Judge: Havre women detained for speaking Spanish can’t sue feds for damages

Martha Hernandez, left, with Ana Suda, in front of the Town Pump convenience store in Havre where they were detained by a Border Patrol agent. (Photo courtesy of ACLU)

(The Havre Herald) U.S. District Court Judge Brian Morris in Great Falls ruled Wednesday afternoon that two Havre women suing U.S. Customs and Border Protection for detaining them because they were speaking Spanish in a local convenience store cannot be awarded monetary damages.

Morris ruled that Ana Suda and Martha “Mimi” Hernandez cannot receive any compensatory or punitive damages against the United States on the basis of sovereign immunity.

A core basis of the sovereign immunity argument is that someone performing a government function cannot be subject to liability. Morris dismissed those aspects of the lawsuit with prejudice, meaning the women cannot refile them.

The crux of the lawsuit, filed by the American Civil Liberties Union-Montana on behalf of Suda and Hernandez last Feb. 14, remains.

The women are asking for a mandatory change of protocol by CBP that would bar agents from stopping or detaining anyone based on race, accent or language. They’re also asking that Border Patrol agents be prohibited from using race, accent or language as justification for suspicion and seizure or detention.

Those requests remain intact as the lawsuit moves forward, under Wednesday’s ruling.

Morris’ ruling also left intact the women’s request for attorney fees and court costs.

Fallout from the lawsuit has all but pushed Suda and Hernandez out of Havre.

As reported by the Herald Sept. 20, the women are thinking of permanently leaving Havre, as life has become “extremely difficult” for them since filing the lawsuit.

Havre is a “painful place for both women,” court documents say. Strangers, neighbors and their children’s classmates have expressed anger at Suda and Hernandez for suing the Border Patrol, compounding the effects of the incident and “making them feel even more unwelcome in their own town.”

While they consider moving, Suda, whose husband is a Customs and Border Protection employee himself, is staying in Texas with family and Hernandez spends half her time in Great Falls, the other half in Havre.

For Hernandez, this isn’t the first time she’s sued a government entity.

In 2017, she sued Montana’s Hill County for $1 million on the charge of gross incompetence by former county attorney Jessica Cole-Hodgkinson, who is now facing charges of shooting her estranged husband multiple times at his Texas home.

Hernandez’ lawsuit against Hill County was ultimately dismissed, but not before it had the desired effect. The charges against her former boyfriend, who beat her, were refiled and led to a seven-year prison sentence.

Hernandez and Suda had their encounter with Border Patrol Agent Paul O’Neil on May 16, 2018.

The women were speaking Spanish while shopping for milk and eggs at a Havre convenience store. Their conversation prompted the agent, who was nearby, to ask for their IDs, followed by further discussion outside the store. Suda and Hernandez were detained for about 40 minutes. Part of the incident was recorded and news about it, accompanied by a video, made national headlines.

On Feb. 14, 2019, nine months later, the Montana American Civil Liberties Union filed a federal lawsuit on behalf of the women against CBP, Agent Paul O’Neil and CBP Commissioner Kevin MCaleenan.

In the lawsuit, the ACLU contends the incident was unconstitutional because there was no legitimate reason to hold the women. Both are American citizens and speaking Spanish is not a crime. Suda was born in Texas and Hernandez in California.

The women have lived in Havre since 2010 (Hernandez) and 2014 (Suda), and this was the only incident of its kind involving either. O’Neil’s attorney contends “their likelihood of future injury is purely speculative.”

The lawsuit says both women have suffered “emotional and psychological harm” since the event. It also claims the “unjustified and discriminatory seizure” is part of a “longstanding pattern of abusive seizures and investigations” by local Border Patrol agents and goes on to cite a 2014 Havre incident that involved five Latino men and a 2016 incident involving two people with valid immigration papers.

The government and Agent Paul O’Neil have asked that the entire lawsuit be dismissed.

One basis for dismissal, in addition to sovereign immunity, is that the lawsuit doesn’t meet the threshold needed to prove O’Neil’s behavior, as alleged, is a pattern, federal attorneys contend.