Wrapping up an oral argument in a federal appeal.

Brian McGiverin, Attorney at Law

Brian McGiverin, wrapping up an oral argument in a federal appeal.

Prison Justice League appeal scheduled for oral argument

An appeal filed by DLM attorney Brian McGiverin on behalf of the Prison Justice League (a membership-based  organization of people incarcerated in Texas prisons) has been set for oral argument before the Federal Court of Appeals for the Fifth Circuit in New Orleans, LA during the week of June 5, 2017. That is good news for PJL.

The underlying lawsuit alleged the officers of Texas’s Estelle Unit have a widespread practice of using excessive force on inmates:

PJL is a membership-based non-profit organization. Its members include over 700 TDCJ inmates, over 100 of whom are located in Estelle Unit, which has a capacity to hold 3,148 inmate overall. In the Texas prison system, inmate demographics sometimes vary from unit to unit. The Estelle Unit’s population is older and sicker than at most units – it is colloquially known as a “medical unit.” About a third of Estelle Unit inmates are over age 50. It is one of TDCJ’s main facilities for blind and deaf inmates and is classified as a Type II geriatric facility. It also temporarily houses inmates from other prisons who need physical therapy, respiratory therapy, or dialysis.

The prison is not run the way it should be. Officers walking the halls of the Estelle Unit routinely exercise unbridled discretion to use physical force on inmates that is unnecessary to maintain discipline on the unit – striking them, twisting arms, slamming them into walls, or throwing them to the ground. Officers at the Estelle Unit use force as punishment and display open contempt for policies telling them to do otherwise. The complaint included specific examples.

The majority of PJL members at the Estelle Unit have been assaulted by officers. Many have also witnessed officers assault other inmates. Many of these men use walkers for mobility purposes, report to dialysis multiple times a week, suffer from diabetes, or have visual or hearing impairments. The complaint included specific examples. Virtually all PJL members at the Estelle Unit very credibly fear being assaulted by an officer in the future. They report feeling unsafe in areas they cannot avoid, such as the central hallway connecting the wings of the prison, and in the chow hall where they are served meals. Many report they routinely skip one or more meals a day to minimize their contact with officers and thus the likelihood of being assaulted.

The warden is aware her staff routinely uses excessive force. Inmates in the Estelle Unit file hundreds of grievances every month, which are reviewed and signed by the warden. Inmates complaining of excessive force use grievances to describe attacks by officers and the identity the officers who attacked them. The warden, however, has not endeavored to stop the identified officers from using excessive force. With very few exceptions, grievances are returned with boilerplate rejection messages, such as: “Accused officer denies claim. No further action warranted.”

The warden was also alerted to officers’ pervasive excessive force by their written “use of force reports.” The warden has read reports documenting uses of force that a reader would understand were clearly excessive. Finally, the warden was also put on notice by her personal observations. The warden is known for walking the halls of the unit, and witnessed excessive force in full view of the hallways.

But the warden has not taken reasonable steps to stamp out the culture of violence among her staff. The warden has the ability to discourage wrongdoing by simply punishing officers who deserve to be punished. She can suspend them, demote them, or fire them. Those are the tools a warden uses to punish and deter staff from all sorts of rule breaking, from the mundane to the critical. And yet, although she is aware of the need to punish officers for excessive force, she prefers not to. As a result, an atmosphere of fear hangs over inmates, especially the elderly and disabled, in a prison where the people meant to protect them have become their main predators.

Racist store owner lawsuit will proceed to trial

Almost one year ago, on November 23, 2015, we posted “Man files racial discrimination suit against diamond store,” regarding a lawsuit against the owner of Bjorkheim’s Diamonds filed by DLM’s Brian McGiverin with co-counsel Judith Bohr, which alleges:

Joseph Carroll is suing Leif Bjorkheim because when Mr. Carroll and a companion entered Bjorkheim’s store to buy jewelry, Bjorkheim brandished shotgun and ordered them to leave, saying “I don’t feel comfortable with you niggers in my store.”

Leif Bjorkheim's shotgun

Leif Bjorkheim’s shotgun


We are pleased to announce today (November 17, 2016) the judge has denied the defendant’s motion for summary judgment, which sought to have the lawsuit dismissed. Instead, we will proceed to trial in the summer of 2017.


See the order hereOrder denying summary judgment (Nov. 17, 2016)



Austin passes Fair Chance Hiring ordinance

DLM’s Brian McGiverin joined with members of the Second Chance Democrats of Austin and other advocates at the Austin City Council on March 24, and they succeeded in encouraging the Council to pass the “Fair Chance Hiring” ordinance described in previous coverage linked from this blog.

