Sixty-one-year-old grandfather, Harvey Eugene Murphy Jr., spent ten days in jail for a robbery he did not commit. His lawyers are now suing for $10 million in damages after Murphy says he was sexually assaulted during his wrongful detainment. Murphy’s legal team filed their lawsuit in the 125th District Court in Harris County, Texas.

The January 2022 robbery happened at a Houston area Sunglass Hut. Two gun-wielding robbers raided the popular store and stole thousands of dollars in merchandise and cash. At the time of the investigation, Houston police officers shared a release from Sunglass Hut parent company EssilorLuxottica and retail partner Macy’s. The release stated that the companies had used facial recognition software that positively identified Murphy as one of the perpetrators. The only problem - Murphy had been in California at the time of the robbery.

While visiting Texas to renew his driver's license in October 2023, authorities arrested Murphy at the DMV and detained him while they verified his alibi. Murphy maintained that he was not the perpetrator the police were looking for. On November 3, the Harris County District Attorney’s office announced that Murphy was telling the truth and that he had been in California when the robbery happened. By the time officials realized their mistake, Murphy’s legal team said the damage had already been done.

During his time in jail, Murphy says he was sexually assaulted by three men while he was in a jail bathroom. He says the assault has left him with lifelong injuries.

Murphy’s legal team faults the investigation into the robbery, saying that the police had accepted the use of facial recognition software that was known to be prone to errors. Increasing the error rate, the faulty software was used alongside low-quality surveillance cameras, according to the plaintiff’s complaint.

Murphy is represented by attorney Daniel Dutko of Rusty Hardin & Associates, along with attorney Leah Graham. Dutko shared, "Mr. Murphy's story is troubling for every citizen in this country," adding, “Any person could be improperly charged with a crime based on error-prone facial recognition software just as he was."

It’s not clear which facial recognition software was used to falsely identify Murphy, but his case is not isolated. There have been several other reported instances in which unsuspecting individuals have been arrested and jailed for crimes they did not commit based on faulty AI facial recognition matches. Many of these victims have gone on to sue police departments and other defendants for the false-positive matches.

The alarming rise in false positive matches has prompted organizations like the ACLU to examine and report on investigative techniques used by police departments and the individuals who are at higher risk of being targeted.

The most recent high-profile cases have come out of the Detroit Police Department. In August 2023, Porcha Woodruff, a Black woman who was eight months pregnant, was falsely arrested for a carjacking she did not commit. Her wrongful arrest was the third case of its kind prompted by faulty facial recognition technology.

The controversy surrounding false-positive identity has also put some retailers on notice of how they can and cannot use the tool in their loss prevention operations. In 2023, the Federal Trade Commission banned Rite Aid from using AI facial recognition software because of continued false positives that largely targeted women and people of color.

In Murphy’s case, the facial recognition software likely matched the surveillance footage of the robbers to a database that has stored the booking photos of individuals charged with crimes. In some cases, the software may also be able to scan a database that stores driver’s license photos.

Murphy's prior criminal history may have played a role in his wrongful arrest. Between the 1980s and the 1990s, Murphy had run-ins with the law which would have resulted in his booking photo being stored in the database that was used. Murphy’s legal team says his prior criminal history involved non-violent crimes and that he has since gone on to lead a fulfilling and productive life.

EssilorLuxottica and Macy’s have not responded to the lawsuit or their use of AI facial recognition software.