THOMAS D. SCHROEDER, District Judge.
I. FINDINGS OF FACT .........................................................282A. Alamance County ......................................................2821. Population and Demographics of Alamance County ...................2822. Law Enforcement Challenges in Alamance County ....................283B. ACSO and Sheriff Johnson .............................................2851. The Introduction and Implementation of ICE's 287(g) Program in Alamance County ..............................................285a. 287(g) Program's TFO .........................................286b. Termination of TFO Position ..................................289c. Gun Permit Investigations ....................................290d. ACSO's Processing and Booking Procedures .....................291e. Fairness Alamance ............................................2942. ACSO Arrest Policy and Practice ..................................2953. Orders to Target Hispanics .......................................2974. ACSO Checkpoint Policy and Implementation ........................2985. ACSO's Stops and Searches ........................................302a. Particular Stops .............................................302b. Statistical Evidence .........................................304i. Dr. John Lamberth ......................................304ii. Dr. John MacDonald .....................................307(a) Post-Stop Outcome Study ...........................309(b) "Hit-Rate" Study ..................................310iii. Officer Mark Dockery and ACSO Data on Searches Not Incident to Arrest ...............................311iv. Dr. David Banks ........................................312(a) ACSO's Checkpoint Siting ...........................313(b) ACSO's Checkpoint Stops ............................314(c) ACSO's Checkpoint Arrests ..........................315(d) ACSO's Traffic Stops ...............................316
(e) ACSO's Citations ...................................316C. Evidence of Racial and Ethnic Bias Within ACSO .......................3171. Racial and Ethnic Epithets and Jokes .............................3182. Derogatory Emails ................................................319D. ACSO's Supervision and Discipline of Its Officers ....................3221. Supervision ......................................................322a. ACSO's Complaint Policy ......................................322b. ACSO's Review of Stops, Arrest, and Searches .................323c. ACSO's Traffic Stop Data Reporting ...........................324d. ACSO's Training of Its Officers ..............................325e. ACSO's Harassment Prevention Policy ..........................325f. Implementation of Email and Video Filtering Software .........3262. Discipline .......................................................3263. Margo Frasier ....................................................327II. CONCLUSIONS OF LAW .......................................................329A. Motion to Exclude Dr. Lamberth's Testimony ...........................3291. Admissibility ....................................................330a. Testability ..................................................330b. Peer Review ..................................................332c. Error Rates ..................................................332d. General Acceptance ...........................................3342. Credibility ......................................................337B. Motion to Exclude Dr. Banks' Testimony ...............................3381. Dr. Banks' Qualifications ........................................3382. The Admissibility of Dr. Banks' Testimony ........................339a. Dr. Banks' Study of ACSO Traffic Stops .......................339b. Dr. Banks' Analysis of ACSO Checkpoint Stops .................340c. Dr. Banks' Study of ACSO Checkpoint Arrests ..................341d. Dr. Banks' Permutation Test ..................................341C. Motion for Adverse Inference .........................................342D. Motion to Exclude Kenneth Evans' Testimony ...........................345E. 42 U.S.C. § 14141 Claims ........................................3471. Fourteenth Amendment Claim .......................................349a. Express Classification .......................................350b. Facially Neutral Classification ..............................354i. Traffic Stops ..............................................357ii. Checkpoint Placement and Stops .............................358iii. Post-Stop Outcomes .........................................360iv. Searches After Stops .......................................365v. 287(g) Practices ...........................................369vi. ACSO's Culture, Supervision, and Discipline ................3712. Fourth Amendment Claim ...........................................372F. Statute of Limitations ...............................................379III. CONCLUSION ...............................................................380
The United States of America (the "Government") alleges that, from at least January 2007 to the present, Defendant Terry S. Johnson, in his official capacity as Sheriff of Alamance County, North Carolina, engaged in a pattern or practice of discriminatory law enforcement activities directed against Hispanics,
The parties previously filed cross-motions for summary judgment, which the court considered and, following oral argument, granted in part and denied in part. (Doc. 118.)
A bench trial on the merits was conducted from August 12 through 22, 2014. The Government presented twenty-nine fact witnesses and three expert witnesses, and Sheriff Johnson presented sixteen fact witnesses and one expert witness. At the close of the Government's evidence, Sheriff Johnson moved for judgment pursuant to Federal Rule of Civil Procedure 52(c), which the court took under advisement. Following trial, the parties sought to file proposed findings of fact and conclusions of law and requested additional time to do so. They have now submitted them. (Docs. 157, 158.) The case is therefore ready for decision.
Pursuant to Federal Rule of Civil Procedure 52(a), the court enters the following findings of fact — based upon an evaluation of the evidence, including the credibility of witnesses, and the inferences that the court has found reasonable to draw therefrom — and conclusions of law. To the extent any factual statement is contained in the conclusions of law, it is deemed a finding of fact as well.
As explained by the following analysis, and after careful consideration, the court concludes that the Government has failed to demonstrate that ACSO has engaged in a pattern or practice of unconstitutional law enforcement against Hispanics in violation of § 14141.
Alamance County (the "County") lies within central North Carolina and is currently home to over 150,000 residents. See State & County QuickFacts: Alamance County, North Carolina, U.S. Census Bureau, http://quickfacts.census.gov/qfd/states/37/37001.html (last visited June 29, 2015).
The Sheriff contends that the County's recent growth has brought with it increasing crime, including a serious drug trafficking problem with associated drug-related violence. In particular, the Sheriff presented uncontested evidence that major Mexican drug trafficking organizations ("DTOs"), including the Sinaloa drug cartel, have relocated operations to Alamance County, making it a hub for drugs and crime. (Doc. 152 at 109, 112, 114.) According to a 2010 Department of Justice ("DOJ") and Drug Enforcement Administration ("DEA") report, Mexican DTOs "mov[ed] their operations beyond metropolitan Atlanta into rural areas of Georgia, North Carolina, and South Carolina ... to avoid law enforcement pressure in the Atlanta... region." (Id. at 114; see also Def. Trial Ex. 30 at 7.) The DOJ's criminal enforcement division, a sister division of the one bringing the present action, has specifically identified Alamance County as a national concern. (Def. Trial Ex. 30 at 8.) Throughout the time period at issue in this case, as detailed below, the DEA has actively enlisted ACSO's assistance in enforcing the nation's drug laws against drug traffickers in Alamance County.
Mexican DTOs send illegal drugs, such as cocaine, "directly from Mexico" to distribution hubs like Alamance County. (Doc. 152 at 100.) According to one ICE agent, drugs in North Carolina come "predominately from Mexico" and are received "mainly" by Mexican nationals in North Carolina. (Doc. 153 at 24.) If not seized in Alamance County, the drugs then move farther along the DTO distribution chain to cities like Chicago, Illinois, and states like Virginia and South Carolina. (Doc. 152 at 101.) Proceeds from the DTOs' drug transactions are returned to drug trafficking operators in Mexico. (Id.)
Inside Alamance County, DTO "cell heads" run logistics for the distribution chains. (Id. at 116.) DTOs mostly employ family and friends in the United States as drug recipients, and family and friends in Mexico receive drug proceeds sent from the United States. (Id. at 112.) As a result, many American-based DTO cell heads are Mexican citizens with direct ties to Mexico. (Id. at 112, 116.) When DTO cell heads in places like Alamance County are arrested, they are replaced with DTO members from Mexico or the U.S. border. (Id. at 115-16.) Thus, according to DEA Agent Walter Serniak, Jr., while drug users are "not of any particular ethnicity," (id. at 129), greater than 90% of those arrested in Alamance County in connection with drug trafficking are Hispanic. (Id. at 115-16.)
The increased presence of Mexican DTO cell heads in Alamance County has brought an increase in drugs, drug money,
The DEA has conducted a number of raids in Alamance County, which have resulted in seizures of drugs and weapons connected to Mexican DTOs.
United States Interstates 40 and 85 join as a common highway in Alamance County, dissecting the County horizontally at its midsection. The town of Green Level lies just north of the highways and offers an example of the collateral damage resulting from the growing drug trafficking in the County. The Green Level community faced, and continues to face, "a drug problem" from DTOs that has left many residents living in fear. (Doc. 152 at 62-63, 65.) Sandra McCollum, Green Level's town clerk, testified that when "you would go down the streets, you could not get through to get to your home because drug activities was [sic] in the street." (Id. at 63.)
Green Level's mobile home communities, especially the Seamsters and Otter Creek mobile home parks, have been frequent sites of significant illegal drug and criminal activity. (Id. at 65, 67, 71, 75.) The Otter Creek mobile home park has suffered murders, drug activity, and kidnappings. (Id. at 75.) The owner of Seamsters has sought law enforcement help in combatting drug and gang activity in his park. (Id. at 72.)
Starting in 2002, Green Level's council members — all African American — contracted with ACSO for placement of a "substation," which included the assignment of an ACSO sergeant, at Green Level's town hall. (Id. at 63.) Council members also requested increased ACSO policing, which required more frequent patrols and checkpoints (id. at 69), and more frequent inspections of the town's mobile homes by both ACSO and the Alamance County Inspection Department to enforce town ordinances against abandoned trailers being used for criminal activity. (Id. at 68-70.)
By 2010, Alamance County's rising drug trade led the DOJ and the DEA to designate
This is the environment in which Terry Johnson was elected ACSO Sheriff in December 2002 (following a 30-year career with the North Carolina State Bureau of Investigation ("SBI")), a position to which he has since been continuously re-elected. (Doc. 154 at 55-56.) In North Carolina, the position of sheriff is constitutionally-provided for, and a sheriff's office is a separate legal entity from each county. See N.C. Const. Art. VII, § 2; N.C. Gen.Stat. § 162-1; Cranford v. Frick, No. 1:05CV00062, 2007 WL 676687, at *3 (M.D.N.C. Feb. 28, 2007) ("[T]he Office of the Sheriff is separate and distinct from the Board of County Commissioners because a sheriff is elected by the people, not employed by the county." (quoting Little v. Smith, 114 F.Supp.2d 437, 446 (W.D.N.C. 2000)) (internal quotation marks omitted)); Goodwin v. Furr, 25 F.Supp.2d 713, 715-16 (M.D.N.C.1998) (noting that a sheriff is an "independently elected official" and "a county is not liable for the acts of the sheriff and deputies"); Clark v. Burke Cnty., 117 N.C. App. 85, 450 S.E.2d 747, 749 (1994) ("A deputy is an employee of the sheriff, not the county."). ACSO is the largest law enforcement agency in the County, employing approximately 123 full-time deputies and 147 civil employees.
As the head of ACSO, Sheriff Johnson is vested with the authority to set its policies and procedures, which he implements both individually and through his officers. (Doc. 154 at 89; N.C. Gen.Stat. § 162-24.) The Government contends that, since he has taken control, Sheriff Johnson and ACSO have engaged in a pattern and practice of discriminatorily enforcing the law against Hispanics. The Government's evidence as to the various ways in which this was allegedly done is addressed below.
A principal feature of the Government's case rests on its claim that ACSO sought out and used federally-granted immigration authority in a discriminatory manner against Hispanics. (See Doc. 1 ¶¶ 47-51; Doc. 158 at 61-63.) The thrust of the Government's claim is that Sheriff Johnson abused authority granted under Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g), to direct ACSO officers to target and arrest Hispanics so that they could be detained at the Alamance County Detention Center (the "ACDC") and ultimately processed by federal authorities for deportation.
Section 287(g) authorizes the Attorney General to delegate federal immigration enforcement authority to certain State employees. Known as "287(g) programs," these arrangements permit state and local law enforcement officers to investigate, apprehend, and detain aliens in the U.S. See 8 U.S.C. 1357(g)(1). To investigate the possibility of employing a 287(g) program, Sheriff Johnson contacted the Sheriff of Mecklenburg County (Charlotte), North Carolina, who had the first such program in the State, to learn about his experience with it. (Doc. 154 at 157.) That sheriff found it to be the "best crime fighting tool that he had ever been involved with." (Id.) Sheriff Johnson eventually flew to Alabama to observe how the program was implemented there, and, in about 2006, he
According to Sheriff Johnson, the 287(g) program offered a tool to increase safety within the ACDC. (Id. at 81.) Prior to the 287(g) program, ACSO found itself often unknowingly placing rival Hispanic gang members within the same prison cell, causing fights, increasing medical costs, and giving rise to lawsuits. (Id.) Via the MOA, ACSO officers could better identify detainees and coordinate with federal agents who enforced immigration violations. (Doc. 149 at 127-28.) Also, the 287(g) program offered a financial incentive, as ACSO would be paid by ICE for the cost of housing all ICE detainees at the ACDC, irrespective of whether the detainees were originally arrested by ACSO, ICE, or another of the many law enforcement agencies using the ACDC as a jail. (Doc. 147 at 151-52.)
One aspect of the MOA was a "jail enforcement program," by which ACSO officers trained through ICE would receive immigration enforcement certification and once certified, would return to ACSO to enforce federal immigration laws within the ACDC. (Doc. 149 at 127-28.) ICE also stationed its own agents within the ACDC to supervise those 287(g)-certified ACSO officers. (Id. at 138-39; Doc. 152 at 157-58; Doc. 154 at 33-34.) While anyone arrested by ACSO and jailed could be turned over to ICE within the ACDC, who could determine whether they were in the country illegally, the ACDC also served as a detention center for persons ICE and eleven other law enforcement agencies arrested (independently of ACSO) in the surrounding counties. (Doc. 152 at 164; Doc. 154 at 23-24.) In practice, about only one detainee a week was processed through the ACDC's 287(g) program, and the "bulk" of those were persons brought in from ICE's other offices — not from ACSO. (Doc. 152 at 164 ("[T]he actual 287(g) processing[s] were not large numbers.... [T]he bulk of the alien population housed at Alamance County jail actually came in from ICE arrests made by ICE officers or other 287(g) officers in other counties.").) The vast majority of ICE's detainees were from Mexico. (Id. at 166.) Thus, while the Government at trial emphasized the financial incentive to ACSO for arresting and detaining persons who were not in the country legally, the reality was that the vast majority of the ICE detainees held at the ACDC were arrested by someone other than ACSO and were simply housed at the ACDC. As a result, ACSO had no involvement in their identification or apprehension.
