The plaintiff, Esther Butler, filed this action pro se in the United States District Court for the Eastern District of Virginia. Her complaint alleged that the defendants, various officials and police officers of the City of Portsmouth, Virginia,1 conspired to deprive her and all Black Americans in the City of Portsmouth of equal protection of the laws by disproportionate and racially selective enforcement of Virginia's liquor laws.2 Under 42 U.S.C. § 1983, she sought injunctive and declaratory relief and monetary relief in the amount of $250,000 compensatory damages and $250,000 exemplary damages.3 The district court granted defendants' motions for summary judgment, finding the plaintiff's allegations of denial of equal protection to be "vague and conclusory" and "unsupported by factual allegations." We agree and affirm.

The fourteenth amendment equal protection clause embraces a right to be free from racially discriminatory enforcement of a state's criminal laws. Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976); Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). The plaintiff correctly stated that in alleging discrimination, one must do more than allege and prove that others have violated the law and are not being prosecuted. See, e. g., Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). Before a claim of unlawful discrimination in the enforcement of criminal laws can be established, the plaintiff must allege and prove a deliberate selective process of enforcement based upon race (or other arbitrary classification). Id.

Butler pleaded the requisite allegations, however, no substantial proof was offered in support thereof. The defendants allegedly conspired to deprive the plaintiff and other blacks of equal protection of the laws by enforcing Virginia liquor laws primarily against members of the black race in order to obtain court fines and city revenue. After finding that the plaintiff's complaint failed to state a cause of action against defendants, the district court granted her leave to submit "whatever additional material she . . . (thought) relevant and necessary." In response, the plaintiff merely stated:

That the gist of my facts to support the conspiracy allegation is as follows: That 98% of the people arrested under 4-58 A.B.C. Code are members of the Black race. As a result, 4-58 A.B.C. Code is being used to disproportionately, capriciously, and arbitrarily arrest the Plaintiff and other members of the Black race.

Defendants submitted certified copies of offense reports of the Portsmouth Police Department from September of 1973 through April of 1975 which arrest records disclosed that approximately 84% of all persons arrested for violating Virginia's Alcoholic Beverage Control Act during this period were Black Americans.4 In addition, the defendants filed affidavits in connection with their motions for summary judgment denying the substance of the plaintiff's claim that they had engaged in a conspiracy to enforce the Commonwealth's liquor laws in a discriminatory manner.

Judge Kellam was right when he said, "Assuming . . . that plaintiff's contention is true (that 98% of these arrests were of blacks), that fact alone is wholly inadequate to support the conspiracy charge in this case. (S)he offers no other factual material of any type in support of her allegations. . . ." Butler v. Cooper, No. 75-49-N, 8 (E.D.Va. Aug. 13, 1975).

Moreover, the alleged purpose of the conspiracy must fail on its face. The Virginia liquor laws (including Va.Code § 4-58) are criminal statutes of the Commonwealth of Virginia. The City of Portsmouth receives no revenue from fines paid for violations of these laws. These court fines are paid directly into the treasury of the state.

In determining whether summary judgment is appropriate, a court must view the record in the light most favorable to the party opposing the motion. All inferences of fact from the proofs submitted must be drawn against the movant and in favor of the opposing party. United States v. Diebold, Inc.,369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). The lower court construed the plaintiff's pro se pleadings and affidavits liberally.5 Given these liberal standards in favor of the plaintiff, the record as viewed on appeal is totally devoid of a meritorious claim based on 42 U.S.C. § 1983 or § 1985. At best, this court can only recognize that approximately 84% of the persons arrested for liquor law violations in Portsmouth during the given period were members of the black race. Nothing in the record supports a theory of conspiracy to racially discriminate in the enforcement of these laws, least of all, not a naked allegation of percentage of black arrests.6

It is significant that in Rizzo v. Goode, supra, the Supreme Court of the United States denied injunctive relief under 42 U.S.C. § 1983 against local police officials who failed to correct their subordinate officers' violations of constitutional rights of individuals.7 In reversing the judgment of the Court of Appeals for the 3rd Circuit, the Court stated that an aggrieved party could not enjoin officials from certain conduct absent a showing that the violation of constitutional rights by the subordinate policeman resulted from an affirmative policy or plan of the official. Id. at 377, 96 S. Ct. 598.

Moreover, the court in Rizzo held that the mere existence of a "statistical pattern" of police violations was not, in any event, sufficient to make the defendant city and police authorities liable under § 1983 for their failure to take corrective measures. Id. at 376-77, 96 S. Ct. 598.

It is evident from the pleadings and affidavits that there was never a showing of an affirmative policy or plan linking the plaintiff's alleged deprivation of constitutional rights with actions by any of the defendants. The plaintiff's arrests for violations of Virginia's liquor laws began back in 1946 as shown by her arrest record which was filed in district court. Her arrests and convictions have been numerous. Without more proof, we cannot permit this plaintiff to pursue an unfounded grudge in federal court.

There is no genuine issue of any material fact. The district court properly granted summary judgment.

AFFIRMED.

I dissent because the record discloses a genuine issue of material fact within the meaning of Rule 56 of the Federal Rules of Civil Procedure. Therefore, the district court erred in granting summary judgment.

In Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S. Ct. 1064, 1073, 30 L. Ed. 220 (1886), the court said:

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

The allegations of racial discrimination in Esther Butler's pro se complaint, supplemented by the records of the Portsmouth police department and her affidavits, disclose facts which, if proven at trial, would constitute a violation of the fourteenth amendment's equal protection clause as interpreted in Yick Wo.

