Texas Gang Database Case

January 20, 2020

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Texas Gang Database Case

There was an important ruling in a Texas Gang Database case last week in El Paso.

A disabled combat veteran named William Apodaca-Fisk sued Greg Allen who is the Chief of the El Paso Police Department and an El Paso policemen who identified as John Doe on October 14, 2019.

Apodaca-Fisk is a former Army Command Sergeant Major. He was deployed eight times and has been awarded the Legion of Merit, two Purple Hearts, and five Bronze Stars. He is the founder of the Squad Veteran Riders Motorcycle Club and he is an officer in the Southern New Mexico Council of Clubs. He is inarguably a good citizen. He is a Senior Board Advisor for the Mesilla Valley Community of Hope; Co-Chair of Willie’s Heroes Community Foundation for Wounded Warriors; a member of the Las Cruces Mayor’s Veteran Advisory Board; Vice President of the Dona Ana County Humane Society; and as a board member of the Order of Purple Heart and National Association of Amputees. He was awarded the Red Cross Regional Hero Award in 2016.

He testified during the Jake Carrizal trial in Waco. During his testimony he described one percenters as “professional bikers.”

Gang Database

He wound up in the gang database after attending a funeral at a Catholic church in El Paso. The deceased was a motorcyclist and, according to court documents, “Law enforcement heavily surveilled the funeral and took almost 4,000 photographs of the funeral’s attendees and motorcycles, despite the fact that the Catholic church and cemetery are not documented areas of criminal street gang activity. After hearing in 2019 that other motorcyclists that attended the funeral had been included in the TXGANG database, Plaintiff contacted DPS and asked if his name was in it. DPS informed Apodaca-Fisk that his information was in fact in the TXGANG database and that the EPPD had in put him into the database.”

Apodaca-Fisk sued in federal court seeking “declaratory relief that” his “inclusion in TXGANG database was improper because (1) it violates his right to associate; (2) it attaches a stigma with legal disabilities (including deterring travel and preventing him from exercising his Second Amendment rights); (3) Texas Code of Criminal Procedure Article is unconstitutionally vague overbroad; and Texas Code of Criminal Procedure Articles 67.202-203 violate substantive and procedural Due Process. On October 14,2019, Defendants filed” a “motion to dismiss for failure to state a claim.”

Lawyers for the police called Apodaca-Fisk’s complaints “entirely speculative” and suggested throwing the whole case out. Although they did volunteer to remove Apodaca-Fisk’s name from the gang fatabase which is why he is suing ion the first place. Part of the government’s argument was that he couldn’t sue until had actually been harmed.

In a turgid, timidly worded, 27-page ruling a week ago Federal District Judge David Campos Guaderrama ruled that inclusion in the Texas gang database does not violate Apodaca-Fisk’s “asspciational rights.”

Because the judge’s ruling is so cautious, it is worth quoting at length, painful though that may be.

Right Of Association

“Plaintiff (Apodaca-Fisk) pleaded that he is a member of a motorcycle club that ‘is involved in community, charitable, and political activities,’ and that “[‘t]he stigma of being in the gang database chills [his] right to associate’ with it. Thus, Plaintiffs claim appears to fall within the second strand of associational rights protected by the First Amendment. However, Plaintiff does not identify the motorcycle club’s ‘community, charitable, and political activities or viewpoints – political, social, or otherwise – that are harmed by Plaintiff’s inclusion into the TXGANG database Plaintif fhas failed to allege any facts showing that the motorcycle clubs he associated with were engaged in expressive activity. Plaintiff has not alleged that any of the clubs advocated any viewpoints, political, social, or otherwise. Likewise, Plaintiff has not alleged that the clubs were formed to foster any particular set of beliefs, nor does he allege that they promote any particular lifestyle.”

“Further, even when presuming that Plaintiffs general allegations embrace those specificxfacts necessary to support his claim, the complaint is unclear as to how exactly this alleged ‘stigma’ objectively chills Plaintiffs right to associate and prevents him from participating in expressive activities protected by the First Amendment. In other words, since the TXGANG database does not appear to ‘regulate, constrain, or compel any action’ on the part of Plaintiff, then, an alleged chilling effect alone cannot constitute an injury in fact.

“Therefore, Plaintiff has not demonstrated a specific present objective harm or threat of a specific future harm beyond mere subjective chill. Accordingly, the Court concludes that Plaintiff has failed to properly plead an injury in fact for his First Amendment claim.”
Freedom From Slander

The judge did rule for Apodaca-Fisk and against the defenders of the gang database whn he agrees that Apodaca-Fisk was included in the gang database, which resulted in his stigmatization, without due process.

