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UPDATED: El Paso Gay Kiss Suit Settled

ALBUQUERQUE, N.M. — A group of gay men who were kicked out of a Chico’s Tacos restaurant three years ago have settled their lawsuit with the city of El Paso after the city agreed to improve anti-discrimination training for police, the group’s lawyers told the El Paso Times.

The incident drew national attention when a police officer allegedly threatened to arrest five gay men for “homosexual conduct”  after two of the men kissed, and the group was kicked out of the restaurant in 2009, the Times said.

Lawyers with Paso del Norte Civil Rights Project representing the group known as “Chico’s Five” said the lawsuit was dropped after the city agreed to have annual extensive training on El Paso’s existing anti-discrimination ordinance, the paper reported.

5:45am 6/29/10 — Gay Men Sue Over El Paso Restaurant Incident: Five claim their rights were violated when they were kicked out of Chico’s Tacos.

Five men who claim their constitutional rights were violated at Chico’s Tacos restaurant in El Paso a year ago today filed a lawsuit Monday against the city, a security company and the restaurant, the El Paso Times reported.

The case involves two men who kissed at the restaurant and who were allegedly threatened by police with a charge of violating a statute barring homosexual conduct — a statute that was declared unconstitutional in 2003, the Times said.

The two and three other men in their group said in the lawsuit they were ordered by the restaurant’s security staff to leave, the paper reported.

Lawyers with the Paso del Norte Civil Rights Project publicly announced the lawsuit Monday along with plaintiff Carlos Diaz de Leon, 32, who said the other four plaintiffs are listed as “John Does” because they fear retaliation, according to the Times.

“I’m doing this because I want to see change, a lot of change,” Diaz de Leon said. “I would like for people to be aware of their rights, and basically, I want equality for everyone.”

Restaurant owner Bernie Mora, who was unavailable for comment Monday, has said in an earlier interview that the five men were aggressive, confrontational and disrupted other customers, the Times said.



7:00am 11/3/09 — Surveillance Video of Chico’s Tacos Incident Lost: El Paso restaurant owner says tape would have showed gay men were unruly.

Surveillance video caught the June 29 confrontation at a Chico’s Tacos restaurant in El Paso in which five gay men were ejected after two of them kissed, but the restaurant owner said he didn’t save the tape, according to documents and interviews obtained by the El Paso Times through the Texas Open Records Act.

Owner Bernie Mora told investigators that the tape would have shown that the five men were aggressive and confrontational and at one point they were shown to “jump up and charge at the guard,” but that he didn’t save the recording, the Times said.

“From what I saw of the video, I found the group’s behavior disturbing and they were extremely confrontational with the guard,” Mora told police. “I unfortunately do not have the video saved on my hard drive any more, nor do I have a copy of the video.”

Mora told police he was out of town at the time of the incident, but reviewed the video before it was lost, the Times said.

Because police were investigating possible officer misconduct rather than a potential crime, Chico’s owner was not required to provide the surveillance video to investigators, El Paso Police Department spokesman Javier Sambrano told the Times.

The incident became a city controversy, leading to more training for El Paso police officers and proclamations from the City Council that gays would be treated fairly while patronizing public places, the Times said.


8:00am 7/22/09 — El Paso Police Release 911 Tapes of ‘Chico’s Tacos’ Incident: City Council upholds discrimination ban in wake of gay men’s ouster from restaurant.


The El Paso City Council unanimously voted Tuesday to reaffirm the city’s commitment to “acceptance, tolerance and diversity” in the wake of a June 29 confrontation between five gay men and security guards at a Chico’s Tacos restaurant, the El Paso Times reported.

Police were called and an officer initially tried to charge the gay men with “homosexual conduct,” a law that had been struck down by the U.S. Supreme Court, and Tuesday’s resolution was to uphold the city’s previous bans on discrimination, including a 2003 ordinance outlawing refusal of service or accommodation based on race, gender, sexual orientation, religion or national origin, the Times said.

“In 40 years, we’ll look back on this that this is the right thing to do,” said council Rep. Steve Ortega, who sponsored Tuesday’s resolution. “This is the civil rights issue of our time.”

Meanwhile, El Paso police on Tuesday released the five 911 emergency calls made over a 20-minute period beginning just after 12:30 a.m. June 29 — three from security guard Marco Nava, who was complaining that two gay men were kissing in a public place in full view of children, and two calls made by one of the five men in the group claiming he and his friends were the victims of discrimination.

