IN

VONESSA BEAIRD and

JOHN BEAIRD

Plaintiffs

vs.

HARRIS COUNTY, SHERIFF

TOMMY THOMAS, Individually, and

JOHN BURTON, Individually,

Defendants.

PLAINTIFFS' ORIGINAL COMPLAINT and JURY DEMAND

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW VONESSA BEAIRD and JOHN BEAIRD (“Plaintiffs”) complaining of HARRIS COUNTY, TEXAS ("Harris County"), SHERIFF TOMMY THOMAS, individually (“Sheriff Thomas"), and SHERIFF'S DEPUTY JOHN BURTON, Individually ('Deputy Burton"), and for causes of action respectfully show the Court the following.

1.0

PARTIES

1.01 Plaintiffs are individuals residing in Harris County, Texas.

1.02 Harris County, Texas can be served with process by serving Harris County Judge, Robert A Eckels, at 1001 Preston Avenue, Houston, Texas 77002.

1.03 Tommy Thomas, the Sheriff of Harris County at all times relevant to this complaint,

can be served with process at his place of employment, 1301 Franklin, Houston, Texas 77002.

Alternatively, he may be served at his residence located at 2815 Cononwood Drive, Kat Harris

County, Texas 77493.

1.04 Deputy John Burton was at all times relevant to this complaint a duly appointed Harris County Sheriffs Deputy. At all times material to this complaint, Deputy Bu on acted towards Plaintiffs under color of state law, including the statutes, ordinances, customs, practices, policies and usage of Harris County, Texas. Deputy Burton can be served at the Harris County Sheriff's Department, 1301 Franklin, Houston, Texas 77002.

2.0

JURISDICTION and VENUE

A. JURISDICTION.

2.01 Jurisdiction is proper pursuant to 28 U.S.C. § 1343, which states:

"The District Court shall have original jurisdiction of any civil action authorized by law to be commenced by any person to recover damages or to secure equitable or other relief under any act of Congress providing for the protection of civil rights, including the right to vote.";

and 28 U.S.C. § 1367, which states:

"...the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that. they form part of the same case or controversy under Article III of the United States Constitution."

B. VENUE.

2.02 This Court has venue pursuant to 28 U.S.C. § 1391(b), which states:

"A civil action, wherein jurisdiction is not founded solely on diversity of citizenship, may be brought only in the judicial district where all of the defendants reside, or in which the claim arose, except as otherwise provided by law."

3.0

FACTS

3.01 Plaintiffs have resided at 20711 Teal Point Drive, Katy, Texas 77450, for the past two years and in Harris County for the past seven years. Their residence is in "Kelliwood Lakes," which is a private, gated community with its own security patrol force.

3.02 Kelliwood Lakes is in Harris County. The Harris County Sheriff's Department has jurisdiction over the community. As a practical matter, however, due to the Private gated nature of the community, to the best of Plaintiffs' knowledge, no Harris County Sheriff’s Department officer ever has patrolled Kelliwood Lakes in the absence of a resident's Co plaint.

3.03 Prior to the public anon of the defamatory statements about which plaintiffs complain in this case, Mrs. Beaird enjoyed a reputation of honesty, stability, and trustworthiness in her community. Mr. Beaird likewise enjoyed a reputation of honesty, integrity, and respect for the law.

3.04 In the early evening of March 17,1999, Plaintiffs had been engaged in separate activities (chores, grocery-shopping, etc.). They met at a local restaurant for dinner. Thereafter, they traveled in separate cars to Mrs. Beaird's mother's home.

3.05 Mrs. Beaird's mother lived a short distance from Plaintiffs, also in Kelliwood Lakes. A person in a vehicle can travel the distance between Mrs. Beaird's mother's residence and Plaintiffs' residence in a matter of minutes (at a lawful rate of speed).

3.06 Around midnight on March 18, 1999, Plaintiffs left the residence of Mrs. Beaird's mother, still in separate cars. Mrs. Beaird left first, followed by Mr. Beaird, who traveled a few hundred feet (at most) behind her.