In another passage that seems to cover his rear end and tie other minds into knots, Judge Guaderrama writes:

“‘Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. Hence, “For this reason, ‘damage to an individual’s reputation as a result of defamatory statements made by a state actor, accompanied by an infringement of some other interest, is actionable

“For this type of claim, the Fifth Circuit has consistently required ‘that a section 1983 (plaintiff) show a stigma plus an infringement of some other interest.’ ‘To fulfill the stigma aspect of the equation, a claimant must prove that the stigma was caused by a false communication.’

“Courts will find sufficient ‘stigma’ only in concrete, false factual representations or assertions, by the government, of wrongdoing on the part of the plaintiff. And for the “infringement” prong, a plaintiff must establish that the government ‘sought to remove or significantly alter a life, liberty, or property interest recognized and protected by state law or guaranteed by one of the provisions ofthe Bill of Rights that has been ‘incorporated.’

“Regarding the ‘stigma’ prong of the ‘stigma-plus’ test, drawing all inferences in favor of Plaintiff, the Court concludes that he satisfies it because he pleaded a plausible concrete, false factual representation or assertion by Defendants. Plaintiff pleaded that, despite the fact that he ‘is not now, nor has he ever been, a member of a criminal street gang,’ that he is actively serving his community, and that he has never been arrested or had any kind of encounters with Texas law enforcement. Defendants still inputted him into the TXGANG database and labeled him a gangmember. ‘There is no question that being labeled a gang member harms one’s reputation.” Being labeled a gang member in a law enforcement database carries with it a stigma that is tied with ‘a host of unfortunate implications such as involvement in criminal conduct.’ Thus, accepting as true all material allegations of the Complaint, Plaintiff pleaded a concrete, false factual representation or assertion, by Defendants, of wrongdoing on his part. Yet, Defendants argue that Plaintiff failed to allege an injury because he did not cite to ‘any instance ofwhere his reputation has been defamed[,] as the information in TXGANG is confidential and may not be released to the public.” Mot. at ‘. But courts have found that a stigmatizing label can be sufficiently public even when the government shares it only with other governmental entities and agencies on a ‘need to know’ basis.”

The judge’s actual thoughts are much more difficult to follow than that and are larded with citations about every third word.

The bottom line is that Apodaca-Fisk’s suit will continue. It is also obvious after reviewing this ruling that even a Federal Judge, appoint ted by the Senate for life, is afraid to speak out against the loathsome and undemocratic practice of maintain “gang databases” to label non-conformists as “naughty.”

The reason these databases exist in the first place is to grant police permission to frame innocent people. Once you’re in the database, you become low hanging fruit for any cop with a quota to meet.
Eventually the subject must be reviewed by the United States Supreme Court.


15 Responses to “Texas Gang Database Case”

  1. Gandalf Says:

    California Governors

    R- George Deukmejian January 3, 1983 – January 7, 1991

    R- Pete Wilson January 7, 1991 – January 4, 1999

    Effective January 1, 1992, any firearm, its ammunition, or any deadly or dangerous weapon owned or possessed by a member of a criminal street gang to commit specified offenses may be confiscated by any law enforcement agency or peace officer, Penal Code, §186.22a(e).

  2. oldskewl Says:

    Gandalf thinks Republicans want your guns and every Republican voter thinks Democrats want your guns. In all seriousness, they all want our guns but in the end it’s the democrats who are willing to trash the constitution to get them.

    I know of a couple patches who’ve lost their CCW because of the club name on their backs, said members live in the most heavily democratic state in the country so that dog don’t hunt.

    Republicans are fighting to keep the 2nd amendment not democrats so let’s just get that part right. It’s all these school shootings and BS that’s making them crack down, a lot of Americans don’t give a shit about gun rights so those of us that do have got to fight both party’s. Remember the 2nd amendment is to protect us from the government and neither party wants 1%er’s who don’t obey them at every whim to have guns.


  3. Phuquehed Says:

    You’re worse than a turd that won’t flush. Flies must think you’re heaven with legs.

  4. Dasein Says:

    “Democratic Rep. Eric Swalwell of California offered to support the (Red Flag) amendment if Buck (Rep. Ken Buck, a Colorado Republican who sponsored the amendment) agreed to include those listed “individuals affiliated with white nationalism.”

