- Associated Press - Friday, January 6, 2017

WICHITA, Kan. (AP) - A judge has granted a civil trial for a Kenyan man who alleges immigration agents violently attacked him at a Kansas jail for refusing to be fingerprinted before deportation, an incident captured on jailhouse surveillance video.

The lawsuit by Justine Mochama, an international college student who overstayed his visa, has languished in federal court in Kansas for almost three years.

But on Tuesday, U.S. District Judge Kathryn Vratil refused to throw out his claims that two agents from U.S. Immigration and Customs Enforcement used excessive force during the January 2014 altercation.

“It is a good outcome and hopefully it sends a message to ICE that you can’t beat up a pretrial detainee because you want his fingerprints - even if you are frustrated or mad with him. You don’t have authority to do that,” said Matthew Hoppock, the attorney who represents Mochama.

Mochama’s lawsuit claiming his constitutional rights were violated initially listed the Department of Homeland Security and various other parties, but the judge decided the case could only go forward against the two ICE agents involved in the altercation.

The U.S. attorney’s office declined comment. ICE spokesman Shawn Neudauer said Friday the agency does not comment on pending litigation but takes seriously all allegations of employee misconduct.

At the time of the incident Mochama had already been in custody for six months waiting to be deported to Kenya, and had filed a petition for release pending deportation. He wanted his attorney to first look at a form ICE before putting his fingerprint on it, as the ICE agents wanted.

The jailhouse video, which Hoppock provided to The Associated Press, shows Mochama calmly standing with his hands in his pockets when the agents pulled at his arms and lifted him into the air. The lawsuit contends one of the agents, Timothy Zwetow, then punched him in the stomach. During the scuffle Mochama sinks to the floor, and his head is slammed into the concrete floor. At one point, Zwetow gets up to retrieve the form and inkpad while the other agent, Rodney Nichols, remains on top of him.

He was eventually taken to the ICE office in Wichita, where another altercation with agents occurred. He was eventually returned to the Butler County Detention Facility where he saw a nurse who gave him Tylenol and escorted him back to his cell.

The lawsuit contends he still suffers severe headaches and nightmares, which he attributes to the head injuries that day, and contends the jail did not screen him for a concussion or internal injuries.

Machama is still in custody in the Butler County jail pending deportation while his civil case plays out in the courts. He has agreed not to fight deportation and the government has agreed not to deport him while his civil lawsuit is in the courts as long as he does not contest his continued detention, the agreement shows.

Vratil rejected the government’s request to dismiss all claims in the lawsuit, finding a reasonable person could find that the amount and type of force used against Mochama by the ICE agents at the jail was unreasonable. She noted that Mochama had not created a serious security problem and was not actively resisting but “merely had his hands in his pockets.”

However, Vratil sided with ICE on other claims related to a second altercation later that day at ICE offices in Wichita, finding that in that instance Mochama was combative and the officers had reason to be concerned about their safety.

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