The Times has linked to each of the five 911 calls as follows:

CALL 1 to 911 from the Chico’s Tacos security guard

CALL 2 to 911 from Carlos Diaz de Leon

CALL 3 to 911 from the Chico’s Tacos security guard

CALL 4 to 911 from the Chico’s Tacos security guard

CALL 5 to 911 from Carlos Diaz de Leon


Briana Stone, a lawyer with the Paso del Norte Civil Rights Project, told the Times that the 911 tapes in some way vindicate the story of Carlos Diaz de Leon, who made two of the 911 calls, because the security guard (who spoke in Spanish) never described any disruptive behavior beyond the kiss.
Stone also said many unanswered questions about the incident could be cleared up if Chico’s Tacos released a surveillance video from June 29, the Times said.


9:35am 9/16/09 — El Paso Restaurant Owner Denies Discrimination: ‘Chico’s Tacos’ owner says gay men were ejected for rowdy behavior, not for kissing.

Bernie Mora, the owner of Chico’s Tacos in El Paso where five gay men were ejected on June 29, broke his silence on the incident Wednesday and told the El Paso Times his restaurants have never discriminated against anyone.

Mora said guards at the restaurant kicked the five men out not because two of them were kissing but because they were unruly, the Times said.

“Basically, they were just misbehaving,” Mora told the Times in an interview. “This is just a whole lot to do with one guy blowing it all out.”

One of the men, Carlos Diaz de Leon, has said that a security guard called the men “jotos” before saying he didn’t allow “gay stuff” in the restaurant and that a police officer who arrived on the scene after being called by both the guard and Diaz de Leon threatened to charge the men with homosexual conduct — a city statute ruled unconstitutional in 2003, the Times said.

All American International Security, the firm contracted to provide restaurant security, has said the men were engaged in lewd conduct and caused a disturbance, including one of the men “dancing around in the aisles like a ballerina,” the paper reported.

“Our reputation will hopefully prevail,” Mora told the Times on Wednesday. “We serve everybody all the time.”

6:00am 7/9/09 — Gay Men Kicked Out of El Paso Restaurant for Kissing: Civil rights lawyers say security guards showed ‘blatant’ discrimination.

Two gay men kissed at Chico’s Tacos restaurant in El Paso and were kicked out by security guards after being backed up by a police officer on June 29, the El Paso Times reported.

Civil rights lawyers said the security staff was out of line, but police contended that a business can refuse service to anybody, any time, the Times said.

Five people were in the group that was ejected, according to the paper.

“It was a simple kiss on the lips,” Carlos Diaz de Leon, a gay man who was part of the group, told the Times.

De Leon called police at 12:30 a.m. June 29 because he said the guards and restaurant had discriminated against the group after two of the men kissed in public, the Times said.

De Leon said one of the guards told the group he didn’t allow that “faggot stuff” in the restaurant, and when the group refused to leave, he called police, the paper reported.

When two officers arrived, De Leon told the paper, “I went up to the police officer to tell him what was going on, and he didn’t want to hear my side … He wanted to hear the security guard’s side first.”

According to De Leon, the officers told the group it was illegal for two men or two women to kiss in public and that the men could be cited for homosexual conduct — a law the U.S. Supreme Court ruled unconstitutional in 2003 in Lawrence vs. Texas, the Times said.

Also that year, the paper reported, the El Paso City Council banned discrimination based on sexual orientation by businesses open to the public.

El Paso police detective Carlos Carrillo told the Times that a more appropriate charge probably would have been criminal trespass.

“The security guard received a complaint from some of the customers there,” Carrillo told the paper. “Every business has the right to refuse service. They have the right to refuse service to whoever they don’t want there. That’s their prerogative.”

Briana Stone, a lawyer with the Paso del Norte Civil Rights Project, said El Paso’s anti-discrimination ordinance protects people from discrimination based on gender identity and sexual preference and that the police officer who chose not to enforce the ordinance may have contributed to the discrimination, the paper reported.

“This is such a blatant refusal to uphold the law on account of discrimination,” Stone told the Times.

Lisa Graybill, legal director for the ACLU of Texas, said businesses can ask patrons to leave for lewd conduct, but that those standards must apply to all customers, the paper reported.

“If a straight couple wouldn’t have gotten kicked out for it, a gay couple shouldn’t,” Stone told the Times.

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