Throughout its operation in Alamance County, ACSO's 287(g) program received annual reviews from ICE. (Id. at 148-50.) ICE found it to be "an exemplary unit." (Id. at 149.) In fact, after one review, ICE used ACSO's information as an exemplar to provide to ICE's other 287(g) units. (Id. at 149-50.) A 2011 review from ICE concluded, "The 287(g) program in Alamance County is adhering to the priorities and obligations set forth in the MOA." (Def. Trial Ex. 56 at 6.) The review also acknowledged that, in 2011, "no complaints of any kind have been received by the ACSO or ICE concerning the 287(g) program." (Id. at 5.)
ICE eventually withdrew ACSO's 287(g) MOA in 2012, however, following the complaints that led to the filing of the current lawsuit. (Doc. 149 at 126, 128.)
Early in Alamance County's 287(g) program in 2007, Gloria Fichou, Special
Stationed in both Alamance County and ICE's Winston-Salem office, Deputy Randleman worked as an ICE TFO for approximately one year. (Doc. 149 at 171-73; Doc. 153 at 20.) In addition to his certification as a 287(g) detention officer, he received training as a TFO. (Doc. 149 at 171; Doc. 153 at 20 (8 weeks of ICE training).) Fichou supervised Deputy Randleman, and an ICE special agent would sometimes work with Deputy Randleman as well. (Doc. 153 at 20.) Deputy Randleman's investigations as a TFO required Fichou's authorization. (Id. at 27.) Fichou, however, would occasionally turn over ICE investigations to ACSO as well. (Id. at 25.)
During this time, Deputy Randleman also remained employed by ACSO. (Doc. 149 at 171.) Thus, while a TFO, Deputy Randleman would receive work from both Fichou and Sheriff Johnson, and he would self-initiate investigations, as he had before. (Id. at 172-73, 177.) Any cases assigned to him by Sheriff Johnson were reported to his training officer, with Fichou receiving monthly reports about his ACSO work, but Deputy Randleman spent "more time" helping ICE during his time as a TF0.
While serving as a TFO, Deputy Randleman performed a number of tasks. For one, he would assist in gang roundups. (Doc. 149 at 174.) Organized and coordinated by ICE and the DEA, these are operations in which law enforcement agents execute a number of arrest warrants on certified gang members. (Doc. 147 at 75; Doc. 149 at 174; see also Doc. 152 at 102-03 (stating that the DEA would also run gang roundups in Alamance County).) At ICE's request and prior to executing warrants, ACSO's gang unit would provide ICE's 287(g) officers with a list of certified gang members. (Doc. 147 at 75; Doc. 151 at 124, 139-41.) Both before and after his time as a TFO, Deputy Randleman — who had access to several databases that included North Carolina Department of Motor Vehicle records — would conduct background checks on gang members prior to
Deputy Randleman also worked on numerous identity fraud and theft cases while serving as a TFO. The Government cites one of the cases as evidence of ACSO targeting — an identity fraud case he investigated involving an individual named Marxavi Angel-Martinez. (Id. at 179.) The case arose when an Alamance County employee reported to ACSO that a Hispanic employee at the Alamance County library was receiving maternity benefits and food stamps illegally through another person's Social Security number. (Id. at 179-80, 201-02; Doc. 154 at 86.) ACSO checked the names of the library employees, and only one name stood out as being possibly Hispanic. (Doc. 154 at 87, 102.) Sheriff Johnson asked Deputy Randleman to investigate, and, working with an ICE agent, Angel-Martinez was identified as a suspect. (Doc. 149 at 179-80; Doc. 154 at 87.) The case was referred to federal prosecutors, who later charged Angel-Martinez with Social Security fraud. (Doc. 149 at 201.)
The Government also points to an instance when Deputy Randleman assisted in an identity fraud investigation requested by Alamance County Manager David Smith. (Id. at 181-83; Doc. 154 at 26-28.) Smith asked ACSO Chief Deputy Timothy Britt to verify the Social Security numbers of several newly-hired employees. (Doc. 154 at 27.) Of the approximately fifteen names provided to Chief Deputy Britt, only one was not Hispanic. (Doc. 149 at 182.) Working with Deputy Randleman, an ICE Agent contacted the Social Security Administration with the list of names and learned that one of the names was fraudulent. (Id. at 182-83.)
The Government also cites Deputy Randleman's TFO investigation of a complaint of identity theft raised by Alamance County resident Kay Oliver. (Id. at 183.) Oliver reported to Sheriff Johnson that he was the victim of identity theft, and the Sheriff instructed Deputy Randleman to "look into it." (Id. at 184.) Deputy Randleman ascertained that Juan Ariano Vazquez in Weaverville, North Carolina, was illegally using Oliver's Social Security number. (Id. at 183-85.) Deputy Randleman secured a warrant, arrested Vazquez in Buncombe County (approximately 200 miles away), and brought him to Alamance County to be charged. (Id. at 185-86.) The Government characterizes Deputy Randleman's efforts as an extraordinary measure that reflects an intent to enforce the law more stringently against Hispanics, noting that Oliver had a reputation in the community of being anti-immigrant. (Id. at 189-90.) Deputy Randleman testified, however, that Sheriff Johnson never directed him to make the trip, it was the only occasion as a TFO where he went outside the County to make an arrest, and executing a warrant outside of Alamance County is nevertheless a "part of regular law enforcement." (Id. at 185-86, 203-04.) Ultimately, the U.S. Attorney's Office declined to prosecute the case (for reasons never explained at trial), although the Government never offered any indication that Vazquez's arrest lacked probable cause.
Finally, the Government cites a traffic accident investigation Deputy Randleman conducted while a TFO in 2007 or 2008. (Id. at 191; Doc. 154 at 167-68.) The matter began when Alamance County Commissioner Ann Vaughan came to Sheriff Johnson's office, "raising Cain" following an accident. (Doc. 154 at 76.) She complained that the other driver was a Hispanic man who cut her off in traffic, caused her to hit his car, then left the scene of the accident to refuel. (Id. at 168.) Apparently before he left to put gas in his car, the driver told Vaughn not to call the police when she reached for her phone. (Id. at 168, 172.) This struck a nerve with Vaughan, who told the man, "[I]n this country, we report all accidents," and then called the Burlington Police Department. (Id. at 168.) The officers responded but ultimately declined to cite the other driver for the accident or for apparently having three adults and three children unbelted in the front seat. (Id.)
Vaughan was upset. She showed Sheriff Johnson her accident report and demanded that he do something. (Id. at 168-69.) Sheriff Johnson asked if the driver was in the country illegally, and she responded that a red flag went up because of his urging her not to call the police. (Id.) Sheriff Johnson said, "We are not supposed to do this, but let me see if my man is busy." (Id. at 169.) He summoned Deputy Randleman, showed him a photo of the driver (apparently from a driver's license), and said that the person, who appeared to the deputy to be Hispanic, lived in a mobile home park off North Church Street, an area known to be predominantly Hispanic. (Doc. 149 at 191-92.) Sheriff Johnson gave Deputy Randleman no reason to suspect the driver was an illegal immigrant and simply directed him to "follow up on it." (Id. at 192.)
The Sheriff explains that he was reluctant to get involved because traffic citations within the City of Burlington lay within the jurisdiction of the Burlington Police Department. Nevertheless, Deputy Randleman ran the individual's name through the immigration database, and the search yielded no results. (Id. at 193.) The Sheriff reported to Commissioner Vaughn that the driver had a valid North Carolina driver's license and was not an illegal immigrant. (Doc. 154 at 169-70.) With this, the investigation ended.
The Government characterizes Deputy Randleman's inquiry as an abuse of his TFO authority and evidence of an intent to target Hispanics. While the date of the inquiry was not made clear at trial, if the matter occurred during Deputy Randleman's role as TFO, he had at least apparent authority to investigate the driver's immigration status. It bears noting that Vaughn presented at trial as an outspoken and assertive witness; she is also a political adversary of the Sheriff. The court is persuaded that, but for Vaughn's persistence and will, the Sheriff never would have gotten involved in the inquiry.
In about 2008, an ICE audit revealed an issue with the MOA as to Deputy Randleman's TFO authority. (Doc. 149 at 172; Doc. 152 at 160; Gov't Trial Ex. 58; Def. Trial Ex. 54.) Jill Arndt, ICE supervisor (now retired), had reported a concern about it but had been "getting conflicting information from ICE['s] Office of Investigations" about ICE's ability to use Deputy Randleman as a TFO. (Doc. 152 at 160.) According to Fichou, "there was no clearcut policy in regards to the 287(g) program" at the time she approached Sheriff Johnson to request a TFO. (Doc. 153 at 22.) And Fichou had never questioned Deputy Randleman's authority to operate
Up to and during trial, the Government portrayed Sheriff Johnson's designation of Deputy Randleman as TFO, the deputy's activities as a TFO, and ICE's withdrawal of TFO authority as evidence that ACSO abused its authority under the 287(g) program by engaging in investigations outside the permission granted by the MOA. However, federal ICE agents — called by the Sheriff — made clear that this was not the case. Fichou, Special Agent-in-charge of ICE's regional office over Alamance County at the time, testified credibly at trial that it was she who had approached the Sheriff about the possibility of such an arrangement (Doc. 153 at 18) and that any mistake with regard to the TFO's authority was ICE's, not ACSO's (id. at 21-22). Arndt confirmed this assessment: "I believe it was purely an ICE issue as far as ICE, and don't get me wrong. Nobody did this on purpose. ICE was giving conflicting information; and once it was discovered in the management audit, as it was supposed to, it was fixed." (Doc. 152 at 166.)
Under North Carolina law, county sheriffs' offices bear responsibility for issuing gun permits. See N.C. Gen.Stat. § 14-404. The law specifically requires that county sheriffs verify that "it is not a violation of State or federal law for the applicant to purchase, transfer, receive, or possess a handgun." Id.
Through the duration of the 287(g) program, ACSO used its access to immigration databases to investigate individuals applying for gun permits. (Doc. 149 at 132-33.) While working as a certified ICE agent in the ACDC, ACSO Lieutenant Randy Denham ran searches through these databases following requests from ACSO Majors Shelton Brown and Monte Holland. (Id. at 133, 142-43.) These searches checked criminal history and, because it is a violation of federal law for aliens illegally or unlawfully in the United States to possess a firearm, see 18 U.S.C. § 922(g)(5), immigration violations. (Doc. 149 at 152.) At times, Lieutenant Denham conducted such checks weekly. (Id. at 134.)
The Government correctly contends that the use of any ICE database by ACSO officers (other than by a TFO before such authority was rescinded) for gun application checks exceeded ACSO's authority under the MOA because the applicants were not in ICE custody. Lieutenant Denham did not appear to be aware of that, however, and he maintained that his ICE supervisor was aware of his investigatory background checks and approved them. (Id. at 143.) Fichou and Arndt — both female — denied awareness of the background checks (Doc. 152 at 169; Doc. 153 at 29-30),
The Government does not suggest that the checking of ICE databases in and of itself violated any law, and presumably ACSO officers could lawfully ask ICE to do so in order to discharge their obligation to avoid issuing gun permits to ineligible aliens. The Government's main contention seems to be that all names submitted for background checks sounded Hispanic (Doc. 149 at 134), yet not all applicants were Hispanic, thus evidencing a potentially discriminatory investigative practice. However, the Government elicited no evidence as to the makeup of gun permit applicants or ACSO's procedures for checking such applications. Thus, it is unknown whether ACSO checked all applicants' names for legal status and through some different means determined that the others were U.S. citizens. Although the majors were the officers referring the names to Lieutenant Denham, the Government did not call Major Holland and, when it called Major Brown as a witness, failed to ask a single question about the gun permit background checks.
The Government contends that ACSO changed its arrestee booking procedures to target Hispanics "for heightened immigration enforcement" after entering into the 287(g) MOA. (Doc. 1 ¶¶ 47-51; Doc. 158 at 65-66, 132.) According to the Government, after the start of the 287(g) program, ACSO required that all persons arrested be "fully booked" into the ACDC, subjecting more individuals — namely Hispanics — to questioning about their immigration status. (Doc. 158 at 65, 132.)
The Government relies mainly on the testimony of North Carolina Magistrate Susan Wortinger. (Id. at 61-62, 65-66, 132.) Magistrate Wortinger has served 12 years in her position, having previously been employed by ACSO from 1996 to 2002. (Doc. 149 at 155-56.) Her office is in the ACDC. (Id. at 157.)
According to Magistrate Wortinger, before ACSO participated in the 287(g) program, it only booked felony arrestees into its jail. (Id. at 159-60.) She stated that ACSO's policy changed after implementation of the 287(g) program to require persons arrested for misdemeanors to be booked as well, even if they could pay their fine or the bond. (Id.; see also Doc. 147 at 43-44 (Evans stating that the policy "probably" changed around 2007).) Magistrate Wortinger observed more Hispanics come through the ACDC after the 287(g) program and the change in booking procedure. (Doc. 149 at 162.) She, however, inaccurately believed that the 287(g) program lasted "[m]aybe two years," when it in fact lasted closer to five years. (Doc. 149 at 158; id. at 126, 128; Doc. 154 at 157.) Citing this testimony, the Government contends that ACSO changed its booking procedures following the 287(g) program to check the citizenship of misdemeanor arrestees to facilitate their deportation. (Doc. 158 at 132.) The persuasive evidence at trial, however, conflicts with this account of ACSO's use of the 287(g) program.
Sheriff Johnson changed ACSO's procedures well before implementation of the 287(g) program. North Carolina law permits law enforcement to photograph and fingerprint arrestees, whether or not they
(Doc. 154 at 58.) The new procedure, permitted by North Carolina law, enabled ACSO to properly identify all persons arrested.
The evidence at trial was unclear as to how Sheriff Johnson's photographing and fingerprinting policy affected, if at all, the number of individuals "booked" into the ACDC and subject to 287(g) questioning. After an arrested individual was brought to the ACDC, the arresting officer completed arrest and property sheets. (Doc. 152 at 135-38; see also Doc. 154 21-23.) In doing so, the arresting officer inquired whether the arrestee was a U.S. citizen. (Doc. 152 at 138.) This process was completed "in the prebooking area" where the arrestee went before the magistrate. (Id.)
