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Lawsuits raising stakes for public entities


Like the crocus in spring, billboards that have popped up in South Texas are literal signs of a fresh beginning--in this case a new season for plaintiffs attorneys.

But for risk managers of cities and counties in Texas and elsewhere, these are signs of potentially costly problems ahead.

The billboards, essentially, invite illegal immigrants who have had run-ins with the police or sheriff deputies to file civil rights complaints against them.

Plaintiffs attorneys are already winning cases for their clients. In April, for example, on the coattails of a criminal prosecution against 25-year-old Guillermo Falcon Hernandez, a sheriff's deputy for Edwards County, Texas, an attorney extracted a $100,000 settlement from the county.

The settlement stems from a criminal prosecution of Mr. Hernandez, who was sentenced in March to a year in federal prison, for violating the civil rights of a woman who was among a group of illegal immigrants in a vehicle he had stopped for a traffic violation in April 2005.

The vehicle contained nine people, at least seven of whom were illegal immigrants, according to the U.S. Attorney's office in San Antonio. When the driver sped away from Mr. Hernandez, he fired six rounds at the car to stop it. One of the rounds injured the woman.

Of course, the degree of force that a law enforcement officer uses should fit the situation. The concept of excessive force does not begin and end with a suspect's nationality.

But, let's be realistic.

First, police work does involve the use of force--even deadly force, when appropriate.

Second, one is much more likely to be subject to force when evading or resisting arrest--and therefore at greater risk of being harmed.

Combine that with the extent of the illegal immigration problem at our southern border and you have a potentially big problem for police and sheriff's deputies--and, therefore, risk managers and their communities.

It starts to look like law enforcement is focusing on one class of people--a violation of U.S. civil rights law. Indeed, more plaintiffs' attorneys are arguing that the mere arrest--for a nonviolent crime--of an illegal who is Hispanic constitutes a civil rights violation--regardless of whether the suspect sustains any injuries.

Some consultants say public entity risk managers largely are unaware of the losses such suits could spawn. The risk is so significant that, some say, risk managers and their police and sheriff's departments have to consider a separate, unwritten standard for engaging illegal immigrants.

For example, that standard might be to not detain or chase illegals, as long as they have not committed a violent act or are not driving recklessly and endangering the public. So in Texas, law enforcement officials in a locality might decide to ignore a state statute under which they may arrest drivers who cannot show a legal license and car registration--if they believe they might be pulling in an illegal.

That standard, however, would create a thorny problem for a sheriff from whom the feds request assistance in rounding up a group of illegals on, say, a freight train rolling through their community: risk a civil rights lawsuit by honoring the request, or risk losing federal funding that already has been earmarked for a new radio system by taking a pass.

There is another approach, consultants say. It might be best described as loss maximization, which could be costly in the short-term but effective in the long-term. That would be to pull the issue into a white-hot spotlight at the national level--before Congress hammers out comprehensive immigration reform--by turning up the heat locally on illegals and, as a result, the region's federal immigration officials.

The choice that a community makes should be based on a formal analysis of its risk appetite. With what's at risk for communities, risk managers should be facilitating discussions between community leaders and law enforcement now.

Senior Editor Dave Lenckus can be reached