The events from that evening were described in on the well known “Grits for Breakfast” blog, which are copied below.

Austin passes Fair Chance Hiring ordinance

FRIDAY, MARCH 25, 2016  Grits for Breakfast

 Last night, the Austin City Council passed a Fair Chance Hiring ordinance, becoming the first city in the South to require employers to wait until a conditional offer of employment has been made to inquire about an applicant’s criminal history. While similar “Ban the Box” initiatives have gained traction across the country, the Austin ordinance goes further than most fair chance laws in that it applies to private employers, delays the criminal history question until the point of conditional offer, and includes a civil penalty of up to $500.

According to Grassroots Leadership, which helped lead efforts to pass the ordinance, more than one in three Texans has a criminal record, and 2200 people return to the Austin area each year from prison. Even though employment stability is one of the top factors in preventing recidivism, 60-75% of people released from prison cannot find work within a year of their release. And the effects of incarceration disproportionately impact people of color: African Americans make up nearly 35% of people incarcerated in Texas prisons, while they represent only 12.5% of Texas’ overall population. With Austin’s unemployment rate exceptionally low and employers in need of applicants, it also makes sense for Austin to pass measures that would help increase the labor pool.

At last night’s hearing, the City Council heard public testimony from many formerly incarcerated individuals who spoke about the difficulty of obtaining gainful employment, the shame and stigma that comes with having a criminal record, and how their families have been impacted by their incarceration. Susannah Bannon, a Ph.D. student at the University of Texas at Austin, stated that her retired parents should not have to “worry about whether or not their 35-year old daughter who is halfway through her doctoral degree can pay her rent,” and asked if “someone who comes from this much privilege and has this much support … cannot make it in Austin, how can someone who is less fortunate do it?” Jorge Renaud, an organizer with Texas Advocates for Justice, slammed the “privileged few” opposing the ordinance, who he said were trying to persuade the Council “to continue a policy that has resulted in families, communities and entire neighborhoods on the east side and south side of Austin, impoverished and destitute and unable to climb out of poverty.”

Attorney Brian McGiverin, who also testified in support of the ordinance, placed the measure in the context of the Civil Rights Movement. He began his testimony with a quotation from a letter written on behalf of the U.S. Chamber of Commerce in 1963 regarding legislation that would become a piece of the 1964 Civil Rights Act. The excerpt resembled statements that have been made in opposition to the Austin ordinance: “The problem involves so many considerations that any bill comprehensive enough to cover them all would in all probability do more harm than good. The better approach to the problem is a combination of voluntary efforts and increased education to ensure better understanding of the need.” McGiverin argued that the “gameplan for gutting civil rights legislation really hasn’t changed that much in the past 50 years” and urged the Council not to be persuaded by the same “tired” arguments that have been used in the past to try to defeat antidiscrimination laws.

Opponents to the ordinance were mostly from the business community and included the Austin Chamber of Commerce, the Texas Credit Union Association, and the Texas Public Policy Foundation. A representative with the Texas Credit Union Association stated that the ordinance “imposes unnecessary costs and burdens on business and imposes particular risks on financial institutions,” referring to potential conflict with federal laws that prohibit financial institutions from employing people with certain criminal histories. However, Council Member Kitchen pointed out that the ordinance expressly did not apply where state or federal law disqualifies a person with a criminal history from holding certain jobs. Temporary staffing firms also voiced concerns that the ordinance would interfere with their particular business model, where applicants apply to the staffing firm for employment but are ultimately sent to outside employers which have their own hiring requirements. In response to those concerns an amendment was adopted that would allow the firms to conduct background checks either upon conditional offer of outside employment, or upon an applicant’s entry into a hiring pool.

Prior to the vote, Council Member Renteria spoke in support of the measure, and – like many of the advocates who testified in support – invoked his personal experience.  He described his brother’s involvement in the criminal justice system and the effects of his brother’s criminal record on work opportunities. His brother, who spent most of his childhood and young adult life incarcerated – first in the Waco State School from age 8 and later in TDCJ until age 32 – is now 68 years old, has never earned more than $10 an hour and has never had health benefits. Council Member Renteria stated that, when his brother was incarcerated, “society at that time really didn’t care about low-income minorities,” and implored his fellow council members to “show our compassion.”

The ordinance was sponsored by Council Member Greg Casar and in the end was opposed by only two Council members. In a moment when communities across the country are looking for ways to improve outcomes for formerly incarcerated people, the ordinance is one of the more progressive efforts we’ve seen and sets an important precedent.