Then, after a judicial officer (usually the magistrate, but sometimes a judge if not at the ACDC) found probable cause for the arrest, he or she set the arrestee's bond and determined whether the individual could pay the bond so as to be released. (Doc. 152 at 138-39; Doc. 154 at 23-24.) If an arrestee could not meet bond, he or she would proceed to the booking area and there be subject to possible 287(g) questioning depending on the response to the citizenship question provided on the arrest and property sheets. (Doc. 152 at 138-40; see also Def. Trial Ex. 52.) If an arrestee could meet bond, however, there was persuasive evidence that he or she might be able to leave without being subject to 287(g) questioning.
Moreover, there is no evidence as to how many (or few) Hispanics arrested by ACSO were booked into the ACDC and subjected to 287(g) questioning. Certainly, the Government never presented any booking reports or other similar evidence from ICE or ACSO to support such a claim. Rather, ICE witnesses called by ACSO, explained that ACSO's 287(g) officers processed only about one detainee per week at the ACDC through the 287(g) program, and "the bulk" of those detainees actually came from other ICE offices. (Doc. 152 at 163-64.) Thus, in actuality, ACSO officers contributed only infrequently to the number of ICE detainees housed in the ACDC.
To the extent that Magistrate Wortinger observed more Hispanics "come through the jail" after the implementation of 287(g), this observation aligns with the testimony of former ICE Special Agent Jill Arndt. (Doc. 149 at 162.) At trial, she explained,
(Doc. 152 at 164.) Chief Deputy Britt added that eleven "contributing" State law enforcement agencies also used ACSO's facilities for booking. (Doc. 154 at 24; see also Doc. 152 at 138-40 (Sergeant Dan Cubino testifying that, no matter the jurisdiction, an arrestee was taken before the magistrate).) Thus, Magistrate Wortinger's observations of increased Hispanics at the ACDC are consistent with Arndt's account of the 287(g) program's operations but reflect an apparent misunderstanding of the reasons for the increased traffic. The increase in traffic was predominantly caused by some combination of ICE's arrests and those of the eleven law enforcement agencies, other than ACSO, using the ACDC.
Lastly, Magistrate Wortinger testified that, during the operation of the 287(g)
Officer Anthony denies that he ever referred to a personal collection to Magistrate Wortinger or that he kept any seized items permanently in his possession. (Doc. 152 at 85-86.) The court credits Magistrate Wortinger's testimony. Officer Anthony's conduct on this occasion was a violation of ACSO's evidence collection policy, which required that all documents seized from detainees be preserved in the evidence locker.
In 2008, as a result of publicity about the 287(g) program, a grass-roots collection of individuals in Alamance County formed Fairness Alamance to air concerns about what the group believed was ACSO's unfair treatment of Hispanics. (Doc. 151 at 143-44.) Members attended Alamance County Commissioners' meetings, held their own meetings, and organized a candlelight vigil in support of their views. (Id. at 148-50.)
In response to the group's expressed concerns, Sheriff Johnson invited its members to the ACDC in 2008, provided a tour of the facility, outlined the 287(g) program, and addressed members' questions. (Id. at 151.) In February 2009, the Sheriff also gave a presentation on ACSO's traffic stops at an Alamance County Commissioners' public meeting. (Id. at 151-52.) The presentation provided information based on the traffic stop data ACSO sent to North Carolina's SBI. (Id.) In his presentation, Sheriff Johnson invited citizens to personally examine the traffic stop data on the SBI's website. (Id. at 152-53.)
A leader of Fairness Alamance, Laura Roselle, who served as Professor of Political Science and Policy Studies at Elon University, took the Sheriff up on his invitation. (Id. at 142, 153.) On February 16, 2009, following her review, Professor Roselle emailed Sheriff Johnson, hoping to discuss the SBI's data. (Id. at 154-55.) Sheriff Johnson did not respond to her email, and so she asked him about the data and ACSO's traffic stop forms at the next County Commissioners' meeting. (Id. at 155.) The Sheriff incorrectly responded that he did not have the forms and that they were in Raleigh. (Id. at 154-55.) Ultimately, Professor Roselle learned that the SBI's data contained four times as many citations as traffic stops; although, she did not realize that ACSO's citations also include non-traffic related offenses. (Id. at 158, 182.) Upon finding this discrepancy, and rather than following up with the Sheriff to notify him of a potential problem, Professor Roselle instead met with a County Commissioner and went to a local newspaper to report what she considered
After the news story went to print, ACSO acknowledged that it had independently found a "glitch" in its computer software, causing the underreporting of traffic stops. (Id.) ACSO had been in the process of changing its software for the third time in a year. (Doc. 154 at 20.) ACSO informed the SBI of its underreporting, found a new software provider to correct the problem, and instituted administrative review over its traffic-stop data. (Id.) After these changes, Professor Roselle's requests for corrected data went unanswered. (Doc. 151 at 161.)
In addition to traffic stop data, Professor Roselle made a request to ACSO for information on the implementation of 287(g) — specifically for ICE's detainee records.
The Government offers this encounter as evidence of anti-immigrant animus by the Sheriff. This is an over-read of the situation. Professor Roselle presented at trial as a deeply-motivated advocate who was personally opposed to what she perceived as anti-immigrant efforts by ACSO, distrusted Sheriff Johnson, and was zealous in her persistence.
The Government contends that Sheriff Johnson orders officers to arrest Hispanics, rather than to cite or warn them. (See Doc. 1 ¶¶ 5, 29; Doc. 158 at 2-3, 9-14.) The Government's proof on this point relies on several witnesses and on statistical evidence (largely through Dr. MacDonald, its expert criminologist and statistician, discussed below).
The Government presented three witnesses who testified that, during one ACSO staff meeting, and perhaps two, Sheriff Johnson directed officers to arrest Hispanics stopped for traffic violations. Kenneth Evans, former ACSO chief deputy, testified that, at a monthly staff meeting (normally held the second Wednesday of every month) around 2007, Sheriff Johnson told officers that if they "went to an Hispanic's house or [they] stopped one for a traffic violation or if it was a violation, that [they] were to bring them to jail and not write a citation." (Doc. 147 at 45.) Evans said he did not pass the instruction on to officers under his command, however, "[b]ecause I knew it was wrong," and there is absolutely no evidence he ever carried it out. (Id. at 45-46.) Similarly, Officer Roger Lloyd testified that at a
No party examined any of these three witnesses as to the context of the statements, but Sheriff Johnson did provide some context and presented evidence challenging the credibility of all three. The Sheriff had fired Officer Lloyd in 2009 for lying to an Alamance County Assistant District Attorney. (Doc. 147 at 162, 171-75; Doc. 154 at 43-44; Def. Trial Ex. 67.) He had also fired Evans' wife and nephew from ACSO and demoted Evans upon taking office. (Doc. 154 at 73-74.) And, Cole had supported Sheriff Johnson's opponent, Ron Parrish, in the most recent election. (Doc. 151 at 6.)
Nine ACSO employees — some of whom were offered by the Government — testified that they had never heard Sheriff Johnson give an instruction to single out Hispanics for arrest or to do so irrespective of whether they could show identification. (See Doc. 150 at 30, 134, 157, 184; Doc. 151 at 136; Doc. 152 at 175-76, 215; Doc. 154 at 4, 37.) Sheriff Johnson similarly denied ever doing so. (Doc. 154 at 56-57.) Rather, the Sheriff stated that his command left all arrests to the officer's proper discretion, so that "if" an officer arrested an individual stopped without any identification, the individual should be brought in for processing. (Id. at 57-58.) Lieutenant Allen, who attended many of the monthly meetings between 2007 and 2013 and recorded his notes in a binder, never heard any statement singling out Hispanics for arrest, and his contemporaneous notes, albeit not exhaustive, reflect no instruction to support the claimed statement. (Doc. 152 at 215-18; Doc. 153 at 7-9.) ACSO Detective Carlos Rossi, who is Hispanic and has been with ACSO for five and a half years, never heard the Sheriff or anyone else discriminate against or target Hispanics. (Doc. 153 at 212; Doc. 154 at 4.)
There was no evidence of a written ACSO policy. ACSO's own evidence, while not entirely consistent, did offer some context for such claims, however. ACSO Chief Deputy Britt testified that he understood ACSO's policy to be that an officer was to arrest any stopped individual whom the officer cannot identify and who does not have a driver's license or other method of identification.
However, the more accurate articulation of what was actually implemented by ACSO officers is the following: if an officer stopped an individual without valid personal identification who cannot be reasonably identified, the officer may arrest the individual at the officer's discretion, assuming the arrest is for an otherwise arrestable offense. Captain Kimberly Wilson, head of ACSO's patrol division, stated that "[a]n officer is to use his discretion" when facing an individual stopped without any identification. (Doc. 150 at 136, 157.) When asked about Sheriff Johnson's arrest policy, Captain Wilson reaffirmed, "I expect [officers] to use their discretion, their sound discretion." (Id. at 157-58.) Major Shelton Brown — head of operations, which includes the patrol division — echoed Captain Wilson's reiteration of the arrest policy. (Id. at 165-66.) Major Brown testified that officers making a traffic stop had sole discretion to warn verbally, warn in writing, cite, or arrest. (Id. at 173-74.) He further maintained that complete officer discretion remained following a traffic stop, "even if the driver doesn't have a valid driver's license." (Id. at 173-74.) In sum, the officer "make[s] the choice" to arrest. (Id. at 173.) All of this is consistent with Sheriff Johnson's articulation of ACSO's policy, which appears to comport with N.C. Gen.Stat. § 15A-502.
As to the statements attributed to Sheriff Johnson, it is difficult to accept that the Sheriff made them as portrayed, given the lack of context offered for them and the number of ACSO officers who stated credibly that they never heard them. Had the Sheriff made these statements as characterized, it is implausible that an officer or employee (some of whom are Hispanic) would not have questioned his statements and complained. This is especially true in light of the Government's evidence that all orders of the Sheriff were expected to be obeyed and that all three individuals who claimed to hear such a directive universally testified that they never followed it.
The Government's complaint alleges that during a staff meeting after January 2007, Sheriff Johnson yelled "bring me some Mexicans" while banging on the table, and on another occasion instructed his staff to "go out there and catch me some Mexicans." (Doc. 1 ¶ 27(a)-(b).)
At trial, the first claim was supported by Officer Lloyd, who testified that he never heard the Sheriff use the word "Mexicans" but heard him say at one unidentified staff meeting: "bring me Hispanics." (Doc. 147 at 153-54.) In eliciting this statement, the Government made no effort to provide any context, and none was given. There was no testimony about banging on the table, and no other witness supported Officer Lloyd's claim. Sheriff Johnson denied ever making this statement. (Doc. 154 at 57-58.) The court is doubtful that the claimed statement was made, especially in the unsupported context the Government contends.
As to the second claim, the Government presented testimony from two former ACSO officers. In one instance, according to Corporal Adam Nicholson, Sheriff Johnson once said, "Go get the Mexicans."
This understanding is consistent with the testimony of Sergeant Christopher Crain, the Government's other witness, who worked with Corporal Nicholson and recalled an incident when Johnson said, "go get those Mexicans." (Doc. 151 at 132.)
The persuasive evidence is that Sheriff Johnson stated "[g]o get those Mexicans" or "the Mexicans" in reference to a specific Mexican gang then under ACSO investigation for criminal activity. It does not indicate that the Sheriff ever directed his deputies to arrest individuals simply because they were from Mexico or were Hispanic.
The Government contends that ACSO targets Hispanics through its enforcement of vehicle checkpoints. (Doc. 1 ¶¶ 41-46; Doc. 158 at 139-46.) ACSO has a written checkpoint policy in its internal policy manual which outlines the purposes and procedures for its checkpoint operations.
The policy provides for three permissible purposes or types of checkpoints: "standard"; "informational"; and "special operations." (Id. at 2-4; Doc. 154 at 104-05.) Standard checkpoints were the most commonly used and aim to "determine compliance with motor vehicle laws," such as "verification of drivers' licenses, vehicle registration checks, insurance checks, seat belt compliance checks[,] and driving while impaired checks." (Gov't Trial Ex. 113 at 2; Doc. 150 at 82.) To set up a standard checkpoint, the policy states that the checkpoint "shall be approved, in writing, by a Sheriff's Office supervisor or their designee." (Gov't Trial Ex. 113 at 2.) For standard checkpoints, supervisors must complete ACSO's "Checking Station Authorization Form." (Id.) Informational checkpoints generally seek "motorists' assistance in solving a crime" and require supervisor approval — written or unwritten — prior to setup. (Id. at 3 (stating that approval must be made "in advance").) Once in place, standard and informational checkpoints must "provide for the stopping of every vehicle." (Id. at 1.) Special operations checkpoints focus on "the apprehension of a suspect who poses a danger to life and property or the rescue of a hostage or abducted person" and, under the policy, do not require the stopping of every passing vehicle. (Id. at 1, 3-4.)
ACSO's checkpoint policy does not require officers to complete a stop form — a North Carolina SBI form filled out by ACSO officers following a traffic stop — for every vehicle passing through a checkpoint, presumably for practical logistical reasons. (See Gov't Trial Ex. 59.) Instead, the policy explicitly ensures that only those vehicles physically detained at a checkpoint will require the completion of a stop form. For standard checkpoints, the policy does not require retention of any driver information, and, only after reasonable suspicion is found can an officer detain a driver for a reasonable time. (Id. at 2-3.) For informational checkpoints, the policy prohibits ACSO officers from asking for drivers' licenses or any other documentation. (Id. at 3.) Finally, for special operations checkpoints, the policy does not oblige the checking of driver information, nor does it even require that every vehicle passing through the checkpoint be stopped. (Id. at 1, 3-4.) Therefore, at checkpoints, ACSO officers fill out stop forms when an officer detains an individual beyond the initial physical stop.
ACSO Captain Kimberly Wilson reviews checkpoint paperwork filled out by ACSO officers. (Doc. 150 at 151; see also Gov't Trial Ex. 113 at 2 (requiring completion of "Checking Station Authorization Form" for standard checkpoints).) She believes she would "notice" if officers conducted "checkpoints in the same or similar locations repeatedly." (Doc. 150 at 151-52.) Major Shelton Brown confirmed that she performed this review. (Id. at 181-82.)
ACSO conducted at least four hundred and thirty-five checkpoints in the County from 2009 through 2012.
