September 15, 2021 124 PM
ALPINE –– The City of Alpine is being sued in federal court by former Brewster County resident Kelly Cresswell for the Alpine Police Department’s allegedly unlawful and unconstitutional use of Criminal Trespassing and Harassment (CTH) warnings, which although different from a restraining order, operate in a similar manner.
Between January 2016 and November 2019, APD wrote over 480 warnings, many of which were issued in an overly-broad and ambiguous manner that violates the Constitution’s First and Fourteenth amendments, according to the amended complaint filed in the Western District of Texas toward the end of June.
According to the lawsuit, there are a number of problems with the standard CTH warning form itself as well as how APD officers went about issuing the warnings. For one, the CTH form unlawfully expands the definition of harassment under Texas law. The form defines harassment as, “any form of communication, either verbal or written, other than written legal notice.” Yet, according to the Texas Penal Code, in order to harass another, there has to be a certain level of “intent” to do so.
The other major issue at hand is the process by which APD issued the warnings over the years. According to the complaint, in many of the executed CTH warnings forms, APD failed to sufficiently describe the property the recipient was barred from entering. “In other cases, Defendant’s CTH Warnings provided inadequate or unreasonably restrictive property descriptions. For example, one CTH Warning issued by APD during this time period appears to bar an individual from entering the entire nearby unincorporated community of Fort Davis,” the complaint reads.
Furthermore, the city doesn’t provide the recipient of the form an opportunity to contest the CTH warning either before or after they receive it. “The City of Alpine also has a widespread practice of issuing ambiguous, overly broad, and restrictive CTH Warnings without providing any pre- or post-deprivation notice or opportunity to be heard,” the complaint reads. “The person who would be subject to a CTH warning doesn’t haven’t an opportunity to prove why it might not be needed or justified,” said Peter McGraw, the lead attorney in the case.
The intended effect of these warnings, the complaint reads, is to chill free speech and lawful conduct, thereby running afoul of the First Amendment and the Fourteenth Amendment, the latter of which protects a citizen’s right to due process.
The lawsuit stems out of one particular case involving Kelly Cresswell, who is the plaintiff in this lawsuit. According to court documents, Cresswell was issued a CTH warning in August 2019 after getting in an argument with Lucy Escovedo, who at the time was a city council member and an employee at PermiaCare where Cresswell received mental health treatment starting in October 2018. While a patient at PermiaCare, Cresswell submitted several complaints regarding Escovedo and her “disparaging remarks and mockery” directed at him.
“After [an] appointment, as Mr. Cresswell was leaving PermiaCare, Ms. Escovedo and Mr. Cresswell got into an argument. Mr. Cresswell never threatened in any way or presented any risk of harm to Ms. Escovedo or any other employee, consumer, or other individual at PermiaCare on August 2, 2019, before, during or after his appointment,” the complaint reads.
Later that day, an APD officer and a BCSO deputy showed up at Cresswell’s home to deliver the CTH warning. “The officers informed [Cresswell] that he was not permitted to be in the same location as Ms. Escovedo, even if that location is public, and provided the example that if [Cresswell] saw Ms. Escovedo at the Family Dollar store then he would be required to leave the store or be subject to arrest and criminal prosecution,” the complaint reads.
The CTH warning issued to Cresswell says, “You are hereby warned and placed on formal written notice that you cannot enter upon or remain on the above described property,” yet the portion dedicated to which property Cresswell is forbidden from entering was left blank.
Soon after being issued the warning, Cresswell had a scheduled appointment at PermiaCare on August 12. According to the complaint, Cresswell tried to figure out whether he could attend his appointment without being arrested at Escovedo’s place of work.
“Plaintiff did not know what he was supposed to do to comply with the CTH Warning or to contest its issuance. He did not know what properties he needed to stay away from in order to comply with the CTH Warning’s trespass prohibitions. Mr. Cresswell was never informed by any APD or other City official and did not know how long the CTH Warning would be in effect,” the complaint reads, adding that Cresswell wasn’t sure if he could interact with Escovedo in her role as council member or in her capacity as an employee at PermiaCare.
A few days before the appointment, Cresswell’s attorney reached out to the city to ensure that Cresswell would not be arrested or face criminal prosecution if he showed up to his appointment. The city responded, through then City Attorney Rod Ponton, that the CTH warning would be enforced if he showed up and told Cresswell to reschedule his appointment. Ponton wrote, “[t]he criminal trespass warning will be enforced against [Plaintiff] until I can be assured that a safe workplace exists for Ms. Escovedo.”
Because of that, Cresswell did not make it to his appointment “out of fear that the City of Alpine through APD officers would arrest him,” the complaint reads.
Eventually the CTH warning was withdrawn after PermiaCare said that it never requested a CTH warning against its patient and Cresswell’s attorney threatened further legal action. “However, in the letter notifying Plaintiff of the withdrawal of the CTH Warning, City Attorney Rod Ponton states that Mr. Cresswell should inform him of any future PermiaCare appointments so that the City of Alpine can have an APD officer present at the location of his appointment,” the complaint reads.
As a result of this entire ordeal, Cresswell no longer felt comfortable receiving mental health services from PermiaCare and moved to Louisiana with his family around March 2020. As part of his complaint, Cresswell and his attorney are requesting that the city no longer be permitted to issue these CTH warnings as they have in the past.
The City of Alpine’s attorneys –– Aaron Dorfner and Julian Whitley –– turned down a request for comment, but in a response to Cresswell’s complaint, the city denied that these CTH warnings violate conduct protected by the Constitution.