For my part, it was fascinating and inspiring to see a grassroots effort, led by people directly affected by the policy, defeat entrenched and well-funded interests to effect immediate and impactful change. Congratulations to Council Member Greg Casar and the organizers and advocates who have spent the better part of the past year working to get the ordinance passed.

Video from last night’s hearing can be found here.

Suit against APD alleges excessive use of force, racial discrimination in jaywalking arrest


Tuesday, February 16, 2016 by KUT News

Suit against APD alleges excessive use of force, racial discrimination in jaywalking arrest

From KUT: A local law firm is suing Austin police officers involved in an incident on Sixth Street downtown early in the morning of Nov. 6, 2015. The lawsuit (embedded below) claims that officers used excessive force and singled out African-Americans in arresting people for the misdemeanor offense of jaywalking.

A video of the incident gained national attention and hundreds of thousands of YouTube plays. The following version of that video was posted to YouTube by a group called PINAC, which stands for Photography Is Not a Crime, a couple of days after the arrests.

Note: The video below contains profanity and the use of physical force.

One of the two plaintiffs, Lourdes Glen, is a Hispanic woman who was arrested after questioning what police were doing. She can be seen being handcuffed about halfway through the video.

Austin attorney Brian McGiverin is representing Glen and the other plaintiff, Jeremy King, one of the two men arrested for “crossing against the light,” which is the reason stated for the arrest at one point by one officer in the video.

“What happened here was outrageous,” McGiverin said at a press event Monday afternoon. “It was unreasonable, it was racist and it was unconstitutional. The people of Austin, and tourists visiting Austin, and really everyone here deserves better; we deserve a police department that is going to abide by the restrictions of the Constitution.”

Both plaintiffs, who live in Bexar County and were visiting Austin when the incident occurred, spoke at the press conference Monday. King can be seen in the video being handcuffed by officers and lying on the ground with an officer’s knee on top of his neck area. King said he felt that he was discriminated against by the officers because of his race. He says that’s because friends of his who are not African-American but were also jaywalking were not arrested for the misdemeanor that night.

McGiverin was asked why it took so long to file the suit, given that the incident took place in November. King jumped in to respond, saying he’d spoken to several other lawyers who would not take the case because “there wasn’t enough injury.” The suit filed Monday with the U.S. District Court says King suffered a cervical strain, wrist sprain, contusions and abrasions due to the force used by the Austin Police Department.

The lawsuit seeks compensatory and punitive damages, along with legal costs. The suit also requests a jury trial.

McGiverin said they hope to “raise awareness about the reality of how police officers are conducting themselves.”

APD said after the arrests that the incident was being reviewed. KUT’s request for the findings of that review is still pending.

Photo by Jorge Sanhueza-Lyon for KUT News. Plaintiff Jeremy King (center) speaks Monday at a press conference called by his attorney Brian McGiverin (right). King’s mother, Nevetta King (left), sat with her son.

Two in jaywalking arrest caught on video sue Austin police

Two in jaywalking arrest caught on video sue Austin police

Both King, 22, and Glen, 24, were arrested and cited after crossing Sixth Street at Red River Street against a “do not walk” sign. Another person in the group, Matthew Wallace, was charged with resisting arrest in the incident.

The video depicts six officers arresting King and Wallace while Glen yells at the officers to stop. As three officers take Wallace to the ground and place him in handcuffs, they can be seen punching the 23-year-old African-American, placing him in a headlock and striking him with their knees.

King is then seen being taken to the ground in the street, which caused him to have whiplash and mental trauma, the lawsuit says. Later, Glen is arrested after yelling questions to the officers.

The two who have sued were part of a group of five friends who were visiting from San Antonio to attend Fun Fun Fun Fest. They were on their way to be picked up by an Uber vehicle when the encounter with Austin police occurred.

Their attorney, Brian McGiverin, said the officers acted in a racist manner because they initially detained the only two African-Americans in the group. Glen is Latino, and the other two people in their group were white.

“It is unusual to see such a stark example of racism like that, but I don’t think (racism) is unique in these misconduct cases,” McGiverin said.

The officers named as defendants in the suit are Richard Muñoz, Brian Huckaby, Gustave Gallenkamp and Vanessa Jimenez.

McGiverin, who said he usually discourages people from suing a police department while a criminal charge involving possible jail time is pending, advised Wallace not to be part of the lawsuit. Wallace could face up to 180 days in jail if convicted on the resisting arrest charge.

King’s jaywalking charge was dismissed, and Glen’s is still pending. The worst she could face is a $200 fine, McGiverin said.