The police arrested Butler, a fifty-year-old widow, for selling two cans of beer in her home. She was charged with selling alcoholic beverages in violation of state law1 and with maintaining a disorderly house in violation of a city ordinance.2 On three occasions she appeared in court, accompanied by her counsel and a privately engaged court reporter. Each time, the case was continued on motion of the prosecution over her objection. After the last continuance, a police officer suggested that she plead guilty to a lesser offense. Upon her refusal, she was convicted in the magistrate's court, fined $200, and sentenced to 60 days in jail. Ultimately, the case was dismissed on appeal because the police failed to file the search warrant as required by law. She charged that the prosecution was conducted in bad faith because of her support for civil rights. She alleged that the continuances were typical of trial delays forced on black defendants to coerce them to plead guilty to lesser charges.

In her complaint, Butler asserted a class action on behalf of all black persons similarly situated in Portsmouth. She alleged that approximately one-third of the city's population of 117,000 are black. She charged that despite this ratio, 98% of the people arrested for the sale of legal whiskey without a license are black. Amplifying this charge, she explained:

Members of the Black race have their own social clubs such as the Elk's Club, Masonic Temple, American Legion, etc. Members of the White race have their own social clubs such as the Elk's Club, Masonic Temple, American Legion, etc. Black undercover police officers are used to infiltrate the Black operated social clubs, especially the American Legion for Blacks, in order to obtain violations of 4-58 ABC Code. As a result, many Blacks are arrested in social clubs and placed in jail for violation of 4-58 ABC Code. Since the inception of the Portsmouth Police Department, the Police Department has never infiltrated and arrested any members of the White race in an Elk's Masonic or American Legion Club operated by members of the White race for violation of the 4-58 ABC Code. As a result, 4-58 ABC Code is being used to disapportionately, capriciously and arbitrarily arrest the Plaintiff and other members of the Black race.

The police records corroborate Butler's charge of disparity in the enforcement of liquor laws. Over a 20-month period, approximately 84% of the persons arrested for violating these laws were black.3 Moreover, in many months, the ratio approached or exceeded 98%, as Butler alleges. For example, in October, 1973, all 39 people arrested for running a disorderly house were black. Similarly, in April, 1974, all 45 people arrested for this offense were black, and in June, 1974, all 57 arrested were black. Arrests for violations of the state ABC laws show a similar disparity. Thus, in November, 1973, all six of the persons arrested for violating these laws were black. The next month, all 13 arrested were black, and in January, 1974, only one out of the 17 persons arrested was white. The next month, all 16 of the persons arrested were black.

In contrast, the records show that for other crimes, including such related offenses as drunk driving and public drunkenness, there is no marked disparity between the number of black and white citizens arrested.

The appellees denied that they conspired to discriminate against Butler or members of her class. They have not explained, however, the disproportionate number of black people arrested for the unlicensed sale of legal whiskey.

In American Fidelity and Casualty Co. v. The London and Edinburgh Insurance Co., 354 F.2d 214, 216 (4th Cir. 1965), the court said with respect to granting a motion for summary judgment:

Not merely must the historic facts be free of controversy but also there must be no controversy as to the inferences to be drawn from them. It is often the case that although the basic facts are not in dispute, the parties nevertheless disagree as to the inferences which may properly be drawn. Under such circumstances the case is not one to be decided on a motion for summary judgment.

That principle of law is applicable to this case where the parties disagree as to the inferences which may reasonably be drawn from the pleadings, affidavits, and exhibits. Furthermore, there is a direct conflict between the charge and the denial of utilizing undercover agents for the selective prosecution of black citizens.

Under the principles set forth in Yick Wo, Butler has established a cognizable claim that the police infringed rights secured by the equal protection clause. Therefore, she should be allowed to proceed to discovery.

Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976), on which the appellees rely, is not to the contrary. In that case, the district court held a full evidentiary hearing. The Supreme Court noted that 250 witnesses were heard. It explained:As the facts developed, there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners express or otherwise showing their authorization or approval of such misconduct. 423 U.S. at 371, 96 S.Ct. at 604.

Rizzo does not hold that statistics indicating a pattern of discrimination are insufficient to defeat a motion for summary judgment. Rather, in Rizzo the complainants failed to prove their allegations after a full evidentiary hearing. Unlike the complainants in Rizzo, Butler has not even been given a chance to proceed to discovery, much less to prove her case at trial.

Despite the suggestion to the contrary, Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962), does not support the grant of summary judgment. The Supreme Court described the deficiency of the complaint in that case as follows:

It is not stated whether the failure to proceed against other three-time offenders was due to lack of knowledge of the prior offenses on the part of the prosecutors or was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons. 368 U.S. at 456, 82 S.Ct. at 505-506.

In contrast, Butler has alleged and reaffirmed in subsequently filed affidavits that the appellees' selective prosecution of black persons resulted from a deliberate policy of racially motivated enforcement.

Never before have we required proof of racial discrimination before permitting a plaintiff to go to trial in a § 1983 action. Rather, we have adhered to the sound principle that trial should be ordered, and summary judgment denied, when the record discloses a genuine issue as to any material facts, or to the inferences that may reasonably be drawn from them about such discrimination. Butler has satisfied this test. Therefore, I would vacate the judgment of the district court and remand the case for further proceedings, including disposition of the defenses of privilege. Butler's allegations, if true, would prove a serious violation of the constitutional rights of many people. For this reason, I would direct the district court to appoint a lawyer to represent her, if she is unable to retain one, so that her evidence can be intelligently marshalled and presented to the court.