There is some indication that ACSO's checkpoint policy was not uniformly followed insofar as obtaining supervisor approval. Lieutenant Allen stated that individual officers under his supervision would select the time and location of checkpoints. (Doc. 153 at 4.) Another officer, Officer Anthony, stated that his traffic unit — which consisted of supervisors Corporal Ray and Sergeant Wilkerson — would select checkpoints over dinner. (Doc. 147 at 209-10. But see Doc. 148 at 20-22 (Officer Anthony noting that he would receive written checkpoint approval after the checkpoint operation); Doc. 150 at 181 (Major Brown observing that approval for a checkpoint can be verbal and with written approval coming afterwards).)
However, the vast majority of checkpoints were conducted within the guidelines of ACSO's checkpoint policy. (Gov't Trial Ex. 113; Doc. 154 at 104-05.) Most officers testified as to their performance of standard checkpoints. For example, Lieutenant Mark Hoover — a patrol supervisor — explained that ACSO's checkpoints are "generally ... for your ... driver's licenses or registration or insurance." (Doc. 150 at 9; see also Doc. 148 at 22-24 (Officer Anthony similarly described the general purpose of standard checkpoints.).) He further testified, "The purpose of a checkpoint, [is] to check validity of driver's license, registration, insurance." (Doc. 150 at 27-28; see also id. at 10.) Officer Bobby Culler — a North Carolina highway patrolman — similarly recalled performing only a number of "traffic check, drivers check" checkpoints in conjunction with ACSO. (Doc. 152 at 171-72.) Deputy James Conklin echoed that the "purpose of setting up" standard checkpoints is "motor vehicle violations." (Doc. 150 at 82; see also id. at 90 ("We check driver's license and registrations.... We don't set them up specifically for drugs. If we stop a vehicle and either smell or see something, that would indicate to us we move forward.").) Similarly, Sergeant Crain testified that the checkpoints he conducted "ensur[ed] compliance with North Carolina motor vehicle law primarily." (Doc. 151 at 112-13.) Similarly, Sheriff Johnson described informational checkpoints as attempts "to get information on the crime" or individuals committing crime. (Doc. 154 at 149-50.)
The Government characterizes ACSO's use of and selection of location for some checkpoints as evidence of improper purpose. For example, the Government points to testimony of Deputy Conklin and Lieutenant Hoover that they considered checkpoints to be a form of "general law enforcement." (Doc. 158 at 142-44.) Such testimony was generally elicited by the Government through leading questions and was generally clarified on cross-examination as merely the deputies' shorthand for a "standard" checkpoint. (See, e.g., Doc. 148 at 22-24 (Officer Anthony clarifying that he participated in standard checkpoints — not checkpoints for drugs — but, if he saw drugs, would take further action); Doc. 150 at 33-34 (Officer Hoover clarifying that ACSO runs checkpoints for the purpose of observing "driving violations"); id. at 89-90 (Deputy Conklin stating that ACSO does not "set [checkpoints] up specifically for drugs" but rather for motor vehicle violations).) The Government also argues that evidence that ACSO located checkpoints in high crime areas indicates they were improperly used for generalized law enforcement. (See Doc. 151 at 113-14 (pointing to Sergeant Crain's deposition testimony that "[y]ou fish where the fish are"); Doc. 154 at 106 (Sheriff Johnson's testimony that he approves of placing
Of the over 400 checkpoints conducted, the Government presented evidence relating to four.
Second was the previously-mentioned 2007 meeting at ACSO between Corporal Nicholson, Sergeant Crain, Sheriff Johnson, and the owner of the Rocky Top Mobile Home Park. This was the meeting when the Sheriff told Corporal Nicholson to "get me those Mexicans," referring to the Bandidos gang committing crimes in the park. (Doc. 147 at 77; Doc. 154 at 69-70.) As a result of the meeting, Corporal Nicholson took it upon himself to conduct a standard license checkpoint, but he performed no arrests, wrote no citations, and filled out no traffic stop forms. (Doc. 147 at 89, 92.)
Third, three former ACSO officers offered testimony concerning a checkpoint on Highway 49 one-half mile from the Seamsters mobile home park, which is predominantly Hispanic. (Doc. 147 at 29-30, 47, 155.) Sheriff Johnson asked Officer Lloyd to set it up, and it was the only checkpoint the Sheriff asked of him. (Id. at 155.) Two other ACSO officers — Kenneth Evans and Steven Perry — were among those working the checkpoint, but as van drivers to transport arrestees to the ACDC and not as interdiction officers. (Id. at 28-29; 46.) According to Officer Lloyd, the Sheriff told him that "if we had Hispanics coming through the checkpoints that was [sic] NOL [No Operators License] or driving revoked, we was [sic] to arrest them." (Id. at 155.) Officer Lloyd,
Several ACSO officers deny this account of the checkpoint. Principally, Sheriff Johnson denied he was present and testified that he never gave such an order to arrest Hispanics. (Doc. 154 at 56.) Chief Deputy Britt, who lives in the general vicinity of the checkpoint, testified that he recalled only a checkpoint that took place after a series of break-ins in the area and that it was actually informational only. (Doc. 154 at 24-25.) According to him, its purpose was simply to inform the community and ask if they knew anything about the break-ins. (Id.) And because it was only informational, he stated, ACSO officers performed no arrests or citations. Indeed, while ACSO maintained citation and arrest forms, there was no record that either occurred at the checkpoint. (Id. at 25.) He also denied that Sheriff Johnson was present at that checkpoint. (Id. at 26.) Finally, Officer Culler, who was a North Carolina Highway Patrol officer from 1983 to 2011, credibly acknowledged conducting checkpoints with ACSO as a "multi-agency" effort, including at Highway 49, and never knew Sheriff Johnson to use racial slurs or discriminate against anyone. (Doc. 152 at 171-74.)
Fourth, Officer Lloyd testified during the Government's direct examination that, while preparing to assist at a checkpoint at the predominantly Hispanic Rocky Top mobile home park, then-Chief Deputy McPherson initially told him that Sheriff Johnson had said that any Hispanics driving without a driver's license or driving with a revoked license should be arrested. (Doc. 147 at 156-58.) However, after Officer Lloyd and a few others sought clarification, Chief Deputy McPherson later arrived at the checkpoint, having consulted with Sheriff Johnson, and reported back that the Sheriff meant the instruction for everyone and "didn't mean just Hispanics." (Id. at 158-59.)
The Government's complaint contains broad allegations that ACSO discriminatorily stops Hispanics without reasonable suspicion, alleging several "[e]xamples of such incidents." (Doc. 1 ¶ 37.) By the time of trial, however, the vast majority of these instances never materialized, with the Government citing evidence as to only one of those alleged instances — a stop that resulted in no arrest or citation. Cf. Floyd v. New York City, 959 F.Supp.2d 540, 624-58 (S.D.N.Y.2013) (finding multiple detailed instances of suspicionless stops or frisks of African-Americans in Fourteenth Amendment selective law enforcement case). Evidence of two other stops was offered at trial, but the Government makes no reference to either of these in its post-trial
First, at trial, the Government questioned ACSO Deputy James Conklin, a law enforcement veteran of forty-one years, about his stop of a van at night on Interstate 40 "a few years ago." (Doc. 150 at 86.) The deputy stopped the van for impeding traffic because it was driving 20 miles per hour below the posted 65 mile per hour speed limit.
Second, the Government offered testimony from a former Assistant U.S. Attorney, Arnold Husser, who primarily handled immigration-related cases and worked on hundreds of them over his career. (Doc. 148 at 190-91, 198.) Husser handled approximately two dozen immigration cases from Alamance County. (Id. at 198.) Of those, he declined to prosecute two cases and described only one, which he characterized as a "bad stop" because the ACSO officer stopped a car after it switched lanes several times. (Id. at 191-93.) Husser remembered that the driver was an alien but could not recall whether he was Hispanic. (Id. at 193, 197-98.) Husser's concern at the time was that the stop was improper "no matter who the driver was." (Id. at 194.) He noted, however, that during his involvement with ACSO as an Assistant U.S. Attorney, he never observed evidence that its deputies racially or ethnically profiled Hispanics. (Id. at 196.)
Finally, the Government elicited testimony from Jose Luis Arzola, Jr., a Hispanic man living in Burlington, North Carolina, which lies within Alamance County. Arzola has been stopped by an ACSO deputy approximately three times in the ten years he has lived in the County. (Doc. 147 at 184.) He has received traffic citations, but he "usually" did not get an explanation for the stop reason until he examined the ticket. (Id. at 191.) He did not maintain that any citation was unwarranted. In 2009 or 2010, an unspecified ACSO deputy stopped Arzola while driving on a highway near Green Level. (Id. at 185.) Arzola was not aware that he had
The Government's trial evidence of discriminatory targeting of Hispanic drivers was presented through an observational benchmark study involving statistical analysis performed by Dr. John Lamberth. Dr. Lamberth is the head of the Lamberth Consulting firm in West Chester, Pennsylvania. (Doc. 148 at 28.) Lamberth Consulting focuses on assisting police departments to identify potentially discriminatory targeting. (Id. at 31.) The firm's clients span several states and include twenty to twenty-five law enforcement agencies. (Id. at 32.) As part of the firm's work, Dr. Lamberth also serves as an expert witness in litigation. (Id. at 31.)
Prior to starting Lamberth Consulting in 2002, Dr. Lamberth was a tenured professor and chair of the department of psychology at Temple University. (Id. at 29-30.) He holds a master's degree and Ph.D. in social psychology. (Id. at 28.) During his time as a professor, Dr. Lamberth taught a number of psychology courses and published empirical analyses relating to the criminal justice system, specifically concentrating on traffic enforcement and racial or ethnic disparities. (Id. at 30-31.) The Government thus offered Dr. Lamberth as an expert in studying patterns of traffic enforcement. (Id. at 37.) Sheriff Johnson does not dispute Dr. Lamberth's expert qualifications but challenges admission of his opinions under Federal Rule of Evidence 702. (See Doc. 127.) Those challenges will be addressed in the court's conclusions of law.
The Government retained Dr. Lamberth to perform an analysis of ACSO's citation practices to measure for potential patterns of traffic law enforcement.
Dr. Lamberth selected three Alamance County roads for his study: Highways 49, 70, and 87. (Id. at 45.) Highways 49 and 87 are two-lane roads, and Highway 70 is a mix of two-lane and four-lane roadways. (Id.) The speed on those highways varies from 25 to 50 miles per hour. (Id.) The highways also cut through both urban and rural areas. (Id. at 45-46.) In 2012, Dr. Lamberth set up a total of 22 sites at some unspecified distance off of those three highways to observe traffic.
Dr. Lamberth employed two persons — Richard Rivera and Sabino Valdez — to conduct the traffic survey. The two sat in a vehicle facing oncoming traffic for approximately three hours at a time. (Id. at 64, 67.) The three-hour sessions occurred fifteen times on each of the three highways and occurred between 7:00 a.m. and 1:00 a.m. during the spring and fall of 2012. (Id. at 67-68, 84, 87.) In total, the surveyors spent 135 hours making observations of some fifteen thousand drivers. (Id. at 67, 175.)
Rivera is a former New Jersey state police officer. (Id. at 70, 188.) No information on Valdez's background was provided, and neither surveyor testified at trial. Both are Hispanic and have worked with Dr. Lamberth in prior studies. (Id. at 70-71, 77.) Rivera made the "vast majority" of observations, with Valdez assisting him at some unknown frequency if there was "enough traffic to merit" two observers. (Id. at 61, 175-76.) Otherwise, Valdez's role was limited to recording Rivera's observations. (Id. at 61, 70-71, 175-76.) The surveyors identified drivers who "appeared to be" or "looked" Hispanic. (Id. at 181.) Dr. Lamberth provided no description, criteria, or standard used by the surveyors to identify someone they believed to be "Hispanic" other than "if they thought someone looked Hispanic."
In an effort to verify the accuracy of Rivera and Valdez's ethnic observations, Dr. Lamberth claims to have calibrated the surveyors' "inter-rater reliability." (Id. at 56.) Inter-rater reliability testing was presented as a method used in published, peer-reviewed journals to assess the reliability of visual reliability test is to determine both how the surveyors identify individuals' ethnicities and the reliability of those identifications. (Id. at 56-57.) The test compares the observations of multiple observers to ascertain how often their perceptions agree. (Id. at 56, 61.) Dr. Lamberth prefers that the observers agree on
In addition to observing ethnicity, the surveyors also endeavored to identify those drivers who violated a North Carolina traffic law in any regard. The surveyors attempted to observe every traffic law violation (id. at 72, 179-80), so no distinction appeared to have been made as to the degree of the violation (e.g., more serious speeders were not distinguished from those slightly exceeding the speed limit). Nor was any testing done to confirm the accuracy of the surveyors' abilities to identify traffic law violations, but both surveyors were apparently "familiar with" North Carolina traffic laws, according to Dr. Lamberth. (Id. at 72.) Rivera also used a radar device to identify speeding violations. (Id.)
Using Rivera and Valdez's observations of ethnicity and traffic law violations, Dr. Lamberth purported to create a benchmark for each of the three highways. (Id. at 78.) After initially identifying Hispanic violators, Dr. Lamberth weighted the benchmark based on the incidence of citations at a given location. (Id. at 63-64, 79.) Put differently, Dr. Lamberth weighted the observed proportion of Hispanic violators at a given location by the number of ACSO citations at that location. (Id. at 79-80.) In doing so, he provided no testimony as to how he determined which citations occurred at which survey location. This weighting aimed to account for different rates of violations across the three surveyed highways. (Id. at 79-80.)
Following the observational study and weighting based on survey location, Dr. Lamberth calculated the benchmarks identifying the percentage of Hispanic violators on the surveyed highways. For Highway 49, he concluded, the weighted percentage of Hispanic violators was 4.17%, meaning that, of the total drivers observed on this road, 4.17% were both Hispanic and violated a traffic law. (Id. at 103-04.) On Highway 70, the weighted percentage was 4.34%. (Id. at 107.) Highway 87's weighted percentage was 2.71%. (Id. at 106.)
Dr. Lamberth used these weighted percentages of Hispanic violators as benchmarks to compare against ACSO's actual citation practices. To do this, he gathered all of the actual citations issued as a result of traffic stops on Highways 49, 70, and 87.