The city of Austin’s public information office provided the following statement on Tuesday:

“The City is aware of the lawsuit and is prepared to defend the Police Department,” the statement said.

Austin police officers often have been seen on video using force against people near Sixth Street. Records show police apply force in the area far more often than in any other part of the city.

Federal Lawsuit Claims Excessive Force by Austin Police

Federal Lawsuit Claims Excessive Force by Austin Police

By , Texas Tribune, Feb. 15, 2016

One week after an Austin police officer shot and killed an unarmed, black 17-year-old, two San Antonio tourists filed a federal lawsuit against several Austin Police Department officers, claiming the officers used excessive force when arresting them in November.

In last fall’s much-publicized incident, Austin police officers arrested Jeremy King, 22, and Lourdes Glen, 24, alleging they had jaywalked on Austin’s 6th Street. Video taken of the arrest shows several officers forcing King and another friend — Matthew Wallace, 23 — to the ground. King and Wallace are black. Glen is Hispanic.

The suit names Austin police officers Richard Munoz, Brian Huckaby, Gustave Gallenkamp, Vanessa Jiminez and other “unknown officers.”

At one point in the video, an officer appears to punch Wallace repeatedly, though Wallace is already being held on the ground by three officers.

“I’m down, I’m down, bro,” Wallace says on the video, which went viral online. “I’m down, I’m down. What did I do?”

The lawsuit filed Monday by Austin attorney Brian McGiverin includes allegations of excessive force and violations of the Equal Protection Clause of the U.S. Constitution. McGiverin, who is representing King and Glen — but not Wallace — said he advised Wallace not to join the lawsuit because Wallace had been charged with resisting arrest, a more difficult charge to fight.

“What happened here is outrageous. It was unreasonable, it was racist, and it was unconstitutional,” McGiverin said Monday. “We deserve a police department that is going to abide by the restrictions of the Constitution.”

Representatives for the Austin Police Department did not return requests for comment. Shortly after the incident, the department said it was reviewing the events captured in the video.

After the arrest, King, who was not ultimately charged with a crime, went to the hospital, where he was diagnosed with multiple sprained muscles in addition to cuts and bruises, according to the lawsuit. He and Glen are suing for damages, but he said what they really want to see is departmental change.

“In that moment, when it happened … my fear was that my life was in danger, honestly,” King said. “I felt powerless, I felt weak, and that’s not my normal nature.”

The incident is part of a larger trend of police brutality toward black and Hispanic young people, McGiverin said, and he wants the officers involved to face consequences. He pointed out that multiple white jaywalkers in the video were not arrested or confronted by officers.

The goal is to “make sure that they and the department know that they’ll be held accountable when this happens,” he said. “This falls into a larger pattern of practice we’re seeing from the Austin Police Department. It’s just not often publicized because these events aren’t usually caught on video.”

Last week, Officer Geoffrey Freeman killed 17-year-old David Joseph, who was naked and unarmed at the time. Mayor Steve Adler has called for an expedited investigation into the death, which sparked protests in Austin.

Man files racial discrimination suit against diamond store

Man files racial discrimination suit against diamond store

Man files discrimination lawsuit against diamond store

AUSTIN – An Austin man has filed a lawsuit against a local jewelry store, claiming racial discrimination while he was there in March.

Joseph Carroll claims the owner of Bjorkheims Diamonds threatened him with a shotgun and used a racial slur. While Carroll and a friend were browsing several counters, the friend noticed the owner had a gun and was moving toward them. Both then quickly left the store.

Carroll, the NAACP and his attorneys claim his rights were violated.

“There are laws on the books protecting people’s civil rights, but laws don’t mean anything unless we are protecting them and vigorously enforcing them against people who violate them. What happened in Mr. Carroll’s case is outrageous and we as a society can’t allow that to happen,” said Carroll’s attorney Brian McGiverin.

Bjorkheims Diamonds owner Leif Bjorkheim did not want to go on camera with KVUE, but did say it was Carroll and his friend’s behavior that made him suspicious.

Bjorkheim also said both men were asked to leave the store several times but refused. He added he never pointed a gun at them or used a racial slur.

After Intimidation, Pro-Palestine Students File Civil Rights Complaint

DLM Attorney Brian McGiverin helped students with the UT Palestine Solidarity Committee protect their rights to free speech and freedom from discrimination.