3.07 Both Plaintiffs were entirely sober. At no point during either Plaintiff drive home did either move from or "weave" out of their respective lanes, other than to pull into their residence's driveway.

3.08 Unbeknownst to Plaintiffs, Deputy Burton sat in a parked, unlit patrol car a short distance from their home. His position placed him approximately 500 feet from Plaintiffs' driveway.

3.09 Because Mrs. Beaird did not enter Deputy Burton's field of vision until immediately before she reached her driveway, his perception thus was not that of an inebriated driver but, rather, that of a lone female at night, in a dark and secluded environment. Furthermore, because Deputy Burton had no way of knowing that Mr. Beaird was following Mrs. Beaird, his perception also was that he was acting in the absence of witnesses and the protection they provide.

3.10 Immediately after Mrs. Beaird passed Deputy Burton (indeed, within seven seconds), he pulled out behind her and followed her into Plaintiffs' driveway.

3.11 Within a minute of Mrs. Beaird's and Deputy Burton's entering Plaintiffs' driveway, Mr. Beaird pulled in, stopping his vehicle behind Deputy Burton's patrol car.

3.12 At this point, Mr. Beaird witnessed Deputy Burton's demeanor. When Deputy Burton realized that Mr. Beaird was present, he appeared alternately startled, then confronted, then hostile, and finally belligerent, as though Mr. Beaird had interrupted Deputy Burton's "plans."

3.13 Deputy Burton either behaved in an irrational manner. For example, although he failed to administer any form of field sobriety test to Mrs. Beaird, he accused her of inebriation. Furthermore, he acted as if she posed a threat of harm to him even though she remained frightened and passive throughout these events and is, in any case, a petite woman.

3.14 Before stating anything to Mrs. Beaird about why he had stopped her, Deputy Burton shoved Mrs. Beaird in the shoulder, grabbed her, and slammed her into her car, while cursing at her. He handcuffed her and threw her to the ground. He then proceeded to lie on her back as if she were struggling and required subduing. Both Mr. and Mrs. Beaird sensed that there was a sexual dimension to his conduct. The above-described actions caused the injuries described in 13.22.

3.15 During these events, Mr. Beaird, in a state of agitation, confusion, and fear, demanded that Deputy Burton tell him whether he intended to arrest Mrs. Beaird and, if $O~ why. Deputy Burton neither answered the question nor informed the Beairds of any reason for his conduct. Instead, he blurted out, "Shut the flick up or I'll arrest you for interfering 'with an investigation."

3.16 Ultimately, Deputy Burton arrested Mrs. Beaird, purportedly pursuant to Tex. Penal. Code § 49.04, for driving while intoxicated ("DWI").

3.17 Deputy Burton disregarded at all times Mr. Beaird's repeated requests that he call a commanding or superior officer to the scene.

.3.18 Deputy Burton, who arrived shortly thereafter on the scene, took Mrs. Beaird to the Clay Road substation. Defendants kept her at the Clay Road substation, without the 4resence of female officers, for approximately five hours. During this time period, she remained handcuffed and constrained to a wooden chair.

3.19 The substation personnel refused to allow her to call an attorney or even to₁' use the rest room. After a couple hours, the sub station personnel did agree, however, to remove her handcuffs. Unfortunately, her wrists had become so swollen. that the personnel could not remove them. Finally, they produced a pair of bolt-cutters to cut the cuffs off of her.

3.20 Thereafter, Deputy Burton videotaped Mrs. Beaird for purposes of testing her sobriety. She passed the test. She refused however, to take a breath test, having become both frightened and suspicious of Deputy Burton. He then tried to force her to sign a con4ssion, a demand as to which she bravely refused to comply.

3.21 Harris County personnel then transferred Mrs. Beaird to the Harris County jail in downtown Houston, where they held her for another nine hours. Finally, at approximately 1:30 p.m. that same day, Harris County released Mrs. Beaird to Mr. Beaird's custody.

