Chesapeake man sues in 13-year fight to clear his name

By Matthew Bowers
The Virginian-Pilot
© February 26, 2011

CHESAPEAKE

John Shelby thought his new bosses at an El Paso, Texas, casino were playing around when they withdrew their job offer for him to manage three of their bars.

They weren’t.

A background check showed he was a felon, and he was supposed to be in the city jail. Right then.

“I made a joke about it,” Shelby said. ” ‘Yeah, I escape every morning to come to work.’ Because I thought they were joking.”

It’s no joke to Shelby now, after more than a decade of losing or being passed over for jobs, which Shelby said forced him to live on the streets for a while.

“I had no idea what was in store for me,” said Shelby, who lives in Chesapeake.

Shelby claims police in El Paso negligently linked his name to someone else’s criminal record in 1997 when that man gave Shelby’s name as his own.

That record pops up when prospective employers run background checks on Shelby, limiting or killing his chances at securing a job.

And that, Shelby argues, violates his civil rights by invading his privacy and ruining his ability to make a living.

More than 13 years after he lost the casino job, Shelby has a $7.5 million federal lawsuit pending against the city of El Paso. At an initial hearing in Texas on Friday, a judge allowed the case to continue and ordered the parties to develop a trial schedule, said Stephen Casey, Shelby’s Austin, Texas-based lawyer and Regent University law graduate.

Shelby didn’t know it, but his ordeal began in 1991 when, at 19, he was arrested on a charge of trespassing at his old high school, according to interviews with Shelby and Casey, court filings and other documents.

Shelby said he was there to pick up a student friend. The school district dropped the charge.

Shelby went on a stint in the Navy, and jobs such as delivery driver and bartender.

Things changed for him when the casino job came – and quickly went – in late 1997.

He learned that earlier that year, police arrested the man who gave Shelby’s name. The man had heard of Shelby through a family both knew.

Shelby and his lawyer say police added Shelby’s personal information, including Social Security and driver’s license numbers, from his 1991 file despite obvious differences in height, weight and age. They also claim in the suit that police didn’t compare fingerprints.

The man is serving a life sentence in Texas for aggravated robbery and engaging in organized criminal activity, according to Texas Department of Criminal Justice data online.

After Shelby lost the casino job, police at first told him the problem was “cleared up ” and gave him a letter stating so.

But the erroneous record lived on in various databases that background-check companies use. Shelby’s name remained listed as an alias for the other man.

Jobs became elusive. He’d get passed over and not know why. The Postal Service hired him as a carrier in Suffolk and then, according to his suit, a supervisor fired him for “dishonesty” because of his record check. Shelby had already begun orientation; instead, Shelby said, he became homeless.

Repeated calls to El Paso authorities proved fruitless, although they expunged his 1991 arrest record by January 2008. He also called elected officials. He started a website, www.goodnamegone.com.

Meanwhile, he obtained entry-level jobs, but the record thwarted promotions. He gave up his dream of becoming a kindergarten teacher. He hasn’t tried to vote, having been told the felonies on the record would forestall registration.

An El Paso police officer’s “fervent desire to ‘ fill in the blanks’ ” on an arrest report did far-reaching damage, Casey, the lawyer, wrote to El Paso officials in a September 2010 letter seeking a settlement.

“You’ve got this bell that’s been rung by the city of El Paso and it can’t be un-rung,” Casey said in an interview. “All they can do is clean up the mess.”

An El Paso police spokesman and a city spokeswoman said they couldn’t talk about Shelby’s situation because of the pending suit.

Brian Falco of San Diego previously worked with an organization that combated identity theft, and Falco has continued trying to help Shelby. He called Shelby’s situation unusual; solving such problems takes time and money, making them low priorities for busy law-enforcement officials, he said.

“Ever deal with a bureaucracy?” he asked in an interview. “If you’re wrongly installed in there, it takes an act of God to get it out of there…. Because some paperwork is messed up, you shouldn’t not be able to get a decent job.”

At age 39, Shelby delivers pizzas because that’s one of the few jobs he can land without a background check.

He hasn’t been able to save for retirement or college for his two young children. He and his wife, a saleswoman, have no health insurance. Finances are so tight, in fact, they’re moving today to Florida because they no longer can afford their Greenbrier home.

“I’ve had my moments when I’ve been straight-up depressed,” Shelby said. “It’s been a heck of a hard road.”

Shelby said he has tried looking at the past 13-plus years as a learning experience – “how to overcome adversity, maybe.”

One lesson learned, he said, has been to not tie his self-worth to a job, but instead to things like being a good father and husband.

He jokes his wife, Bethany, remains “so positive it annoys me.” But there are limits, she said.

“The main thing, really, has been watching that zest dwindle from John,” she said. “It makes me sad….

“They see it as one mistake. They don’t see it as 10 years of building a crappy resume… that affects the rest of your life.”

Both hope the lawsuit changes things.

“If this doesn’t work, I don’t know what I’m going to do,” Shelby said. “I can’t deliver pizzas all my life.”

Matthew Bowers, (757) 222-5221, matthew.bowers@pilotonline.com

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