ACSO's citation database lacks information identifying the ethnicity of the individual cited. (Id. at 90.) To attempt to address this problem, Dr. Lamberth conducted a "surname analysis." (Id. at 90-91.) The basic assumption of surname analysis for this case is that individuals with particular surnames "tend heavily to be Hispanic." (Id. at 90.) Operating on this premise, Dr. Lamberth took the names provided on ACSO citation forms and estimated the probability that those individuals would self-identify as Hispanics. (Id. at 91.) To do this, he used probabilities developed by the U.S. Census Bureau that estimated whether a person with a given surname would self-identify as Hispanic. (Id. at 91-92.) Then, he took each group of names provided in ACSO's citation database that had an associated U.S. Census Bureau probability and multiplied each group of names by its associated probability.
Using this information, Dr. Lamberth calculated estimates of the percentage of citations issued to Hispanics for each highway. (Id. at 94-95.) According to Dr. Lamberth, the surname analysis estimated that 20.77% of ACSO's citations on Highway 49 were issued to Hispanics. (Id. at 104.) For Highway 70, 24.45% of ACSO citations were given to Hispanics. (Id. at 107.) And, for Highway 87, 15.39% of ACSO citations were issued to Hispanics. (Id. at 106.) Dr. Lamberth calculated an error rate for these estimates between 3% and 5%, noting it was "bidirectional," meaning that the estimates may slightly undercount or overcount the number of Hispanics receiving citations. (Id. at 97-98.)
With the benchmarks from the observational study and the estimates from the surname analysis, Dr. Lamberth calculated "odds ratios" for each highway. (Id. at 33.) Dr. Lamberth's odds ratios sought to measure the likelihood that a Hispanic would receive a citation compared to a non-Hispanic. (Id. at 33, 39-40.) The odds ratios reflect Dr. Lamberth's comparison of his benchmarks to his surname analysis estimates of the citations received by Hispanics on the three Alamance County highways. For example, an odds ratio of 2.0 means that the subgroup analyzed is twice as likely to be cited as compared to an individual outside the sub-group. (Id. at 34.)
Here, the odds ratios were 6.0 for Highway 49, 7.13 for Highway 70, and 6.5 for Highway 87. (Id. at 104, 106-07.) Dr. Lamberth testified that each of those odds ratios was statistically significant. (Id. at 104-08.) He also conducted this same analysis for the intersection of Graham-Hopedale Road and Apple Street Extension in Alamance County. (Id. at 50-51, 108.) The resulting odds ratio for that intersection, which he said was statistically significant, was 12.73. (Id. at 108-09.) From these numbers, Dr. Lamberth ultimately opined that ACSO cited Hispanics at a much higher rate than the rate at which they violated traffic laws. (Id. at 39.)
The Government also presented expert testimony by Dr. John MacDonald as to ACSO's law enforcement practices after
Beyond his academic work, Dr. MacDonald has served as a consultant for several law enforcement agencies to analyze their policing activities. (Id. at 8.) His consulting work included research on identifying patterns of racial and ethnic disparities in stops and arrests, police use of force, and the effectiveness of certain law enforcement policies. (Id. at 9.) This research also involved statistical analysis. (Id.) The Government offered Dr. MacDonald as an expert in criminology and statistical analysis. (Id. at 10.) Sheriff Johnson does not dispute Dr. MacDonald's expert qualifications.
In this case, Dr. MacDonald conducted two studies seeking to identify racial and ethnic disparities in the outcomes of ACSO traffic stops. (Id. at 11-12.) First, Dr. MacDonald examined the following outcomes occurring after ACSO traffic stops: (1) citation; (2) arrest; (3) written warning; (4) verbal warning; and (5) no enforcement action (hereafter "post-stop outcomes"). (Id.) Second, he performed an analysis of ACSO's searches following a traffic stop and the rate at which those searches yielded illegal contraband (hereinafter "hit rates"). (Id. at 40.)
For both studies, Dr. MacDonald relied exclusively on ACSO's traffic stop data from approximately June 2008 to October 2013.
Sheriff Johnson does not dispute the admissibility of Dr. MacDonald's testimony on either study, but he challenges the inferences the Government seeks to draw from it. The court finds Dr. MacDonald's
In his first study examining post-stop outcomes, Dr. MacDonald performed two comparisons. First, he calculated a "raw" percentage for each of the five post-stop outcomes and separated his results between Hispanics and non-Hispanics. (Doc. 149 at 19-20.) He then performed a "controlled comparison" for each of the five post-stop outcomes, comparing Hispanics and non-Hispanics, while controlling for the initial reason for the traffic stop.
Dr. MacDonald did not, however, control for the reason officers issued citations or made arrests following a stop. That is, his analysis did not attempt to determine whether any observed differences in the arrest and citation records for Hispanics and others could be explained by the reason a person was arrested or cited. (Doc. 155 at 41 (stating that, under his study, "you wouldn't know the type of arrest, charge, or the type of citation").) Dr. MacDonald acknowledged that, by not controlling for the reason for citation and arrest, his post-stop outcome study lacks "a layer of context[]." (Id. at 42.)
Dr. MacDonald's comparisons demonstrated statistically significant differences between Hispanics and non-Hispanics for each post-stop outcome. (Doc. 149 at 21-40.) First, comparing the post-stop outcome of citations, Dr. MacDonald found that 55.8% of stopped Hispanics received a citation versus 32% of stopped non-Hispanics. (Id. at 21-22.) After controlling for stop reason, Dr. MacDonald's study showed that a stopped Hispanic is 146% more likely to receive a citation relative to a stopped non-Hispanic. (Id. at 25-26.) Second, as to arrests, the post-stop outcome study revealed that 11.9% of stopped Hispanics were arrested as compared to 6.2% of stopped non-Hispanics. (Id. at 29.) Dr. MacDonald's controlled comparison of arrests indicated that a stopped Hispanic is 52% more likely to be arrested than a stopped non-Hispanic. (Id. at 30.) Third, for the post-stop outcome of written warnings, Dr. MacDonald found that 5% of stopped Hispanics received written warnings relative to 9.5% of stopped non-Hispanics. (Id. at 34-35.) Controlling for stop reason, Dr. MacDonald's comparison indicated that stopped Hispanics were 44% less likely than stopped non-Hispanics to receive a written warning. (Id. at 35-36.) Fourth, for verbal warnings, the post-stop outcome study demonstrated that 22.3% of stopped Hispanics received a verbal warning versus 43.5% of stopped non-Hispanics. (Id. at 32-33.) In his controlled comparison of verbal warnings, Dr. MacDonald's study showed that stopped Hispanics were 55% less likely to receive a verbal warning than stopped non-Hispanics. (Id. at 33.) Fifth, as to the post-stop outcome of no action taken, the post-stop outcome study revealed that 4.8% of stopped Hispanics received no action as compared to 8.6% of stopped non-Hispanics. (Id. at 36-37.) The controlled comparison indicated that stopped Hispanics were 63% less likely
Dr. MacDonald's second study was of "hit rates," which analyzed the rate at which searches performed subsequent to a traffic stop yielded contraband. (Id. at 40.) This analysis had two major components. First, Dr. MacDonald determined the rate at which stopped Hispanics and stopped non-Hispanics were searched. He concluded that 16% of stopped Hispanics were searched as compared to 12.9% of stopped non-Hispanics. (Id. at 41.) These figures are statistically significant. (Id.)
Second, Dr. MacDonald examined the "hit-rates" for searches performed during those traffic stops. First he limited his inquiry to the discovery of drugs, because drugs were "the most common contraband found." (Id. at 43-44.)
Because these figures included searches conducted incident to arrest (which are generally non-discretionary searches conducted as a matter of course), Dr. MacDonald testified that he controlled for that as well as for whether a passenger was searched. (Id. at 46-47.) He found that searches of stopped Hispanics were 80% less likely to uncover drugs relative to stopped non-Hispanics. (Id.) He reported that these figures are statistically significant. (Id. at 46-48.)
In summing up his conclusions, Dr. MacDonald opined that his "hit rate" analyses "suggest that there is a different standard, a lower threshold of suspicion or probable cause [being applied] in searching Latinos compared to non-Latinos." (Id. at 48.)
Finally, Dr. MacDonald measured search hit rates specifically at ACSO checkpoints. In this study, Dr. MacDonald identified the rates at which ACSO checkpoint searches yielded drugs, alcohol, or any contraband. (Id. at 49.) He did not, however, control for whether the checkpoint search was incident to arrest. The drug hit rate for checkpoint searches of stopped Hispanics was 9.89%; the drug hit rate for stopped non-Hispanics was 48.22%. (Id.) Dr. MacDonald also observed "a significant difference between alcohol found for those who were searched who were Latino versus non-Latino who were searched."
As to all results, Dr. MacDonald concluded that they showed "a consistent pattern" across all post-stop outcomes and "on an order of magnitude that's pretty
Sheriff Johnson argues that because everyone arrested is automatically searched, the best measure of whether ACSO officers discriminate in searches lies in the evidence related to searches where there is officer discretion — i.e., persons whose searches are not incident to arrest. In this regard and in response to Dr. MacDonald's testimony about discretionary searches, Sheriff Johnson introduced the testimony of ACSO Officer Mark Dockery.
Officer Dockery is responsible for ACSO's information technology and is the "system administrator" for ACSO's record management system. (Id. at 32.) His official duties include retrieving data from ACSO's computer database. (Id. at 35-36.) He holds an associate's degree from Rockingham Community College, has taken a course in crime analysis, and has received training from the manufacturer of ACSO's records system. (Id. at 32-33.) That training included work on Crystal Report computer software, which functions to pull data from databases. (Id.)
Using ACSO's traffic stop database, Officer Dockery retrieved data for all searches not incident to arrest
STOP REASON HISPANIC NON-INCIDENT PERCENTAGE OF PERCENTAGE OF TO HISPANICS NON-HISPANICS ARREST SEARCHED SEARCHED 40 SEARCHES Checkpoint 35 5.18% 22.27%
Driving While 6 20.00% 19.07%Impaired Investigatory 61 11.42% 16.46%Regulatory 41 149 10.29% 7.97%Other 20 9.62% 11.28%Safe Movement 38 13.24% 10.33%Speeding 30 10.53% 5.53%Seatbelt Violation 5 14.71% 14.04%Stop Sign Violation 12 10.17% 7.13%Vehicle Equipment 21 7.42% 8.08%Vehicle Registration 23 9.87% 7.68%Total 251
(Id. at 53-58.)
These percentages demonstrate that in many cases ACSO searched Hispanics at levels comparable to or less than that of non-Hispanics (e.g., at checkpoints, driving while impaired, investigatory, vehicle equipment, seatbelt violations, and "other"). The largest gap was at checkpoint searches, where Hispanics were searched less than non-Hispanics by a factor of more than 4 to 1. The principal areas where ACSO searched more Hispanics were stops involving moving violations such as speeding and safe movement, as well as stop sign and vehicle registration violations.
Sheriff Johnson offered David Banks, Ph.D., as an expert in statistics and who conducted a number of statistical analyses relating to ACSO's law enforcement practices. (Doc. 153 at 90.) The Government challenges Dr. Banks' qualifications and the substance of his testimony. (Doc. 115 (Motion to Exclude Expert Report and Testimony of Dr. Banks); Doc. 153 at 90-91; Doc. 158 at 110 n. 29.) As with the challenge to Dr. Lamberth, those objections will be addressed in the conclusions of law to follow.
Dr. Banks is a Professor of the Practice of Statistics at Duke University in the Department of Statistical Science. (Doc. 153 at 76.) He received his bachelor's degree in mathematics and anthropology from the University of Virginia, master's degrees in applied mathematics and statistics from Virginia Tech, and a Ph.D. in statistics also from Virginia Tech. (Id.) Dr. Banks accepted a post-doctoral research fellowship with the National Science Foundation. (Id.) He then taught a number of statistical courses at the University of Cambridge and Carnegie Mellon University. (Id. at 76-77.) For a number of years he was employed by the federal government, working as a mathematical statistician at the National Institute of Standards and Technology, serving as the director of the Office of Advanced Studies and the acting chief statistician at the Department of Transportation, and performing risk analyses for the U.S. Food and Drug Administration. (Id. at 78-80.) While at the Department of Transportation, Dr. Banks reviewed a written report on racial profiling on the New Jersey Turnpike at the
Dr. Banks has written several monographs relating to statistics, edited a number of books connected to statistical sciences, and authored approximately seventy papers on topics including data mining and computer programing. (Id. at 82-85, 89.) He currently serves on the Board of Directors of the American Statistical Association and as the editor of the Journal of the American Statistical Association. (Id. at 86.) Throughout his career, Dr. Banks has supervised people performing surname analyses, has himself published on surname analysis, and serves on the Board of Directors of the Human Rights Data Analysis Group, which uses surname analysis to link records to identify civilian casualties in conflicts. (Id. at 139-40.) He has received numerous honors and awards, including his position as a fellow of the American Statistical Association. (Id. at 86-87.)
Dr. Banks performed analyses of the following for this case: ACSO's location of checkpoints in Alamance County; the proportion of Hispanics stopped at ACSO's checkpoints; arrests of Hispanics at ACSO's checkpoints; the number of traffic stops of Hispanics in Alamance County; and the number of citations of Hispanics in Alamance County. Each will be addressed in turn below.
Dr. Banks first performed a permutation test to analyze ACSO's checkpoint siting. (Id. at 91-92.) A permutation test "considers all possible reassignments of labels to the data and determines whether or not the observed assignment of labels is statistically unlikely compared to random assignment of the labels." (Id. at 92.) As applied to the current case, Dr. Bank's permutation test examined whether ACSO sited checkpoints closer to Hispanic communities than would occur given random chance. (Id. at 92-95.)
To do this, Dr. Banks analyzed a list of 305 checkpoint sites — every location at which ACSO conducted a checkpoint in the past four years.
The results of Dr. Banks' permutation test showed that 40% of the simulations randomly placed checkpoints closer to Hispanic communities than ACSO's actual checkpoint sites. (Id. at 94-95.) Given these results, and by applying commonly-accepted statistical principles, Dr. Banks concluded that "there was absolutely no evidence that checkpoints were being sited closer to Hispanic communities than would have occurred if they were done just at chance." (Id. at 99.) As the Government correctly points out, this conclusion assumes that ACSO's sites reflected all reasonably available sites in the County. While the Government did not provide any credible evidence of other available sites, ACSO's evidence demonstrated that site locations could not be selected arbitrarily, as they must meet several safety and logistical standards. Therefore, the court concludes that ACSO's 305 sites were a reasonable reflection of available sites in the County.