3.22 Upon release, Mrs. Beaird had bruises on her wrists from having the handcuffs for an extended period of time. She also had lacerations on her shoulders and forearm from having been thrown to the ground. Plaintiffs immediately forwarded Mrs. Beaird's medical records, which reflect these injuries, to the Harris County Sheriffs Department. Subsequently, the Beairds discovered that Mrs. Beaird also sustained an injury to her rotator cuff

3.23 Outraged, Mr. Beaird complained initially to the watch supervisor, Lieutenant Gary W. Overstreet (“Lt. Overstreet"), who came to Plaintiffs' residence to meet with them about this incident. Upon hearing about Deputy Burton's conduct, Lt. Overstreet indicated that the situation appeared "bizarre.

3.24 Plaintiffs thereafter lodged complaints regarding Deputy Burton's conduct. Sheriff Thomas was aware of these complaints and the investigation that ensued.

3.25 Plaintiffs also participated in the organization of the Citizens for Oversight Committee (“Citizen's Committee”), a group intended to petition the Harris County Sheriff's Department to create a body of citizens to oversee its deputies' conduct.

3.26 On or about March 18, 1999, the Texas Department of Public Safety suspended Mrs. Beaird's driver's license because of her failure to agree to a breath test while in custody.

3.27 On or about April 25, 1999, the Citizen's Committee placed an advertisement (the "Advertisement") in a local, Katy newspaper, The Times (the "Time?'). In the Advertisement, the Citizen's Committee recounted the Plaintiffs' experiences with Deputy Burton and petitioned Sheriff Thomas and Harris County to change certain customs, policies, practices, and procedures that protected, rather than disciplined, rogue personnel. like Deputy Burton.

3.23 On May 2, 1999, in response to the Advertisement and a related Tim4' article, Sheriff Thomas sent a letter to the editor of the Times stating, among other things, that:

(1). "Mrs. Beaird was videotaped less than two hours after her arrest, still clearly in a state of alcohol-induced impairment";

(2) "An investigation by the Sheriff's Department's Internal Affairs Division did not substantiate the Beairds' claims of excessive force";

(3) "Neither Mrs. Beaird's medical records, nor the observation of the deputies who saw her after her arrest, support her claims of contusions or other traumas consistent with physical abuse."

(4) "Mr. Beaird's problem seems to center on the fact that his wife almost, but not quite made it home ahead of the police after allegedly having had too much to drink. Given that this was not a new experience for them,, I can understand his inclination to look for someone else to blame."; and

(5) "People who break the law, almost without exception, blame the police for their problems. Mrs. Beaird had too much to drink."

3.29 Finally, Sheriff Thomas claimed that Mr. Beaird had, "argued] that it is all right to careen through the streets while impaired, as long. as one can afford to reside in a "gated" community." He also pretended not to know that Mrs. Beaird had been handcuffed for over five hours; simply asserting that, in the videotape taken of her at the Clay Road substation, "she is not handcuffed."

3.30 Plaintiffs attach as "Exhibit 1" a copy of Sheriff Thomas' Letter and incorporate same by reference herein.

3.31 After the Times published Sheriff Thomas' Letter, Mr. Beaird spoke with the "chief and sole" internal affairs investigator responsible for the inquiry into Deputy 'Burton's conduct. The investigator assured Mr. Beaird that the investigation, in fact, was not even close to complete, Sheriff Thomas' claims to the contrary notwithstanding.

3.32 Upon information and belief, after the Times published Sheriff Thomas' Letter he attempted to deny to Harris County officials that he wrote it.

3.33 On May 27, 1999, the Harris County District Attorney ("DA") filed a Motion to Dismiss the DWI charges against. Mrs. Beaird. The DA contended that there existed insufficient evidence to prosecute a criminal offense. The Harris County Criminal Court granted the Motion.

3.34 On May 28, 1999, the Texas Department of Public Safety rescinded its suspension of Mrs. Beaird's driver's license.

3.35 After concluding an internal investigati6n, Harris County, by and through Sheriff Thomas, concluded that Deputy Burton had complied with all relevant customs, policies, practices; and procedures.

3.36 Since Deputy Burton's attack on Mrs. Beaird, Sheriff Thomas and Officer Burton have filed frivolous and unfounded litigation against the Beairds', attempting to violate their First. Amended rights to petition the government for charge.

4.0.