    Buck agreed, but he said the language should include “any type of supremacy.”

    The amendment ultimately failed 11-21, but not before the top Republican on the panel, Rep. Doug Collins of Georgia, called out Democrats for their hypocrisy.

  5. Gandalf Says:

    “On 10 September 2019, Colorado Congressman Ken Buck (R-CO) offered an amendment to the proposed bill to create federal grants for “Red Flag” bills in the House of Representative….Representative Buck’s amendment would allow law enforcement agencies, on probable cause of a person belonging to a criminal gang, to use “Red Flag” laws to take guns from gang members.” “Democrats Refuse to Include Gang Members in “Red Flag” Laws.” WHAT PART OF THIS DO YOU NOT UNDERSTAND?

  6. Phuquehed Says:

    @Dasein – We can only hope and pray to the gods that he doesn’t.

  7. Dasein Says:

    Grandelf just said “The End”. I’m absolutely certain he’ll never slobber here again.

  8. jrino Says:

    That’s one long winded Judge, with a command of bullshit! My attorney would have asked if it is OK to include the Judges name to the list!

  9. Gandalf Says:

    If you wear a Club Patch…or 1% patch, your on a “street gang list”. Maybe your wife, kids and friends are also on the list. They have 1/2 a case. You got shit! The second you admit to being a member you might as well just hand over your guns. Republicans WANT it that way… Not the “snowflakes”. I think the whole gang list is BS no matter what org is listed. THATS my opinion. But so long as they keep those lists LE should not be taking away peoples rights without cause just because a person is on the list. THE END!

  10. backintheday Says:

    @ Shameful
    Considering the criminal records of LE, politicians, priests and let’s not forget about judges there are more than 3 of each and they have identifiable leadership!

    Why is the statute not applied evenly? Money, influence and power.

  11. Gandalf Says:

    Paladin is right. Dude should have done exactly that… Yet he supports the very Republican party who want “Red Flag Laws” (No guns) to include gang members on the list. Every “Patch” reading this needs to know that Republicans want your guns. I saw the Fed “Gang” list by Org and all the big clubs are listed along with MS13, Crips and Bloods ect. I thought this was a 1%er Club site? Who votes for a party coming for 1%ers (and friends) guns without cause? Because of a Patch? Then claims support for these 1% clubs?

  12. freebird Says:

    @ Paladin

    I agree with you!!

    The reality is i am sure he already owns a legally licensed firearm and more than likely is a CHL holder. If the State Law was so crystal clear comparing the (2) databases is not rocket science.

    One word comes to mind “Entrapment”

    Texas will issue you the License than arrest you if you exercise the right to carry

    Rebel the low hanging fruit was priceless!

  13. Paladin Says:

    To have demonstrated harm, William Apodaca-Fisk’s attorney should have had Mr. Apodaca-fisk try to purchase a firearm while his name was included in the TXGANG database. I’m really surprised Mr. Apodaca-Fisk’s attorney didn’t have Mr. Apodaca-Fisk cover what to me is such an obvious base. No?


  14. Igo Says:

    I could be wrong, but I believe (I was told this some years back by an LE relative) that in the state of MA if you bought a Harley after a certain date (like the year 2000) That your name AUTOMATICALLY went into a gang database. Knowing Massachusetts, it sound JUST like something they would do…

  15. Shameful Says:

    Of course they are walking on eggshells here. Hopefully, this is just the first slice of a full attack on the constitutionality of this database. It would be hard to stop the building of a database; shit, they can say all day that one doesn’t exist or that you’re not in it, while you’re pulled up on their screen with identifiers, affiliations, favorite foods, etc, etc. but, when you are losing rights only due to inclusion in this database (carrying a weapon), you rights are being withheld without due process. Same with identifying ANY Club as a criminal street gang. Individual due process is a cornerstone of our justice system (well it’s supposed to be). This designation that removes certain rights, based on certain statutes, is done so based merely on association, violating the First Amendment. Their qualifying criteria in Texas, 3 or more people, identifiable leadership, common insignias, who regularly meet for the commission of crimes, is loosely applied, as many of these men have never been convicted, most not even CHARGED, with a crime. Since they do this to certain Clubs, why is the statute not applied evenly? How many DPS officers have been charged and/or convicted of felonies? There are more than 3. They have identifiable leadership and common insignias. Why is Texas DPS not included in the database? Subjective application for discrimination and persecution.

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