Dr. Banks next examined those who were stopped at ACSO's checkpoints.
Dr. Banks offered three studies to support his first explanation. (Id. at 174-76.) The first is a Prince William County, Maryland study that found that "illegal Hispanics were stopped at ... about three times the rate for DUI[s] compared to non-Hispanics." (Id. at 110 (referencing Thomas M. Guterbock et al., Evaluation Study of Prince William County's Illegal Immigration Enforcement Policy (2010)).) The second was a Durham County, North Carolina study — conducted by the National Highway Transportation Safety Administration — that showed that, in Durham, Hispanics comprised 9% of the population but were involved in 29% of traffic accidents. (Id. at 111 (referencing National Highway Transportation Safety Administration, Promising Practices for Addressing Alcohol-Impaired Driving Within Latino Populations: A NHTSA Demonstration Project (2010)).) The third was a Fatality Analysis Reporting System study that found that, among fatal accidents, 46 to 47% of Hispanics were intoxicated as compared to 35% of non-Hispanics. (Id. at 110 (referencing Paul L. Zador et al., Alcohol-Related Relative Risk of Driver Fatalities and Driver Involvement in Fatal Crashes in Relation to Driver Age and Gender: An Update Using 1996 Data, 61 J. Stud. on Alcohol & Drugs 387 (2000)).) Dr. Banks provided no evidence concerning his other justifications. (Id. at 188-92.)
To further explain his initial finding, Dr. Banks performed a study in which he compared the proportion of Hispanics stopped at checkpoints sites (36%) to the 2010 unadjusted Census estimate for Hispanics in Alamance County — 11.6%. (Id. at 101, 106.) Dividing the 36% figure by the 11.6% Census estimate, Dr. Banks derived Alamance County's "disparity" ratio of
The Government criticizes Dr. Banks' use of unadjusted Census data. Dr. Banks testified that, while he did not know of peer-reviewed studies using unadjusted Census data, he performed a case-control methodology with that data, which is a common methodology in academic literature. (Id. at 152-53, 156-57.) Second, he stated that he did not attempt to adjust the Census data because "there was no set of adjustments that I actually thought I could actually defend." (Id. at 105.) Census adjustments are changes to the U.S. Census' population estimates meant to improve the U.S. Census' estimates' accuracy. (Id. at 102.) Adjustments account for population characteristics like literacy rates and migrant worker patterns. (Id. at 103-04.) Third, Dr. Banks testified that making adjustments of that kind would have been "problematic" in his study without first controlling for whether or not a person operates their vehicle in a safe manner — the dominant factor in his study. (Id. at 143-45.) Because he could not adjust for driving behavior, performing other "minor" adjustments would have been "misinformative." (Id. at 144-45.) Fourth, based on North Carolina's Department of Motor Vehicle data, Dr. Banks found that 9.92% of the commuting miles in Alamance County were driven by Hispanics — a figure he claimed was "consistent" with the unadjusted U.S. Census estimate for the County.
The court accepts Dr. Banks' use of Census data for the limited purpose it is offered: to compare Alamance County's ratio to that of other North Carolina jurisdictions. For the reasons cited by the Government, the court does so without accepting that any ratio is itself indicative of a true benchmark analysis. Rather, it is only Dr. Banks' relative comparison of Census data, whose alleged internal errors are consistent across all the examined jurisdictions, that will be considered.
Dr. Banks next examined ACSO arrests at checkpoints.
Dr. Banks' fourth study examined ACSO's non-checkpoint traffic stops. In this analysis, Dr. Banks compared the proportion of non-checkpoint stops of Hispanics in several North Carolina counties to that county's unadjusted Census estimate of Hispanics; he then divided that by the proportion of stops of non-Hispanics to the proportion of non-Hispanics in that county. (Id. at 114-15.) The product of this analysis was a ratio, from which Dr. Banks subtracted 1.0 to avoid double counting, to show "whether or not there was an excess or a deficiency of Hispanic traffic stops." (Id.) Dr. Banks found that Alamance County's ratio was negative, meaning that, at non-checkpoint stops, ACSO stopped fewer Hispanics compared to their proportion of the population.
According to Dr. Banks, the results across all jurisdictions he examined showed that "unless many, many other counties in North Carolina are engaged in aggressive ethnic profiling, Alamance County does not seem to be misbehaving" by comparison. (Id. at 117.) Thus, he concluded, his study of traffic stop ratios "shows that there is no statistical evidence of ethnic profiling in [ACSO's] traffic stops." (Id. at 116.) This is an overstatement. While Dr. Banks' analysis in this regard does not prove that no ethnic profiling is occurring in Alamance County, it does suggest that the County compares favorably to other counties about which there is no claim of discriminatory policing.
Finally, Dr. Banks analyzed what he termed a "Hispanic citation ratio." In this study, apparently using unadjusted Census data, he calculated the proportion of Hispanics receiving citations relative to the proportion of non-Hispanics receiving citations for eleven North Carolina jurisdictions.
The evidence of ethnic/racial bias regarding Hispanics at ACSO was conflicting. ACSO Sergeant Dan Cubino, a Spanish-speaking Hispanic of Cuban descent who was an eleven-year veteran and worked in the ICE unit from 2007 to 2012, testified that he never knew Sheriff Johnson or any ACSO leadership to engage in, or direct, any discriminatory action against Hispanics. (Doc. 152 at 130-31, 155.) Had he ever observed it, he said, he would not have tolerated it. ACSO Detective Carlos Rossi — a Peruvian immigrant, U.S. Army veteran, and former ACSO patrol officer — echoed Sergeant Cubino's assessment of ACSO. (Doc. 153 at 212-13.) Detective Rossi worked the Hispanic neighborhoods in Alamance County and never observed any discrimination toward Hispanics. (Doc. 154 at 4.) He, too, would have felt obligated, as an immigrant to the United States, to report discrimination had he observed it. (Id. at 4-5.) Both men were highly credible.
In addition, ACSO has engaged in several forms of outreach to the County's growing Hispanic community. For example, ACSO hired Ester Benbassat, an Argentinian resident of the County, to teach Spanish to ACSO officers. (Doc. 153 at 14, 16.) And as previously mentioned, Arzola, a Hispanic resident of the County whom the Government suggests was stopped because of his ethnicity, characterized his treatment by ACSO officers as "excellent" when responding to his calls after home break-ins. (Doc. 147 at 194.) In fact, his wife was reassured by their presence. (Id. at 194-95.) This is contrary to the Government's generalized allegation that Hispanics in the County are distrustful of and fear law enforcement but further supported by Detective Rossi's testimony, admitted without objection, that many Hispanic residents within Alamance County understand the work that ACSO officers do and appreciate their help. (Doc. 154 at 13.) To the extent some Hispanics in the community hesitated to communicate with ACSO, he explained, it was his experience that much of their hesitation is attributable to cultural differences, with many coming from cultures of police distrust. (Id. at 8, 15.) Finally, according to ACSO
ACSO has repeatedly attempted to hire more Hispanic officers. (Doc. 152 at 197, 199-200; Doc. 154 at 5.) ACSO pays an individual who can speak Spanish at the time of hire a 4.5% salary increase. (Doc. 152 at 200.) In 2012, ACSO also approved sponsorship of a Hispanic officer in North Carolina's Basic Law Enforcement Training School, only to learn that the individual had already received sponsorship from the Burlington Police Department. (Id. at 197-99.) In addition to recruiting efforts, ACSO recently began to offer its officers Spanish language classes to improve language skills and better understand Spanish-speaking culture — an idea originating from Sheriff Johnson and Chief Deputy Britt. (Id. at 195; Doc. 153 at 14-16, 217.) These classes have had a positive effect on relations with the Hispanic community. ACSO officers are now better able to communicate with the County's Spanish-speaking community. (Doc. 150 at 160.) Captain Longamore is now conversant in Spanish after taking ACSO's Spanish classes and will often field calls from Spanish-speaking residents. (Doc. 152 at 195-96.)
Sheriff Johnson himself has been personally involved in ACSO's outreach programs. He started "The Sheriff's Christmas Program," which provides gifts to children, many of whom are Hispanic. (Doc. 151 at 54; Doc. 154 at 72.) He also personally delivers these presents to the homes of the children. (Doc. 154 at 72.) ACSO also provides security at soccer fields in the northern part of the County, and many of those at the fields are Hispanic. (Id. at 73.)
Other evidence at trial was troubling, however. Over the course of several years, some ACSO officers have used a number of racial and ethnic epithets, slurs, and jokes derisive of Hispanics, and there have been emails of similar pejorative character. Most of this conduct occurred within the ACDC — not the patrol division — of ACSO.
In its complaint, the Government alleged a number of discriminatory statements made by Sheriff Johnson and ACSO officers. (Doc. 1 ¶¶ 31-33.) For example, the Government claimed that Sheriff Johnson referred to Hispanics as "taco eaters," that he "lamented the increased Latino presence in North Carolina's workforce and public schools," and that ACSO officers threatened residents with deportation on multiple occasions. (Id. ¶¶ 31, 33.) At trial, the Government presented no evidence to support those allegations or several other similar allegations made in its complaint.
There was evidence that some ACSO and federal ICE officers uttered racial and ethnic epithets and jokes. Several ACSO and ICE officers used the following terms to describe Hispanics: "wetback" (Doc. 147 at 159; Doc. 149 at 136, 217; Doc. 150 at 64; Doc. 153 at 6), "spic" (Doc. 147 at 160; Doc. 149 at 220; Doc. 150 at 64; Doc. 153 at 7), "beaner" (Doc. 147 at 160; Doc. 149 at 220; Doc. 150 at 102 (former officer Gerry Helms attributing use of word to Major Miles); Doc. 153 at 7).
Beyond epithets, some ACSO officers also sometimes made jokes and derogatory comments about Hispanics. For example, Officers Anthony and Helms heard other ACSO officers tell racially and ethnically insensitive jokes. (Doc. 148 at 9; Doc. 150 at 104-05.) Former ACSO officer David Cobb recalled "a couple of times" when officers told a detainee to "go back to your country." (Doc. 150 at 64.)
The majority of the epithets, slurs, and jokes occurred within the ACDC. (See Doc. 149 at 224 (Major Miles); Doc. 150 at 67-68 (Cobb), 104 (Helms). But see Doc. 147 at 160 (Officer Lloyd heard patrol officers use epithets); Doc. 149 at 136 (Lieutenant Denham similarly heard patrol officers use derogatory terms).) Such evidence came largely from current and former officers in ACSO's detention division — not those in the traffic enforcement division. (Doc. 149 at 126-27 (Lieutenant Denham spent time both as an officer in the 287(g) program within the detention center and as a detective under Sheriff Johnson), 211 (Major Miles was major over the detention division); Doc. 150 at 57-64 (Cobb spent time as a detention officer (80% of his time in the jail and 20% in the sally port) and court bailiff, as well as spending a few years as a patrol officer), 98-101 (Helms mainly worked as a detention officer or bailiff transporting prisoners).) Only two former officers — Cobb and Helms — testified that other officers actually directed an epithet toward Hispanic individuals or that Hispanic individuals may have heard insensitive terms and jokes. (Doc. 150 at 65-66, 113.) Most accounts were that ACSO officers uttered such epithets outside the presence of a Hispanic person. (See, e.g., Doc. 147 at 160; Doc. 149 at 224.)
In addition, the Government introduced evidence that certain ACSO officers sent or forwarded several racially and ethnically derogatory emails. Except for one instance that is specifically noted, none of the individuals involved was ever reprimanded for their involvement in any of the following emails.
On January 25, 2010, Lieutenant Hoover — an officer in the patrol division at the time — forwarded an email titled "Rules for Kicking Ass" to several officers assigned to him. (Doc. 150 at 14; Gov't Trial Ex. 20.) He thought the email was "amusing" and, as a military veteran, respectful to the military. (Doc. 150 at 15, 27.) The email listed a dozen "rules" that are hyperbolic pro-America or pro-military statements. For example, Rule 1 read, "The next time you see any adults talking (or wearing a hat) during the playing of the National Anthem — kick their ass"; Rule 2 read, "When you witness, firsthand, someone burning the American Flag in protest — kick their ass"; and Rule 11 stated, "Last, but not least, whether or not you become a member of the military, support our troops and their families.... Without them, our Country would get its ass kicked." (Id. at 24-26.) The email also contained a message to "[m]ake sure you read #12." (Gov't Trial Ex. 20.) Rule #12 stated, "If you ever see anyone either standing for or singing the national anthem in Spanish — KICK THEIR ASS." (Id.)
On July 12, 2010, Officer Mario Wiley — a supervising ACDC detention officer at the time — emailed a video game to several
On June 1, 2012, Officer Randy Jones — ACSO's part-time public information officer — forwarded an email titled "Be on the lookout for red 1951 Chevy." (Doc. 150 at 54; Gov't Trial Ex. 23.) Officer Jones sent the email to several supervisors — Chief Deputy Britt, Captain Robert Wilborn, and Captain Longamore. (Doc. 150 at 54.) The email read:
(Doc. 150 at 54; Gov't Trial Ex. 23.) The punchline of the email is a picture of a red 1951 Chevy outer chassis with scores of legs protruding underneath where wheels would normally be, such that the individuals are using the chassis as a not-so-clever decoy. (Gov't Trial Ex. 23.) Officer Jones intended the email to be a joke and a "good-natured poke" at another law enforcement agency — border patrol. (Doc. 150 at 55-56.)
On July 13, 2012, Officer Jones forwarded another email he had received from a non-ACSO employee titled "Slow Response" with no additional text of his own to several of his supervisors — Chief Deputy Britt, Captain Longamore, Captain Wilborn, and Major Brown. (Doc. 150 at 50-52; Gov't Trial Ex. 22.) The email explains "Sam Elliott's[
On January 22, 2013, Captain Longamore forwarded an email from Victor Jeffries — whom ACSO had previously retained to teach Spanish to its officers and court interpreter — to Sheriff Johnson and Chief Deputy Britt. (Doc. 152 at 207, 209.) The forwarded email contained no additional text and was originally titled "Sex slave trafficking by the Family Values folks in the Southeast." (Id.) The substance of the original email commented on a news article and stated in relevant part:
(Id. at 207-08.) According to Captain Longamore, Jefferies repeatedly sent him emails although Jefferies no longer taught classes for ACSO, and Longamore forwarded the email to Sheriff Johnson and Chief Deputy Britt "for informational purposes." (Id. at 210.) Sheriff Johnson testified that he did not open the email but, when informed about the email, told Chief Deputy Britt to make sure that Jeffries was not associated in any way with ACSO. (Doc. 154 at 155-58.)
