Texas

Black Waller County Constable Accuses Fellow Officers of Racial Profiling

The Waller County constable is seeking $50 million on claims he was racially profiled by deputy constables who pulled him over in his service vehicle and handcuffed him at gunpoint.

This still image from a traffic camera contained in Constable Herschel Smith's lawsuit shows Smith holding his arms up during an Aug. 18, 2020, stop on Beltway 8 in Houston.

A Black law enforcement official in Texas filed suit late Monday seeking $50 million on claims he was racially profiled by deputy constables who pulled him over in his service vehicle and handcuffed him at gunpoint.

Herschel Smith, an elected Waller County constable, says he was in his uniform heading home in his police vehicle on Beltway 8 in Houston after working a side job on Aug. 18 when he flashed his lights at a speeding driver "in an attempt to get the unknown driver to slow down and stop driving recklessly" and the driver slowed down.

Minutes later, Smith claims, four police vehicles were on his bumper with sirens and lights on. He pulled over and four uniformed officers approached him with their guns trained on him.

Smith says he was alarmed because from his law enforcement training he knew the officers, by so many pursuing him and pulling out their guns, were making a felony stop, meaning they believed he had committed a serious crime.

One of the officers got on their vehicle's PA system and told Smith to put his hands out his window. Fearing for his life and bewildered by the stop in his clearly marked police vehicle, Smith says, he complied with their orders to step out with his hands in the air.

Still pointing their guns at him, the officers made Smith walk to them with his hands in the air and Smith saw from insignias on their vehicles they were Harris County Precinct 5 deputy constables.

Smith sued Harris County, Harris County Precinct 5 Constable Ted Heap and four John Doe deputy constables in Houston federal court. He is represented by Houston attorneys Joseph Gourrier, Robert Woods and Samuel Knight.

Texas constables are elected to four-year terms. In Harris County, the state's most populous, there are eight constable precincts corresponding with justice of the peace precincts.

In addition to patrolling streets and investigating crimes, Texas constables and their deputies serve legal papers and are bailiffs in courtrooms. Outside their precincts, they can arrest people they see committing felonies, or a "breach of the peace," but cannot arrest people for traffic violations, a point central to the events leading up to Smith being pulled over.

Smith says in his lawsuit that while he was off-duty as he drove home that day, he immediately became on-duty when he saw the driver committing the crime of speeding and flashed his police lights at him.

"Plaintiff alleges that because he was not in Waller County, he was outside of his jurisdiction and could arrest the unknown driver for a breach of the peace but could not arrest the unknown driver for traffic violations," the lawsuit states.

Though Smith had his uniform and badge on and identified himself as a Waller County constable, he claims the deputies ignored him, handcuffed him and asked him where his service weapon was.

The deputies allegedly tried to put Smith in the back of a squad car, but he refused to let them do it. He said they needed to call their boss, Constable Heap, because they were clearly violating his civil rights.

"One of defendant John Does informed him that the constable's office had received a 911 call that a person in a vehicle matching the license plate and description of plaintiff's government vehicle had flashed police lights and then pointed a gun at the caller," the complaint states.

According to the lawsuit, local media obtained a recording of the call in which the driver said of Smith, "He's got like police lights. I thought I was being pulled over by the police. When I slowed down and I got in the left lane in the shoulder on the left side to get pulled over, he pulled up next to me and pointed a gun at me and was yelling stuff at me and drove off."

Smith denies he pointed his gun at the driver.

He says the deputy constables kept him handcuffed for almost two minutes before taking them off and releasing him.

Shortly after the incident, Smith held a press conference in which he accused the deputies and Heap of racially profiling him. He claims in the lawsuit Heap "personally authorized the excessive use of force" against him.

Heap responded with his own news conference in which he disputed Smith's racial profiling claims. He said the 911 caller did not mention the race of the man he claimed pointed a gun at him, and that two of the deputies who pulled Smith over are Black, according to ABC13.

To top it off, Smith alleges in his complaint, Heap defamed him when he was asked by a reporter if he had called Smith to apologize.

Heap replied, "Why would I call him? He's a suspect in a criminal case. If I was to call a suspect in a criminal case, would you imagine how that is going to play?"

Smith claims the deputies subjected him to unreasonable and excessive force in violation of the Fourth and 14th Amendments. He also makes claims of defamation and infliction of emotional distress. He seeks at least $50 million in punitive damages "to punish and deter such conduct."

Heap's office did not immediately respond Tuesday morning to a request for comment. No one from the Harris County attorney's office was available to comment.

This story originally appeared on Courthouse News Service.

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