JULIE A. ROBINSON, District Judge.
On March 23, 2011, Plaintiff Keenan L. McCoy was driving with his fifteen-year old stepson when he was stopped by Officer Clarence Snyder of the Independence, Kansas Police Department. Snyder and three other backup officers ordered the men out of their vehicle with guns drawn and handcuffed them before the officers realized that McCoy and his son were not in fact the suspects in an assault that the officers had been investigating. McCoy filed this case alleging racial profiling by Officer Clarence Snyder.
Before the Court is Defendants' Motion for Summary Judgment (Doc. 46) and Plaintiff's Motion for Hearing (Doc. 55) on the summary judgment motion. The summary judgment motion is fully briefed, and the Court is prepared to rule. While this is a case where race appears to be the only suspect identifier that matched McCoy or his stepson, it is not a case that involves a pattern of stopping all or even anyone else based solely on the fact that their race matched the race of the suspect. Thus, while a stop of one person based solely on race as a suspect identifier, particularly when other identifiers did not match, may be strong circumstantial evidence of a Fourth Amendment violation, it is not alone sufficient circumstantial evidence of discriminatory intent or effect on a racial profiling claim. Accordingly, Defendants' motion for summary judgment is granted. The Court does not believe that oral argument would materially assist it in deciding the issues presented on summary judgment, so the motion for hearing is denied.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law."
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
The following facts are either uncontroverted, stipulated to, or taken in the light most favorable to Plaintiff. At approximately 8:15 p.m. on March 23, 2011, Independence Police Officers Christina Johnson, Andrew Reid, Clarence Snyder, and Lt. Lisa Helkenberg responded to a reported disturbance at a Jiffy Mart on Main Street in Independence, Kansas. When Officer Johnson arrived, she saw two black males in the parking lot, one of whom identified himself as Anthony Sterling. He reported that he had been assaulted by two men, and that he knew the initials, J.B., of one of the men who had assaulted him. When Officer Reid asked Sterling whether he wanted to press charges, Sterling replied that he did not and that he would "take care of it on the streets." Officer Snyder was at the Jiffy Mart for approximately ten minutes and had an opportunity to observe Sterling. Sterling was 31 years old; he was 5 feet 8 inches and weighed 155 pounds. Officer Snyder describes Sterling as a short and stocky black male with dreadlocks that did not extend past his shoulders. None of the officers saw a gun on Sterling.
Approximately one-half hour after leaving the Jiffy Mart call, officers were dispatched to a fight on North 17th Street; Snyder responded in case the dispatched officers required assistance. This was J.B.'s residence. Officer Snyder learned that a black male subject named Anthony "Pig" Sterling had been at the residence and was threatening to shoot people there; Officer Snyder recognized Sterling's name from the earlier Jiffy Mart encounter. One of the witnesses reported a bulge in Sterling's shirt. Another witness told officers that Sterling was driving a blue Caprice automobile; another witness told officers that Sterling's car was a 1993 red Mercury, older model, with 24-inch rims. While at the 17th Street residence, a car drove by and one of the residents said "that's the car that Pig was in." Officer Snyder followed after the car and performed a "felony stop" along with Officer Reid. Officers Snyder and Reid removed at least four people from the vehicle—two white males and two black females. Sterling was not in the vehicle, so the officers explained to the occupants why they had been stopped and released them to leave.
According to Officer Snyder, a felony car stop is to be performed if an officer believes there is a dangerous person in a vehicle that could cause injury to officers or the public. The officers' protocol for a felony stop includes using their vehicle for safety, drawing their weapon, and directing the vehicle's occupants out of the car one at a time, secured by a cover officer until all occupants are out of the vehicle and secure.
Officer Snyder returned to patrol and looked for Sterling. The parties dispute whether Snyder had a vehicle description for Sterling's vehicle, but agree that Snyder did not stop Plaintiff's vehicle based on any vehicle description.
Just after 9:00 p.m., Plaintiff and his fifteen year-old stepson, I.K., were driving east in a 1988 gold Cadillac on Myrtle Street, on their way to rent a Redbox video. At a traffic light at 10th Street, Plaintiff noticed a police cruiser driven by Officer Snyder headed south on 10th Street, which turned right to head west on Myrtle. Officer Snyder testified that when he observed Plaintiff's vehicle as he passed by it, he believed the person in the passenger seat was Sterling. Snyder made an abrupt U-turn on Myrtle and got behind Plaintiff's vehicle, turned on his emergency lights, and performed a traffic stop. Officer Snyder called for backup, advising dispatch that he thought he had the subject they were looking for. In the meantime, Snyder instructed Plaintiff to turn off his car and Plaintiff complied. Officer Reid arrived within about two minutes, followed by a third and fourth patrol car, driven by Officer Johnson and Lt. Helkenberg.
After Reid arrived, Officer Snyder got out of his patrol car and stood behind the driver's door. Plaintiff followed Officer Snyder's directive to take off his seat belt and open his door with his right hand. Officer Snyder then instructed Plaintiff to face away from the officers, place his hands behind his back and walk backwards toward the sound of his voice. Officer Johnson approached Plaintiff from Officer Snyder's left side, with his firearm drawn. Officer Snyder's service weapon was trained on Plaintiff. Plaintiff noticed that I.K. was shaking with fear.