On May 1, 2013, Corporal Darryl Meyers — a supervisor in ACSO's detention division — forwarded his supervisor, Lieutenant Wesley Anderson, an email titled "Profiling." (Doc. 150 at 36-37, 43; Gov't Trial Ex. 21.) Corporal Meyers did not add anything to the text of the original email. (Gov't Trial Ex. 21.) The original email began, "THE ORIGIN OF PROFILING." (Id.) It then described a scene between historical figures Davy Crockett, William B. Travis, and Jim Bowie at the Alamo. (Id.) As the group looks out over "the hordes of Mexicans moving towards the Alamo," Davy Crockett says to Jim Bowie, "Jim, are we, by any chance, having landscaping done today?" (Id. (quotation marks omitted).) Lieutenant Anderson forwarded the email, without additional text, to Greg Shattery — ACSO's maintenance director. (Doc. 150 at 42.) Corporal Meyers testified that he did not
In its complaint and post-trial brief, the Government challenged ACSO's supervision and discipline of its officers. (Doc. 1 ¶¶ 52-67; Doc. 158 at 19-22, 67-75.) In addition to presenting testimony from ACSO officers at trial, the Government introduced expert testimony from Margo Frasier on standard law enforcement practices and procedures.
ACSO has several policies meant to supervise the conduct of its officers.
ACSO implements a citizen complaint procedure in conjunction with its disciplinary policy. (See Def. Trial Ex. 16.) The purpose of the complaint policy "is to establish guidelines and procedures for receiving, reporting, investigating, and adjudicating allegations and complaints against [ACSO] personnel." (Id. at 1.) ACSO accepts complaints from "any source." (Id. at 2.) Alamance County residents may visit ACSO's website, email, call, or walk into ACSO to report an issue. (Doc. 152 at 187-89; Doc. 154 at 46.) Many residents also contact officers personally, particularly Sheriff Johnson, with issues and complaints. (Doc. 154 at 46.) "Any non-ranking or nonsupervisory member" in ACSO receiving a complaint must report the complaint to his or her supervisor. (Def. Trial Ex. 16 at 2.) All complaints received require completion of a complaint form. (Doc. 154 at 46; Def. Trial Ex. 16 at 2.) All supervisors must report complaints to the chief deputy within twenty-four hours of their receipt. (Def. Trial Ex. 16 at 2.)
The process of investigation for a complaint depends on the type of complaint received. (Doc. 152 at 188; Doc. 154 at 46-47.) If the complaint is "minor," described as "performance issues" such as an officer being rude, the officer's supervisor handles the complaint. (Doc. 152 at 187-88; Doc. 154 at 46-48.) These investigations, known as "Supervisory Investigations," require preliminary investigation and possible discipline, if warranted, by the supervisor. (Doc. 152 at 190-91; Def. Trial Ex. 16 at 2-3.) The chief deputy then reviews the complaint, investigation, and any discipline. (Doc. 152 at 190-91; Def. Trial Ex. 16 at 2-3.) If satisfied, the
If, however, the complaint relates to an "ethical issue," it is handled by ACSO's Office of Professional Standards. (Doc. 154 at 47; Def. Trial Ex. 16 at 1-2.) Ethical issues include civil rights violations. (Def. Trial Ex. 16 at 1-2.) Under this type of investigation, an internal investigative officer conducts the investigation and reports directly to the chief deputy. (Doc. 152 at 191; Doc. 154 at 46-47; Def. Trial Ex. 16 at 3.) If the complaint involved potential criminal exposure, ACSO also contacts the District Attorney and SBI. (Doc. 154 at 47.) After investigation, the internal investigation officer classifies the complaint as "unfounded," "unresolved," "exonerated," or "sustained." (Def. Trial Ex. 16 at 6.) Sustained complaints or allegations are handled under ACSO's "Rules of Conduct/Disciplinary Procedures" policy. (Id.) ACSO retains all complaints, even those found to be unfounded or minor. (Doc. 152 at 191; Doc. 154 at 48.)
Around 2009, ACSO installed car video cameras in all marked front-line cars. (Doc. 154 at 44-45.) According to Chief Deputy Britt, the cameras sometimes aid in the investigation of complaints and add "another level of supervision." (Id. at 45.) Chief Deputy Britt testified that he would review video records when relevant to a complaint he reviewed. (Id.) Sheriff Johnson sometimes reviewed video records as well. (Id. at 91.) ACSO, however, had no policy regarding the review of video records. (Id. at 50.)
Outside of the complaint process, supervisors provide some review of traffic stops, arrests, and searches. For arrests, an officer fills out an arrest report, and his supervisor "checks off" on the report. (Doc. 150 at 139-40.) After the supervisor provides this review, the report goes directly to ACSO's records clerk or its warrant division clerk. (Id.) Captain Wilson — head of ACSO's patrol division — performs no review of arrests for probable cause or review for patterns of racial or ethnic arrest profiling. (Id. at 147.)
For traffic stops, since at least 2009, Captain Wilson collects daily traffic stop forms filled out by ACSO officers. (Id. at 141-42.) She then compares those reports to an Alamance County Central Communications Department report (a computer-aided dispatch or "CAD report"). (Id.) The CAD report logs all stops radioed over the County's communication system. (Id.) If a stop appears in the CAD report that does not have a corresponding stop form, Captain Wilson contacts the officer who made the stop to complete a stop form. (Id. at 142.) This type of reminder by Captain Wilson occurs approximately one to three times per week. (Id.) This process is designed to ensure that all stops are memorialized by a stop form, which requires the recording of information, including ethnicity. Captain Wilson, however, conducts no "substantive review" of the traffic stop forms to ensure that sufficient legal justification existed for the stops. (Id. at 143.) Her review of CAD reports has never identified an unconstitutional stop. (Id. at 144-45.) Similarly, Captain Wilson conducts no substantive review of searches following traffic stops and has never found a search to lack probable cause. (Id. at 145.) Captain Wilson has never been asked to conduct a review for potential racial or ethnic profiling. (Id. at 150.)
Captain Wilson's superior, Major Brown, similarly conducted no systematic check of ACSO traffic stop forms, but he occasionally looked through traffic stop forms and arrest reports. (Id. at 175-78.) A lieutenant
Several officers also relied on the Alamance County District Attorney's office and magistrates to review the legal justification for ACSO's stops, arrest, and searches. For example, Captain Wilson testified that "the magistrate's the one that's going to find probable cause on your arrest. If she has — she or he has a problem, then they would speak of it." (Id. at 156.) Sheriff Johnson similarly believed that challenges to the legal justification for a stop should be left to "the discretion of the officer and the discretion of the magistrate or the [District Attorney's] office or the judge." (Doc. 154 at 83.) Neither the Government nor Sheriff Johnson presented evidence that the Alamance County District Attorney's Office or any magistrate or judge ever found an unconstitutional stop, arrest, or search by ACSO. Similarly, the Alamance County District Attorney — Patrick Nadolski — and Magistrate Wortinger testified that they had never found a stop, arrest, or search lacking in the requisite legal justification. (Doc. 149 at 169; Doc. 152 at 93-94.) Sheriff Johnson also met regularly with District Attorney Nadolski and never received a report regarding an unconstitutional stop, arrest, or search conducted by an ACSO officer. (Doc. 152 at 88; Doc. 154 at 82.)
Finally, ACSO conducts performance evaluations of its officers. From about 2004 to 2009, ACSO stopped conducting formal reviews because they were no longer required by the County. (Doc. 154 at 153.) ACSO did conduct informal performance reviews during that time period, however. (Id. at 93.) Starting in 2009, ACSO — of its own accord — reinstituted formal annual performance reviews of its officers. (Id. at 151, 153-54.) Neither party has submitted evidence on the substance of these performance reviews.
According to Frasier, standard review of traffic stops, citations, arrests, and searches includes the review of the makeup of those stopped, cited, arrested, or searched. (Doc. 151 at 25-26, 79-80.) That review should also include evaluation of the standards applied by officers in making arrests, citations, stops, and searches. (Id. at 27, 79-80.)
ACSO submits monthly reports of its traffic stop data, including race and ethnicity information, to the North Carolina SBI.
ACSO officers undergo extensive training, which includes education as to making legal stops, arrests, and searches, as well as minority sensitivity. All ACSO officers must undergo some seven hundred hours of training at Basic Law Enforcement Training. (Id. at 82.) ACSO also assigns new officers a training officer for a period of time ranging from six months to a year. (Id.) North Carolina law further requires that officers attend twenty-four hours of training annually. (Doc. 152 at 177; Doc. 154 at 66.) From 2009 to 2012, that mandatory training included a two-hour course for "juvenile and minority sensitivity training," known as "JMST." (Doc. 152 at 177-78.) ACSO required its officers to attend that two-hour training session. (Def. Trial Exs. 21-24.) In 2012, ACSO officers also received State-mandated training in "traffic interdiction." (Doc. 152 at 182; Def. Trial Ex. 24.)
In addition to the State-mandated training, ACSO implemented significant supplemental training under Sheriff Johnson. Prior to Sheriff Johnson's tenure, ACSO officers received little training and instruction. (Doc. 152 at 186-87; Doc. 154 at 65-66.) After taking office, Sheriff Johnson secured a $50,000 training budget to supplement the training required by the State. (Doc. 154 at 66.) From 2009 to 2012, ACSO officers attended over 450 officer training schools throughout the country. (Def. Trial Ex. 14.) Hundreds of ACSO's officers received this supplemental training and spent a total of 50,849 hours in training during that time. (Id.) Many of these supplemental training hours educated officers on the necessary legal standards for conducting searches, making stops, and performing arrests. (Doc. 154 at 83-84; Def. Trial Exs. 21-24.)
As an example of this training, Lieutenant Williams — a patrol officer — provided a nuanced description of the substance of his drug interdiction training. Lieutenant Williams testified that, using approximately twenty "indicators" learned through training, officers could more effectively make stops likely to undercover drug trafficking and other drug-related crimes. (Doc. 150 at 123-24, 132.) He made clear that "being Latino" is not an indicator. (Id. at 123-24.) If the indicators suggested possible drug trafficking, Lieutenant Williams would then look for reasonable suspicion to stop the vehicle. (Id. at 132.) He acknowledged that the indicators alone "did not give [him] the right to stop the vehicle." (Id. at 132-33.) Lieutenant Williams explained that he drew on this drug interdiction training when making stops. (Id. at 123.)
ACSO's policy manual also contains a "Harassment in the Workplace" policy. (See Gov't Trial Ex. 138.) The policy states that ACSO "will not condone or tolerate, in any way, harassment of any type in the workplace." (Id. at 1.) In particular, the harassment policy bans "[h]arassment of any person because of gender, race, color, age, religion, disability, ancestry or national origin" whether that harassment is "directed at an employee,
Since the start of the Government's pre-trial investigation in this case, ACSO began employing computer software known as "Ironport" and "Blue Coat" to monitor and filter ACSO emails. (Doc. 154 at 28-29.) The software is designed to curb inappropriate conduct on ACSO's computers and in its emails. (Id.) The Blue Coat software blocks access to internet sites and certain information on the internet. (Id.) Both programs now block internet games from loading and block the download of games to an ACSO computer without administrator authorization. (Id.)
While ACSO has a disciplinary policy, that policy was not introduced into evidence. (See Def. Trial Ex. 16 at 6 (referring to ACSO's "Rules of Conduct/Disciplinary Procedures" policy).) ACSO has available four basic disciplinary violation levels — labelled Classes A through D. (Doc. 152 at 194.) The classes of disciplinary violations correspond with disciplinary action as follows:
(Id.) Sheriff Johnson, Chief Deputy Britt, or both sign off on disciplinary action. (Id. at 194; Doc. 154 at 48.) Use of racially or ethnically degrading terms or the sending of emails of a similar character are Class A violations, thus permitting a disciplinary action of up to three days suspension without pay, demotion, or termination. (Doc. 154 at 48, 60, 71.) Sheriff Johnson also listed five basic rules that he personally requires officers to follow. (Id. at 74-75.) Those rules prohibit "[l]ying, laziness, incompetence, running around with a married man or a married woman, and drinking in the county and showing yourself." (Id.)
Specific contours of ACSO's disciplinary policy aside, the evidence demonstrated that ACSO inconsistently applied it. In a number of circumstances, ACSO disciplined its officers for wrongdoings, which included racially and ethnically inappropriate epithets, jokes, statements, and emails. Prior to trial but after the Government began its investigation, ACSO demoted the Director of Detention — Coley Rich — to Captain and reduced his pay following an investigation in the ACDC conducted by Chief Deputy Britt. (Id. at 30-31, 62-63.) ACSO suspended Officer Anthony for failing to report another officer's racial slur. (Doc. 147 at 201; Doc. 154 at 78.) The officer using the racial slur received discipline for his statement as well. (Doc. 154 at 78-79, 143-44.) Sheriff Johnson denied a promotion to Lieutenant Anderson for his use of a racially insensitive joke. (Doc. 150 at 44-46.) ACSO demoted Corporal Nicholson for sexual harassment. (Doc. 147 at 92-93.) ACSO also took disciplinary action against several other officers for, among other reasons, misleading an assistant district attorney, insubordination, and assault and detention of a juvenile. (See Doc. 147 at 162 (Officer Lloyd); Doc. 150 at 69 (Cobb), 105, 111 (Helms); Doc. 154 at 41-44 (Officer Lloyd); see also Doc.
The Government and Sheriff Johnson also produced testimony on the discipline of Officer Wiley, who sent the "Quick Draw" video game. Because discovery of the video game occurred only after Officer Wiley's deposition in this case while litigation was pending, Sheriff Johnson deferred discipline until after the case is resolved. (Doc. 154 at 61-62.) In the meantime, Officer Wiley was invited to voluntarily step down three levels in rank, resulting in a pay decrease, which he accepted. (Doc. 149 at 246-47; Doc. 154 at 62.)
