case of Hudson v. McMillian, 503 U.S. 1 (1992), which eradicated the requirement of showing “significant” injury in order to prove an excessive force claim. Id. at 601.

Local Rule CV-12 provides, in pertinent part, that “. . . the opposing party shall have eleven days from the date the motion to dismiss is served on the opposing party, to file a response and to specify what, if any, discovery is necessary to determine the issue(s) of qualified immunity and the time period necessary for the specific discovery. Discovery needs to be conducted to see whether a good faith “qualified immunity” exist and whether the Officer Defendants acted reasonably under the circumstances in injuring a two year old child and a disabled veteran based on a “loud noise” dispatch. Plaintiffs should be allowed to obtain the video tape of the incident so they may investigate as to what threat, if any, was posed by Plaintiffs (especially the child) that caused the Officer Defendants to use excessive force. Plaintiffs would also need to depose the Officer Defendants, which can be done within 90 days, from the time the court order discovery.

Officer Defendants argue that the filling of a suit against a governmental entity pursuant to the Texas Tort Claims Act (“TTCA”) creates an irrevocable election and forever bars suit against any government employees in their individual capacity regarding the same subject matter. TEX. CIV. PRAC. & REM. CODE § 101.106(a). They argue that, if a suit is filed pursuant the TTCA against a government unit and any of its employees, the employees are entitled to immediate dismissal upon the filing of a motion by the government unit. Id. However, the Fifth Circuit recently rejected the Officers’ section 101.106 argument because the TTCA does not apply to intentional torts. Meadours v. Ermel, 483 F.3d 417 (5th Cir. 2007). The court concluded that section 101.106 cannot be construed as a statutory bar to intentional tort claims.


In most cases, an expert is not needed to bring a case in Federal Court for violations of the Fourth Amendment but sometimes is necessary if the Plaintiff is seeking to bring Municipalities into the suit.

Do you have a civil rights violation and do not know how to handle it, give us a call (210) 979-9777. Our lawyers are here to help you!

What is a "police brutality" case?

Depending on which side of the spectrum (political, social, economical) you are in, you may either believe that there is no police brutality in Texas or yes there is. The Baez Law Firm has been fighting for injured Texans as a result of police brutality for some time, and so, we believe that there is way too much brutality!

42 U.S.C § 1983 is the main source of law when police brutality is at issue. The statute states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

Based on this law, our law firm has successfully litigated numerous "police brutality" cases in Texas. If you or some one you love has been a victim of police brutality, give us a call (210) 979-9777.

Was your loved one shot and killed by police in Texas?

Our Law Firm represents numerous families in Texas with regards to police brutality cases. Although the law protects the police, our firm has been able to overcome the obstacles in "excessive force" litigation and successfully bring justice for the families of the victims.

Public officials acting within the scope of their official duties are shielded from civil liability by the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982). Qualified immunity “serves to shield a governmental official from civil liability for damages based upon performance of discretionary functions if the official’s acts were objectively reasonable in light of then clearly established law.” Thompson v. Upshur County, Tex., 245 F3d 447, 456 (5th Cir. 2001).

This is the law in Texas, and it makes it almost impossible to sue a cop; however, our San Antonio Lawyers have been successful in bringing this cases in several Federal District Courts.

If your loved one was shot and killed by the police in Texas, give us a call.

We helped another family in Texas with their police brutality case

Our law firm has been helping people in Texas when they have a case of police abuse, police use of excessive force or when police use their power for the wrong reasons. We have helped thousands throughout Texas with this noble fight.

Recently, we settled a case for our clients when several county deputies abused their power simply because they thought they could. Although we cannot comment on the facts of the case, everyone should know that the deputies were fired and our clients were compensated. Several peace officers that thought they would get away abusing their power did not.

If your loved one has been killed by a cop, let us know. You may have a case against the police. Since we help people when others can't, this is why we say, we care about your legal needs.

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San Antonio Police Department protecting their interest

It has been the practice of the San Antonio Police Department that when officers are involved, they treat the situation differently than if a civilian is involved. In the most recent event, that happens to be the case.

Off-duty San Antonio police Sgt. Gabe Trevino, 42, was on his way home after working a patrol shift, driving a city-owned blue Chevrolet Impala west on the access road. He entered the highway's on-ramp, and his car made contact with the SUV Davila was driving. Notice how quickly the distinction is made, "off-duty."

A police report said Trevino may have failed to yield the right of way to Davila's SUV, which skidded across the two-lane highway and flipped over a 3-foot-tall concrete median. Texas law states motorists entering a freeway must yield the right of way to vehicles on the freeway. Had this been anyone other than an officer, the report would have said, Trevino failed to yield the right of way.

According to police, neither alcohol nor speed is believed to have contributed to the crash. Since officials did not suspect Trevino had been drinking, blood was not drawn, nor was a breathalyzer test conducted. The city does not require alcohol tests when company vehicles are crashed. Had this been anyone other than an officer, all kinds of chemicals test would have been performed.

As concern citizens, questions that have come to our minds are, how long was Trevino working for before the accident? Why no blood nor breathalyzer done on the cop? Why is the SAPD so "hush-hush" about it? The most disturbing thing is, why is the SAPD trying to blame the victim? Reason, "Liability."

The police report said Davila may have failed to take evasive action to avoid the collision: “when a driver takes no evasive action at all,” when she should have; “or, in an effort to avoid the collision, the driver takes improper evasive action, and the action contributes to the crash,” according to the Texas Department of Transportation. This would be the case only if Davila saw Trevino's car coming towards her, not if Trevino was driving so fast that it would have been impossible to see the car. The report does not take this in consideration, and why would it, the report is written by another cop.

This are facts about Trevino's driving record. Trevino received a speeding ticket in his personal vehicle Feb. 13 for traveling 78 mph in a 65-mph zone. Trevino has been involved in at least two previous wrecks, once in 2004 and again in 2007.

The department said "He wasn't found at fault in either incident, nor was anyone injured," SAPD spokesman Sgt. Chris Benavides. Benavides also said it was unclear whether he was on duty when those incidents occurred. SAPD's attempting to minimize liability.

This is an example of cops protecting cops phenomena. We have seen this type of behavior from the police departments in many of our cases. Regrettably, the police department will protect their interest, the cops will continue to work for the departments and the victims and their families are left with unanswered questions.

We were asked to help on other police brutality cases in San Antonio and Brownsville Texas

Recently, The Baez Law Firm was asked by two renowned trial lawyers in Texas Ed Goldner and Rosie Alvarado to help them and to take the lead with their federal cases against two police departments unreasonable use of force when dealing with the public. The city of Los Fresnos and City of San Antonio both have been sued in Federal Court for allegations of wrong doing by its police force.

In both cases, the victims were disable individuals that were cowardly and utterly assaulted, raped and bitten by the police. In both cases, the police fabricated police reports and lied to cover up their wrong doings. This type of incident, although not common, does happens and when it does, some one has to defend the rights of the victims.

We believe that in both cases, the cops were given too much power, not enough training and not enough supervision thus allowing the cops to overstep their authority and misuse their otherwise legally granted powers given by the state.

Texas has seen an increase in Police brutality allegations and cases filed from those allegations. We must all stand together and fight for any injustice, including the abuse by some police officers that have forgotten that they were given authority to serve and protect not to antagonize and overpower on people's constitutional rights.

If you have a case in Federal Court, let us help you obtain the justice for your client that they deserve. That is why we say "we care about your legal needs!"