ACLU: Jury should hear suit

Hispanic man shot in search

Staff WriterFebruary 6, 2008 

The ACLU has weighed in on a lawsuit filed by a Clayton man who claims police there entered his property, and later shot him, because he is Hispanic.

Manuel Pena sued the Clayton Police Department and several of its officers in 2004 after they came on to his property searching for escaped probationer Rudelfo Gonzales. When Pena, then 59, came to the door of his trailer with a .22 caliber rifle, the officers fired at him 16 times, injuring his shoulder.

An internal investigation found that the officers acted within department guidelines, and then-District Attorney Tom Lock found that their actions were not illegal. All three officers involved are still with the department, current Chief Glen Allen said.

The lawsuit alleges that the officers made two decisions based on Pena's ethnicity: to enter his property and to fire at him.

U.S. District Judge Earl Britt ruled in August that a jury should hear the case on the first point but not the second. The ACLU joined the fray in a brief stating that a jury should hear both points.

The brief notes admissions by officers that they entered Pena's property because they thought that, as a Hispanic man, he would be more likely to help the escapee, who was also Hispanic. Though some of the facts remain in dispute, Pena did not fire his gun. He claims the officers did not identify themselves in Spanish, while the officers claim they did.

"Our view of the matter is that if a white man in a white neighborhood opens the door, they would hold their fire," said Douglas Kingsbery, Pena's attorney. "A Hispanic man with a rifle was reason to open fire."

Kingsbery said Pena, who never recovered full use of his shoulder, hopes to be awarded $75,000 in medical expenses, plus legal fees and other damages.

Katherine Parker, an attorney for the North Carolina branch of the ACLU, said the group's interest in the case stems from its wider implications in a state with a growing Hispanic population and an ongoing debate over illegal immigration. Pena is a permanent legal resident.

"We're concerned because of a broader phenomenon we are seeing of racial profiling against the Latino community in North Carolina," Parker said.

Defense attorneys said in court filings that the ACLU distorted the testimony of the officers, who had cited several other reasons for entering Pena's property: A police dog they were using to track the suspect had led them to the area, they had seen Gonzales nearby, and they suspected that Pena's son, Hector Pena, would have tools capable of cutting off Gonzales' handcuffs because he had a concrete business.

"It has been defendants' position throughout this case that numerous race-neutral justifications supported the officers' decision to go to the Pena property on the night in question," the motion filed by defense attorneys Dan Hartzog and Brian Edes said.

Both sides have appealed various parts of Britt's ruling. The case will be heard in the Fourth Circuit of the U.S. Court of Appeals in Richmond, Va.

marti.maguire@newsobserver.com or (919) 829-4841

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