Officer Johnson approached Plaintiff and patted him down for weapons. Plaintiff was upset and asked what this was about. Johnson told Plaintiff that they were "looking for someone." Officer Snyder next instructed I.K. to get out of the car in the same manner in which Plaintiff was directed out of the car. I.K. was a fifteen-year-old black male wearing a white T-shirt and gray sweats; he was about six feet tall and weighed 280 pounds. I.K's hair was worn in an afro that extended at least five inches away from his head. By the time Lt. Helkenberg arrived at the scene, Officers Snyder and Reid were both pointing their firearms at Plaintiff and I.K.; Reid was pointing a shotgun. Lt. Helkenberg told the officers that I.K. was not Sterling. Another officer commented, "that is not even them." Officer Johnson released Plaintiff and before Officer Snyder could tell them they were free to go, Plaintiff became angry, yelling expletives and repeatedly asking Officer Snyder for his name. Eventually, Plaintiff and I.K. left the scene.
The Independence Police Department ("IPD") never did obtain an arrest warrant for Sterling—the person who was assaulted failed to cooperate. The officers did not look for Sterling or stop any other vehicles that evening in pursuit of Sterling after they stopped Plaintiff's vehicle. There were never any charges filed against Sterling.
Plaintiff filed a complaint with the Kansas Human Rights Commission ("KHRC") on April 25, 2011, claiming that he and his son had been victims of racial profiling in conjunction with the March 25, 2011 incident, as well as two other interactions Plaintiff had with IPD that are not the subject of the remaining claim in this case.
The video of this stop was recorded on Johnson's patrol car that evening but there is a fifteen second audio gap. The video is no longer maintained by the IPD and Lt. Helkenberg does not know what happened to the recording. Plaintiff obtained a copy for this litigation from the KHRC.
The IPD has a policy prohibiting racial profiling. That policy provides as follows:
On February 24, 2011, Snyder and other IPD officers attended a two-hour training course on racial profiling provided by the KHRC. Snyder does not remember anything about this training, but understands racial profiling to mean that "you cannot enforce the laws against any one race, color, religion strictly based on that race, color, or religion." Snyder's supervisor, Lt. Helkenberg recalls that the training was boring, but understands that it might not be boring for black citizens. She understands racial profiling is the use of race, gender, any of the protected persons as the sole basis for the consensual or nonconsensual investigation, stop, frisk or search of persons.
The City and Snyder move for summary judgment on the remaining claim in this case— racial profiling claim against Officer Snyder in his individual capacity.
Defendant Snyder contends that he is entitled to qualified immunity on Plaintiff's racial profiling claim. When a qualified immunity defense has been raised on summary judgment, the plaintiff must demonstrate that (1) the defendant's actions violated a constitutional or statutory right, and (2) the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue and under the circumstances in question.
Qualified immunity protects public officials performing discretionary functions unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."
In determining whether the plaintiff has met his burden of establishing a constitutional violation that was clearly established, a court construes the facts in the light most favorable to the plaintiff as the non-moving party.
Plaintiff alleges a racial profiling claim against Snyder, based on his decision to conduct a felony stop of Plaintiff's vehicle on March 23, 2011. Such an equal protection claim requires Plaintiff to show clear evidence that Snyder's actions "had a discriminatory effect and were motivated by a discriminatory purpose"
Plaintiff points to the following facts regarding Snyder's discriminatory purpose: (1) the decision to stop was not based on a traffic violation; (2) Plaintiff's car did not match the description of the car Sterling was reportedly driving; (3) Plaintiff did not match the description of Sterling; and (4) I.K. did not resemble Sterling.
It is uncontroverted that Snyder did not stop Plaintiff's vehicle because of a traffic violation, or based on a vehicle description. When Snyder passed by Plaintiff's vehicle on Myrtle Street, he briefly glimpsed at the occupants. He testified at his deposition that he believed Sterling was sitting in the passenger seat of the vehicle. This belief was based on his personal observation of Sterling earlier that evening for approximately ten minutes. Snyder explains the mistaken identification by noting that I.K. was seated in the vehicle, so physical characteristics like height and weight were difficult to discern. Viewing the facts in the light most favorable to Plaintiff, other glaring disparities in these individuals' resemblance should have been readily apparent to Snyder: I.K. did not have dreadlocks, but an afro that extended five inches from his head; and, importantly; I.K. weighed over 100 pounds more than Sterling; the men are approximately fifteen years apart in age. Viewing the evidence in the light most favorable to Plaintiff, race was the primary basis for stopping Plaintiff's vehicle.
But the Court is unable to conclude that stopping Plaintiff's car on the race based suspect identifier, standing alone, constitutes clear evidence of discriminatory purpose under Marshall. Unlike other cases in which discriminatory purpose is found, the police in this case did not perform a pretextual stop of Plaintiff's vehicle based on race—race was one accurate criteria that described Sterling's appearance, albeit the only criteria that matched Plaintiff and I.K's appearance.
Plaintiff also falls short of showing a genuine issue of material fact as to discriminatory effect. The Tenth Circuit has indicated that a plaintiff can demonstrate discriminatory effect either by showing a similarly situated non-protected individual was treated more favorably, or by relying on statistical evidence.
In his response brief, Plaintiff raises the issue of the fifteen-second gap in the audio of the traffic stop recording, and appears to request an adverse inference instruction.
In conclusion, the Court finds that while the incident involving Plaintiff and I.K. was unfortunate, and certainly an avoidable mistake by the officers involved, the evidence is insufficient to create a genuine issue of material fact that a Fourteenth Amendment equal protection violation occurred here. The proper judicial remedy under these circumstances was a claim that the officers violated the Fourth Amendment by stopping and seizing Plaintiff without probable cause that he or I.K. was, in fact, Sterling. But this claim was not asserted, and under the standards that apply to the claim that Plaintiff did raise, summary judgment is appropriate in favor of Defendant Snyder.
