Neither Kris Smith nor his attorney understand how talking on the phone on a sidewalk next to a fast-food restaurant parking lot ever became a punishable crime, but one night this past December, Smith found himself in jail because of it.
Smith was walking along Westheimer in Montrose, on the way to his girlfriend’s house, when the phone rang. His employer was calling, and so to get away from the bustling traffic, Smith walked toward the Burger King where it was a little quieter. Midway through his brief phone conversation, a police cruiser pulled into the parking lot right in front of a man who appeared homeless, sitting at the very back of the lot. Police got out to arrest the man. Not wanting to deal with the ruckus, Smith started to walk away — when a cop yelled out to him, “Stop. Come over here,” Smith remembers.
“They ended up arresting me right away,” Smith said. “I asked them what they were arresting me for, and they said trespassing. They took us both in the back of the police car.”
As though getting arrested for talking on the phone in a public area wasn’t already worse enough, Smith, a transgender man, also endured endless taunting from the arresting officers once they found out he was transgender. Which is why, taken all together, Smith is now suing the City of Houston, the arresting officers and Burger King (whose employees called the police originally) for up to $10,000, as the Houston Chronicle first reported.
Smith says after dropping off the homeless-looking man at the Harris County Jail, for whatever reason, they proceeded to take him instead to the city jail in southeast Houston. Fearing harassment or assault in the men’s jail for being a transgender man, Smith, who had not yet fully completed his gender transition, informed the officers that he is still listed as female on all his identifying documents, and so perhaps he needed to be housed with females. That’s when the taunting began, Smith says.
“They told me, “We don’t care if you don’t have a dick,” Smith recalled, and according to the lawsuit they also taunted him for not being “a real man.”
The insults continued for the entire duration of the ride to the jail, Smith said.
“They were trying to humiliate me to the point that it was breaking me,” Smith said. “It was stupid. It was completely immature and unprofessional.”
On top of it, the officers never buckled Smith’s seat belt, and so while handcuffed, Smith was repeatedly slammed into the cop car’s backseat barrier as the police kept slamming on the breaks, seemingly intentionally, according to the lawsuit. By the time he arrived at the jail, Smith said, his face was bruised, and his wrists were swollen and cut.
Jailers allowed him a trip to the infirmary to get treated for the bruising and cuts — but then Smith said jail staff took his shirt, and for some reason did not give it back after putting him back in his cell. Smith, feeling somewhat embarrassed, starting banging on the window of the cell while other jailed women watched, asking if he could please have some basic clothing — which turned into basically the best part of his stay in jail, Smith said. "The women were cheering me on like I was Magic Mike and they were at La Bare," he said.
Smith was able to make his $2,000 bail and was released by 9 a.m. the following morning. After his case was reset four times due to Burger King’s failure to even respond to prosecutors — causing Smith to have to miss work and explain the embarrassing situation to family, friends and coworkers — the case was dismissed. Still, for Smith, the dismissal wasn’t enough to make up for being arrested for no reason, getting hit with a slew of slurs by police officers, spending a night in jail and having to wade through the criminal justice system for three months. At one of the early court hearings, Smith said police apparently told prosecutors he was panhandling, and so the judge asked, "How much money do you usually make?"
“I’ve paid for my wrongs. I’ve had traffic warrants and other little mishaps, and I’ve spent my time or paid that off or done my restitution for those things. But it’s such a different and horrifying feeling to be innocent and be in jail or in court,” Smith said. “It’s a completely terrifying feeling. I felt like a caged animal. And there’s nothing you can do — they’re not going to believe you that you’re innocent, and they’re going to treat you just as horrible as everyone else in there.”
Burger King did not return our request for comment (though remember, they didn’t return prosecutors’ either).
“I can’t even force myself to go toward that corner anymore,” Smith said.
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