An innocent Texas man was arrested, jailed for nearly two weeks and sexually assaulted just before his release, all because facial recognition software mistakenly identified him as the suspect of a store robbery, a new lawsuit alleges.

When two men robbed a Sunglass Hut in Houston on Jan. 22, 2022, 61-year-old Harvey Murphy Jr. was in a jail cell 2,000 miles away in Sacramento, California, according to the lawsuit obtained by USA TODAY on Wednesday.

Using low-quality surveillance footage of the robbery, artificial intelligence software at the Sunglass Hut falsely identified Murphy as a suspect, which led to a warrant for his arrest, according to the lawsuit filed last week in Harris County District Courts in Houston.

Later when Murphy returned to his home state of Texas, he was arrested, and a witness to the robbery identified him as a suspect. Murphy was held in jail for nearly two weeks until officials realized his alibi proved it was physically impossible for him to be responsible for the robbery.

But in the hours just before his release from jail, "he goes into the bathroom, where he gets followed by three men, beaten, sexually assaulted and raped," Murphy's attorney, Daniel Dutko, told USA TODAY on Wednesday.

Murphy was later released from jail and the charges against him were immediately dismissed.

Murphy is seeking $10 million from New York-based Macy's and French eyewear company EssilorLuxottica, which owns Sunglass Hut.

California arrest made for solid alibi

Murphy was on probation for a history of non-violent burglaries in the 1980s and '90s, according to Dutko. He was pulled over, arrested and taken to jail in California for failing to report his whereabouts, an obligation under his probation.

If it wasn't for Murphy being in jail the day of the Texas robbery, then he would not have the rock solid alibi that proved is innocence, Dutko said. He added that Murphy said if he had "just been at home watching TV and not had an alibi, (he) would be in prison right now."

"When Macy's and Sunglass Hut comes and says, 'We have your guy with 100% certainty,' that's the big issue," Dutko said.

Dutko said the results of the AI possibly influenced the witness who identified Murphy as one of the robbers and that he has information suggesting the store's loss-prevention team spoke to her before the line-up. Plus, eyewitness accuracy is known to be far from perfect.

Macy's declined to comment on the lawsuit. EssilorLuxottica hasn't responded to USA TODAY's requests for comment.

Murphy traumatized by time in Texas jail

Murphy has since seen a psychologist and psychiatrist to be treated for the trauma he endured in jail, Dutko said.

"He can't sleep at night," he said. "He can't stop thinking about it."

In jail, the men held a shank up to Murphy's neck and threatened to kill him if he ever told anyone. Dutko said.

USA TODAY does not typically name victims of sexual assault, but Dutko said it was important to his client to come forward so what happened to him doesn't happen again.

"'This can't keep happening. (If) I have to suffer the inconvenience of people knowing that it was me that got raped, but it stops this in the future, I'll do it,'" Murphy said, according to Dutko.

Lawsuit highlights dangers of facial recognition misuse

The lawsuit said that companies should not rely on AI technology to identify suspects.

"Any one of us could be improperly charged with a crime and jailed based on error-prone facial recognition software," the lawsuit says. "The companies that use this kind of software know it has a high rate of false positives, but they still use it to positively identify alleged criminals."

The lawsuit also alleges that EssilorLuxottica's facial recognition technology has a high accuracy rate only under ideal surveillance circumstances, including consistent lighting, positioning and no objects obstructing its view.

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