Thank goodness for small, digital voice-recorders and the Texas open records law. For without them, Tony and Elsa Cantu would probably have criminal records and might even be locked up behind bars, victim to the lies and deceptions of the Katy police department, one of its officers, and his wife.
It all started last May at the AMC movie theater inside Katy Mills Mall, according to a lawsuit the Cantus recently filed in Harris County District Court against the city of Katy, its police department, and several of its cops. Tony and Elsa were standing in the popcorn line with their 5-year-old child when a lady cut in front of them. The Cantus protested, and the woman began making a scene, gesticulating wildly and screaming, calling Tony a "wetback."
The Cantus tried to ignore the woman, waited for their food, and then took their seats inside the theater. But the peace and quiet didn't last long.
A few minutes later, an AMC worker asked the Cantus to step outside. Katy policeman Sean Kiley soon arrived. Elsa Cantu claims she asked Kiley several times to check on her kid, who was alone in the theater, but each time Kiley responded, "Shut up and stand right there!"
Finally, Elsa says, Kiley relented and gave her permission to talk to her child, but when she turned to walk into the theater, Kiley grabbed her and arrested her without warning. Elsa claims that Kiley dragged her across the room toward the soda fountain and began hitting and pinching her arms, causing bruises, as he put his handcuffs on her.
Meanwhile, Tony Cantu claims he saw Kiley abusing his wife and ran up to Kiley saying, "Why are you doing this? Do not do that!" Tony says that Kiley later told him it was "time people like you go to jail." Tony felt this was a racist remark. When he tried to use a cell phone to record what was happening, Kiley and other officers, who had shown up, prevented him. Finally, Kiley told Cantu he could go get his child from the theater, but just as he had done with Elsa, as soon as Tony turned toward the theater, Kiley arrested him.
The charges of disorderly conduct against both Tony and Elsa Cantu were later dismissed or not prosecuted.
In many ways, though, the Cantus' story was just beginning.
While Elsa's case was still pending, Tony Cantu decided to do his own investigating and went over to Kiley's house. The officer was not home, but his wife was. They spoke, and then Tony left. Little did Kiley's wife know, but Tony was recording the entire exchange with a Sony digital recorder.
On the drive back home from Kiley's house, Tony claims that officer Kiley was following him. When Tony pulled over at a gas station to fill up, Kiley and several other officers showed themselves and began asking Tony questions before allowing him to drive off.
The very next day, the Cantus claim, Kiley and his wife conspired to get Tony in trouble. Kiley's wife filed an affidavit claiming that Tony had scared her when he had talked to her at her home and had bumped her physically. She stated that Tony was trying to retaliate against Kiley for the arrest at the AMC. Tony was subsequently charged with felony retaliation.
It was right about now that Tony was thanking himself for recording the conversation with Kiley's wife.
Tony gave his audio recording to the Harris County prosecutor, who then authenticated the voices with the Kileys. The next day, the DA dropped the retaliation charge. The dismissal order states, "Defendant made audio recording of conversation ... there is no threat. Cannot prove elements."
Says the Cantus' attorney, Jimmie Brown, "I've listened to the tape, and nothing happened. Officer Kiley [and his wife] conspired to falsely accuse [Tony] of wrongdoing."
While the funny-business surrounding the retaliation charged was still going on, the Cantus filed a complaint with the Katy police department against Kiley, complaining about his assault on Elsa Cantu at the movie theater. Tony included a copy of the audio recording with Kiley's wife as part of the complaint.
In the end, the police department exonerated Kiley on all of Cantu's allegations. However, during the investigation, Kiley apparently said he had not been at the gas station with Tony after Tony had left Kiley's home. Knowing this was not the case, Tony filed an open records request to view the video tape of the incident which was recorded by the patrol car camera of one of the other officers who was also at the gas station that night.
At first, the Katy PD would not give it up. But Tony pressed the issue, eventually getting a favorable ruling from the Attorney General's Office and a copy of the video. Sure enough, it showed Kiley was there that night, despite what he previously told investigators, the Cantus claim.
What's more, the Cantus say that the police department had possession of both the audio and video recordings and did nothing with them, despite the fact that they showed both Kiley and his wife had lied.
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"It's clear that if they listened to the audio tape of officer Kiley's wife, they clearly disregarded it," says Brown. "And they could not have looked at the video, because if they did, they clearly disregarded it, too. And if that's your police policy, fine. But you're going to be held liable for your policy and practice of disregarding evidence."
As of yesterday, says Brown, officer Kiley has not been disciplined.
The Cantus are suing for $500,000 for assault, malicious prosecution, civil rights violations, denial of due process, and intentional infliction of emotional distress.
The Katy city attorney has not yet responded to our calls about this case.