CAUSES QF ACTION

4.01 Plaintiffs incorporate ¶1 1.1 -3.36, supra, and incorporate same by reference

4.02 Deputy Burton without provocation, need, or privilege, intentionally assaulted and battered Mrs. Beaird, causing injury while she was in close custody, unarmed and unable to resist.

4.03 Harris County, by and through Sheriff Thomas found Deputy Burton's conduct to be within their customs, policies, practices and procedures.

4.04 As a result of their concerted unlawful and malicious physical abuse of Mrs. Beaird, Defendants intentionally, or with deliberate indifference and callous disregard of Mrs. Beaird's rights, deprived Mrs. Beaird of her right to equal protection of the laws and impeded the due process of justice, in violation of the Fourteenth Amendment of the Constitution of the United States and 42 U.S.C. § 1983.

4.05 Further, Defendants' approval of Deputy Burton's use of excessive force constitutes a violation of the Fourth Amendment of the Constitution of the United States and 42 U.S.C. § 1983.

4.06 Acting under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom, Sheriff Thomas kn6wingly, recklessly, or with deliberate indifference and callous disregard of Mrs. Beaird's rights, failed to instruct, supervise, control and discipline on a continuing basis Deputy Burton in his duties to refrain from unlawfully and maliciously harassing a citizen who was acting in accordance with her constitutional and statutory rights, privileges, and immunities.

4.07 Acting under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom, Sheriff Thomas knowingly, recklessly, or with deliberate indifference and callous disregard of Mrs. Beaird's rights, failed to instruct, supervise, control and discipline on a continuing basis Deputy Burton in his duties to refrain from unlawfully and falsely arresting and imprisoning a citizen who was acting in accordance with her constitutional and statutory rights, privileges and immunities.

4.08 Acting under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom, Sheriff Thomas knowingly, recklessly, or with deliberate indifference and callous disregard of Mrs. Beaird's rights, failed to instruct, supervise, control and discipline on a continuing basis Deputy Burton in his duties to refrain from unlawfully, maliciously, wantonly and oppressively assaulting and beating a citizen or otherwise using unreasonable and excessive force before, during or after the making of an arrest, whether the arrest was lawful or unlawful.

4.09 . Acting under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom, Sheriff Thomas knowingly, recklessly, or with deliberate indifference and callous disregard of Mrs. Beaird's rights, conspired with Deputy Burton to violate the rights, privileges and immunities guaranteed to Mrs. Beaird by the Constitution and laws of the United States and the State of Texas.

4.10 Acting. under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted policy, is so common and well settled as to constitute a custom, Sheriff Thomas kn6wingly, recklessly, or with deliberate indifference and callous disregard of Mrs. Beaird's rights, failed to instruct, supervise, control and discipline on a continuing basis Deputy Burton in his duties to

refrain from otherwise depriving Mrs. Beaird of her constitutional and statutory rights, privileges, and immunities.

4.11 Sheriff Thomas knew or, had he. diligently exercised his duties to 'instruct, supervise, control, and discipline on a continuing basis, should have known that the wrongs conspired to be done, as heretofore alleged, were about to be committed. Sheriff Thomas had power to prevent or aid in preventing the commission of said wrongs, could have done so by reasonable diligence, and knowingly, recklessly, or with deliberate indifference and callous disregard of Mrs. Beaird's rights failed or refused to do so. Furthermore, Sheriff Thomas, directly or indirectly, under color of law, approved or ratified the unlawful, deliberate) malicious, reckless, and wanton conduct of Deputy Burton heretofore described.

4.12 Because making lawful arrests, keeping suspects in custody, and the restraint of excessive force is a crucial component in the daily activities of the Harris County: Sheriff Department ("HCSD"), the need for training in these areas is obvious. On information and belief, Sheriff Thomas gave little or no direction relating to the proper use of force; officers were discouraged from seeking out supplementary training courses; background checks of prospective officers were deficient; discipline was handed out haphazardly, inconsistently, and infrequently; there had been requests to improve training and organization; and there were warnings that if the instruction, training, supervision, an4 discipline situation did not improve, the consequences would be serious.