After Intimidation, Pro-Palestine Students File Civil Rights Complaint

PSC students have filed a formal complaint with the university

Twelve students of the Palestine Solidar­ity Committee at UT-Austin sought to deliver a two-minute statement at a public lecture on Israeli Defense Forces that was organized by the university’s Institute for Israeli Studies last Friday to express their disapproval of the event, and planned to simply leave after making that statement.

But when Mohammed Nabulsi, PSC member and law student, started reading his pre-written statement from his cell phone, a graduate student attending the event pressed his body against Nabulsi’s in an effort to stop him, as shown in a video that PSC has published on their Facebook page. “Do not touch me,” Nabulsi said to the student. The graduate student then scaled up his efforts to stop Nabulsi by first snatching his cell phone, then ripping the Palestinian flag out of the hands of another PSC member.

Event organizer and UT government profes­sorAmi Pedahzur can be heard in the video yelling at PSC members, “You are students, you know nothing.” As Nabulsi insisted on continuing his speech, event attendees insisted on stopping him – including Pedahzur who is seen at the end of the video also pressing his body against Nabulsi, nose-to-nose, while PSC members were shouting, “Free Palestine,” and “Long live the Intifada.”

After the incident, the 12 PSC students were detained for 40 minutes by UT police. One, who is a UT Middle Eastern studies graduate, was given a criminal trespass notice, which bans him from the entire UT campus. “He did not do anything except for hold the Palestinian flag,” said Brian McGiverin, Austin Lawyers Guild attorney. “No reason was given to the student why he was penalized.” PSC members have often presented statements during events without encountering problems, Nabulsi said. After the incident, the UT Dean of Students, Dr. Sonica Reagins-Lilly, reassured PSC members that they were acting within their rights.

After the event, Pedahzur released a statement about the incident on an official UT website – that was later removed – and on his website and Facebook page. In it, Pedahzur compared the incident with the latest Paris terrorist attacks, saying, “Less than 48 hours after the horrific attacks in Paris, I feel that it is my responsibility to ask you to join me in an attempt to confront the radicalization process on campuses and to protect students, staff, and faculty members from intimidation and violence.”

“Drawing a connection between students’ attempt to practice their First Amendment right through expressing their opinion about a political matter, such as the Israeli-Pales­tin­ian conflict, with what happened in Paris is outrageous and dangerous,” McGiverin said.

After Pedahzur’s statement, PSC members have been avoiding being on campus; some have “received multiple threatening messages and comments,” according to McGiverin. “We are worried about our safety,” Nabulsi explained, “since we were referred to as ‘red flags for terrorism.’ People take a professor’s words seriously, so they might act on it.”

In his statement, Pedahzur also accused students by name of extremism.

“It is the scariest thing for a Muslim to be labeled as a terrorist, especially in the anti-Muslim climate of Texas,” said Nabulsi.

The group urged the university in a recent press release to conduct a full investigation of the events and Pedahzur’s later statement on the university website, and to take the necessary steps to remedy the situation.

“The university has an obligation to protect students’ freedom of expression and privacy, and against any racial discrimination,” McGiv­erin said. PSC members have filed an official civil rights complaint with the university and are waiting for a response. “I am hopeful that UT treats this event with the gravity it deserves,” said McGiverin.

Pro-Palestine UT Students Claim Civil Rights Were Violated

Pro-Palestine UT Students Claim Civil Rights Were Violated

A group of pro-Palestinian University of Texas students tried to make a statement Friday before the start of an event sponsored by the UT Institute for Israel Studies.

The student group wasn’t part of the program, but they say what happened next went too far.

”What happened was outrageous, I mean their treatment at the event itself was a complete violation of their first amendment rights,” said attorney Brian McGiverin.

Tuesday, UT students from the Palestine Solidarity Committee submitted a civil rights complaint to the University.

Mohammed Nabulsi says he was physically confronted, and assaulted, by a recent UT graduate in the lecture hall.

He thinks the behavior was encouraged by the professor in charge of the event: Dr. Ami Pedahzur.

But Nabulsi says what that professor did after the incident was worse.

“He released a statement, on an official University of Texas webpage, revealing my personal information and likening my participation in a peaceful demonstration to the tragic events that transpired in Paris,” said Nabulsi.

Patrick Higgens—a former UT student—was also at the demonstration, holding a Palestinian flag.

A video shows the flag being ripped out of his hand.

”The University of Texas Austin has banned me from its campus,” said Higgens.

”The University is a place where tough questions can be addressed from multiple perspectives,” said President Gregory Fenves.

As of Tuesday evening, UT President Fenves had not watched the video.

He says the university is still investigating the situation.

”Our education of our students, the scholarship of our faculty, depends on free and unencumbered speech,” added Fenves.