4.13 As the Harris County Sheriff, Sheriff Thomas' actions or failures to act, set forth in ¶¶ 4.1-4.12, above, were personal because he has the responsibility to prevent the abuses described herein.

.4.14 Further, inadequate training in these areas is almost certain to result in violations

of constitutional rights and has caused widespread, persistent instances of misconduct and incompetence on the part of HCSD Deputies. As a result, authorization of and adopn6n of an inadequate training program and procedures in these areas amounts to a deliberate indifference on the part of Sheriff Thomas to the. safety of citizens and the people with whom the HCSD Deputies come into contact.

4.15 These acts and omissions were the moving cause behind the violations of Mrs. Beaird's rights.

4.16 In particular, the use of excessive force is so widespread and persistent that it constitutes a custom and practice of excessive force adopted by Sheriff Thomas by his acting with gross indifference to the conduct engaged in by officers of the HCSD, including repeated failures to follow department procedures, unnecessary use of excessive force, roughness and unnecessary verbal abuse at the time of making arrests, intimidation during arrests and booking procedures, and abuse of prisoners at the jail. The use of excessive force by HCSD Deputies is so common that Sheriff Thomas either knew or should have known of its existence and his failure to act amounts to a deliberate indifference to the safety of citizens and persons with whom the HCSD Deputies come into contact.

4.17 Further, Harris County, by and through Sheriff Thomas, and Sheriff Thomas individually, have with specific malicious intent, libeled and persecuted Mr. and Mrs., Beaird for attempting to petition the government for change and protest their mistreatment. This conduct has caused much of the Beairds' mental anguish.

4.18 As a bystander to the conduct described in ¶¶ 4.1-4.12, above, Mr. Beaird has suffered severe emotional suffering and mental anguish.

4.19 For the reasons expressed in ¶¶ 1.1 - 4.18, Defendants' conduct constitutes

intentional infliction of emotional distress as to both Mr. and Mrs. Beaird.

5.0

DAMAGES

5.01 Plaintiffs incorporate ¶¶ 1.1 - 4.19, supra, and incorporate same by reference

herein.

5.02 As a direct and proximate result of Harris County's and Sheriff Thomas' false, libelous, and persecuting statements, Plaintiffs have endured embarrassment, humiliation, mental pain and anguish, and shame. They have been and will continue to be injured seriously in their good names and reputations in the community. Harris County's and Sheriff Thomas' conduct has exposed Plaintiffs to contempt, hatred, and to ridicule by the general public, as well as by their friends.

5.03 As a further proximate result of the libelous material disseminated by Harris County and Sheriff Thomas, Mrs. Beaird has suffered special damages in that she has lost or experienced damage to her reputation in the community.

5.04 Harris County and Sheriff Thomas wrote and sent the Letter with actual malice and in bad faith. The law, therefore entitles Plaintiffs to recover punitive damages. Plaintiffs seek $5 million from Harris County and Sheriff Thomas.

5.05 Defendants' conduct in violating Mr. Beaird's civil rights has caused his severe mental anguish and actual economic damages.

5.06 All of the foregoing actions and failures to act by Defendants have resulted in serious physical injuries and emotional distress to Mr., and Mrs. Beaird in connection with the deprivation of their constitutional and statutory rights guaranteed by the First, Fourth and Fourteenth Amendments to; the Constitution of the United States and protected by 42 U.S.C. §1983.

5.07 Actual damages include past and future:

(i) medical expenses,

(ii) pain and suffering,

(iii) mental anguish, and severe emotional distress.

5.08 Special damages include lost income and permanent injury/disfigurement and legal fees for the defense of the falsely brought DWI and maliciously brought libel actions.

5.09 Plaintiffs demand judgment against all Defendants jointly and severally, for the compensatory damages listed above and further demand judgment against each of said Defendants jointly and severally, for punitive damages in the amount of $ 5 million.

5.10 The law also entitles Plaintiffs to recover pre-judgment interest on the amount outstanding and post judgment interest on any judgment at the highest rate allowed by law.

5.11 Plaintiffs hereby demand a jury to hear the facts of their case.