In a number of other instances, however, ACSO failed to discipline officers making racially and ethnically inappropriate statements, which departs from its own harassment policy. Multiple officers testified that they never observed or meted out discipline for the use of derogatory terms for Hispanics. (See, e.g., Doc. 149 at 136-37 (Lieutenant Denham stated that he has never disciplined officers for using derogatory language.); id. at 223-24 (Major Miles testified that he does not know of an officer receiving discipline for derogatory language and has not disciplined any officers for such conduct.); Doc. 150 at 66-67 (Cobb testified that he did not know of any ACSO officer receiving discipline for the use of derogatory statements.); id. at 104 (Helms stated he knew of no officer receiving discipline for making derogatory statements.).) Similarly, several officers testified that they did not receive discipline for the sending or forwarding of racially and ethnically inappropriate emails. (See, e.g., Doc. 150 at 15-16, 21 (Lieutenant Hoover never faced disciplined for forwarding the "Rules for Kicking Ass" email or the "Texans" email.); id. at 36 (Corporal Meyers was never disciplined for forwarding the derogatory "Profiling" email.); id. at 42-44 (Lieutenant Anderson did not discipline Meyers for forwarding the "Profiling" email and instead forwarded the email to another ACSO employee.).)
In her expert opinion, Frasier concluded that ACSO (1) lacked adequate practices and procedures to detect discriminatory policing; (2) failed to discipline its employees; and (3) failed to respond properly to complaints about discriminatory policing.
First, Frasier testified that ACSO's current practices and procedures insufficiently monitored for discriminatory policing. (Doc. 151 at 24-25.) She particularly criticized the practice of relying exclusively on a magistrate or district attorney review to detect discriminatory policing. (Id. at 27-28.) According to Frasier, magistrate and district attorney review insufficiently scrutinizes law enforcement practices.
On cross-examination, Frasier could point to no specific procedure that ACSO should use to review stops, arrests, and searches. (Id. at 79-80.) She could also offer no opinion on the extent to which other sheriffs' offices in North Carolina review for potential citation patterns. (Id.) And, although critical of Captain Wilson's and ACSO's stop data collection and reporting, Frasier opined, "[T]hose [procedures] are all good things." (Id. at 80-81.) She further characterized ACSO's installation of video cameras in its vehicles as "fortunate." (Id. at 79.) Frasier also appeared unaware of Sheriff Johnson's weekly meetings with District Attorney Nadolski, but agreed that, if they did meet, that would be "a good thing." (Id. at 86; see also Doc. 152 at 88 (District Attorney Nadolski acknowledged working with Sheriff Johnson "often."); Doc. 154 at 82 (Sheriff Johnson stating he met with District Attorney Nadolski on a weekly basis).) Lastly, she did not say whether the training ACSO officers received from the State of North Carolina satisfied her concerns or not, and it is unclear whether Frasier was aware of ACSO's training.
As to ACSO's disciplinary policies, Frasier testified that ACSO lacked adequate measures. (Doc. 151 at 44-46.) She opined that a law enforcement agency should have a "zero-tolerance" policy toward derogatory statements, jokes, and emails and should require training for those violating that policy. (Id. at 40, 42.) She advocated that those at the top of an organization should vocally condemn any violation when it occurs. (Id. at 42.) In Frasier's view, the lack of both this policy and consequences for policy violations would "create an atmosphere where that sort of behavior is tolerated." (Id. at 41, 45-46.) She acknowledged, however, that these types of comments and jokes continue to occur in law enforcement agencies, although much less today than when she started forty years ago. (Id. at 41-42.)
While Frasier testified that "nothing happened" as a result of the emails and improper slurs made within ACSO, she was unaware of ACSO's adoption of email filtering software, the demotion of Captain Rich, and the discipline of Officer Anthony. When asked about ACSO's adoption of email filtering software, she opined that this was an "appropriate response." (Id. at 91.) She also admitted to being unaware of Sheriff Johnson's discipline of Officer Anthony for failing to report a racial slur but was "glad to hear it." (Id. at 90.) Frasier also allowed that Sheriff Johnson may face limitations on his ability to discipline during the course of the present litigation. (Id. at 92-93.)
Finally, Frasier critiqued ACSO's response to complaints about law enforcement profiling. She stated that a law enforcement agency faced with complaints should not ignore them but rather address them. (Id. at 25.) More specifically, she
Frasier, however, again appeared to be unaware of certain efforts undertaken by ACSO. Of particular note, she acknowledged she was unaware "that the [S]heriff met with [Professor] Roselle and Fairness Alamance" over their complaint. (Id. at 63.) She allowed, though, that if Sheriff Johnson met with Professor Roselle and Fairness Alamance, then she "applaud[ed] him." (Id.) As noted previously, Sheriff Johnson did in fact met with Professor Roselle and Fairness Alamance on more than one occasion. Frasier also acknowledged that Sheriff Johnson investigated Professor Roselle's complaint regarding the underreporting of stop data and corrected an underreporting problem in the computer data. (Id. at 66-67.) Frasier approved of Sheriff Johnson's action as "the sort of thing that you should do ... when somebody raises a legitimate concern." (Id.) Although appearing unaware of ACSO's provision of security at soccer fields frequently attended by Hispanics, Frasier commended this and other community outreach efforts as "all good things" and "positive." (Id. at 53-54, 88.)
In short, Frasier is a credible witness who appears not to have been provided complete information about ACSO. Thus, her opinions have limited value because they were based on a partial review of the evidence and lack of awareness of key facts. Further, her opinion appears to have been informed in part by Professor Roselle, who was less than objective in her concerns about ACSO.
Based on the above facts and any further facts noted hereafter, the court makes the following conclusions of law.
As a preliminary matter, the court must resolve Sheriff Johnson's motion to exclude the testimony of Dr. Lamberth.
Sheriff Johnson does not challenge Dr. Lamberth's qualifications, only the admissibility of his testimony. Specifically, the Sheriff challenges Dr. Lamberth's absence of a standard for identifying Hispanics; his method of calculating a benchmark for comparison; the lack of a known error rate; the use of citation rather than traffic stop data; the use of selected observation time periods; and the non-random selection of roads. (See Doc. 128.) In a hearing on August 8, 2014, this court reserved ruling on Sheriff Johnson's motion, holding the motion in abeyance until trial. (Doc. 156 at 2.) Sheriff Johnson renewed his motion at trial during Dr. Lamberth's testimony. (Doc. 148 at 36.) The court deferred decision until after Dr. Lamberth's direct and cross-examination. (Id. at 36-37.) Counsel elected to withhold argument on the motion until the close of the Government's case. (Id. at 189-90.) After hearing argument on the motion following the close of the Government's case, the court reserved ruling. (Doc. 151 at 230-31; Doc. 152 at 4-14, 57.) With the entirety of Dr. Lamberth's testimony now before it and after careful consideration, this
Federal Rule of Evidence 702 governs the admissibility of expert testimony. This rule requires that trial judges "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). "A reliable expert opinion must be based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods." Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 200 (4th Cir.2001) (quoting Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir.1999)). To guide this "gatekeeping" function, the Supreme Court has identified several non-exhaustive factors useful for evaluating the reliability of proposed expert testimony, which include:
Id. at 199 (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786). The Government must establish the admissibility of Dr. Lamberth's testimony by "a preponderance of proof." Id.
"Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested." Daubert, 509 U.S. at 593, 113 S.Ct. 2786. In this case, the most evident problem with Dr. Lamberth's testimony is that his methodology is seriously flawed and cannot be replicated. Although citing prior studies by Dr. Lamberth and others, the Government has not shown that the methods used in Dr. Lamberth's study have been independently tested. See Ruffin v. Shaw Indus., Inc., 149 F.3d 294, 297-99 (4th Cir.1998) (finding no evidence that expert witness's methodology had been independently replicated "under the same conditions as used in" the expert's study); Newman v. Motorola, Inc., 218 F.Supp.2d 769, 777-83 (D.Md.2002) (excluding experts' testimony in part because their studies had not been replicated). More specifically, the studies relied on by the Government as proof of reliability do not involve observational studies of Hispanics, like the one performed by Dr. Lamberth. See Fabien Jobard et al., Measuring Appearance-Based Discrimination: An Analysis of Identity Checks in Paris, 67 Population 349, 358 (English ed.2012) (observational study not involving Hispanics and identifying individuals while walking at railway stations); Joseph B. Kadane & John Lamberth, Are Blacks Egregious Speeding Violators at Extraordinary Rates in New Jersey?, 8 Law, Probability & Risk 139, 142-44 (2009) (mobile observational study comparing African-American drivers, not Hispanic drivers, to non-African-American drivers); Katherine Beckett et al., Race, Drugs, and Policing: Understanding Disparities in Drug Delivery Arrests, 44 Criminology 105, 110-15 (2006) (observational study involving Hispanics but only involving individuals either self-reporting their ethnicity or observed while standing in "outdoor drug market").
Not only has Dr. Lamberth's methodology in this case not been independently tested under the same or similar conditions, but, more importantly, it cannot be. See Daubert, 509 U.S. at 593, 113 S.Ct. 2786. Critical to Dr. Lamberth's study was his identification of Hispanics to set a "benchmark" by which to judge ACSO's data. Yet, Dr. Lamberth conceded that no control, standard, or description was used to identify Hispanics in his study. (Doc. 148 at 181.) Instead, Rivera — the surveyor observing virtually all of the drivers — simply identified people as Hispanic if he thought they "appeared to be" Hispanic. (Id.) Dr. Lamberth offered no information on what, if any, standard Rivera used.
The Government attempts to downplay this failing by pointing to Dr. Lamberth's opinion that the errors in his benchmark would have to be wrong by "about 400 percent or more" to destroy the statistical significance of his conclusions. (Doc. 148 at 109-10.) In other words, he urges, he would have to be wrong in about three out of every four cases. (Id.) As noted in the discussion of "error rates," infra, the problem with this argument is that there is no reliable way of knowing just how wrong his benchmark may be. See BASF Corp. v. Sublime Restorations, Inc., 880 F.Supp.2d 205, 212-14 (D.Mass.2012) (holding that expert's subjective "eyeballing"
Similarly, Dr. Lamberth has not demonstrated adequate peer review and publication supporting the application of his methodology in this case. See Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786.
The Government contends that Dr. Lamberth's methodology has been used and cited in other studies (several of which include Dr. Lamberth as an author). But, none of those studies attempted to observe Hispanics in passing vehicles from the roadside, as in this case. Rather, most involved comparing African-Americans to non-African-Americans, or utilized more reliable methods of observation. See Jobard et al., supra, at 358 (observational study not involving Hispanics and identifying individuals while walking at railway stations); Kadane & Lamberth, supra, at 142-44 (mobile observational study comparing African-American drivers, not Hispanic drivers, to non-African-American drivers); Beckett et al., supra, at 110-15 (observational study involving Hispanics but only involving individuals either self-reporting their ethnicity or observed while standing in "outdoor drug market"); see also David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84 Minn. L.Rev. 265, 277-88 (1999) (referring to Dr. Lamberth's mobile observational study involving African-Americans).
The known or potential rate of error of a technique is a factor that bears on its reliability and thus the proffered conclusions. See Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786. Here, Dr. Lamberth's methodology contains several unknown rates of error without any reliable method to control for them.
Most obvious, the rate at which the surveyors misidentify Hispanic drivers is unknown, as the surveyors used no controlling standard. Dr. Lamberth admitted there was no control, template, or description used to identify Hispanics in his study. (Doc. 148 at 181.) Instead, surveyors simply identified people as Hispanic if either (almost always Rivera) thought the driver "appeared to be" Hispanic based on their subjective evaluation. (Id.)
Dr. Lamberth's attempted use of an "inter-rater reliability" test in an effort to control for the unknown error rate provides no assistance. As described earlier, this test, when conducted according to design, independently compares the observations of multiple observers to ascertain how often they agree on an individual's race or ethnicity.
As noted, the Government nevertheless contends that Dr. Lamberth's team "would have to be wrong by over 400 percent" of the time or, put differently, would have to have "misidentified 3 out of every 4 Latino drivers" for the error rate to impact the study's statistical significance. (Doc. 158 at 51.) The Government further relies on Dr. Lamberth's previous studies reporting high levels of inter-rater reliability. (Id. at 44.) Neither of these arguments is persuasive.
As to the Government's first argument regarding the degree of error, there is no proof that Dr. Lamberth's team could agree on an assessment of any Hispanic driver. Yet, it is the Government's burden to prove admissibility. See Cooper, 259 F.3d at 199. Given the lack of any proof as to Rivera's error rate, the Government cannot rely on the degree of error necessary to impact statistical significance or prior studies to attempt to shore it up. On this record, an unknown figure raised to any power remains unknown.
The Government's reliance on past studies is equally unconvincing. The Government offers no evidence as to how Dr. Lamberth conducted past inter-rater reliability tests, rendering them no more trustworthy than the one conducted here involving only ten drivers. Moreover, even assuming Rivera's inter-rater agreement
Further, the surveyors' error rate in identifying North Carolina law violations is completely unknown.
This court also questions whether the observational methodology Dr. Lamberth used in this case is generally accepted in the relevant scientific field. See Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786. The Government offers Dr. Lamberth as an expert in studying patterns of traffic enforcement. (Doc. 148 at 37.) The Government, however, offers little to demonstrate the general acceptance of Dr. Lamberth's observational benchmarking techniques used to measure traffic enforcement patterns as applied to Hispanics.
Although never testifying that his methodology used in this case is generally-accepted within any scientific field, Dr. Lamberth testified that other researchers have used a similar benchmarking methodology in North Carolina. (Id. at 169.) He also opined that certain aspects of his study, such as the inter-rater reliability test and surname analysis, have been accepted. (Id. at 58, 91.)
Critically, though, the Government offers nothing to show that Dr. Lamberth's roadside observational method for identifying Hispanic violators is generally accepted in a scientific field. As noted earlier, the articles the Government relies on to demonstrate the reliability of Dr. Lamberth's study do not involve Hispanics or the same observational techniques conducted here.
In fact, one of the articles that Dr. Lamberth and the Government cite directly
When discussing the roadside observation methodology used in this case, however, the Smith article reaches a different conclusion, undermining Dr. Lamberth's opinions:
Id. at 252-53 (emphasis added). While certainly not dispositive on the issue of general acceptance, this article highlights the lack of support for the particular method of observation used in this case.
Finally, although the Government cites case law accepting Dr. Lamberth's work, a more extensive search reveals quite the
Several decisions analyzing the exact methodology performed by Dr. Lamberth in this case, however, have questioned that methodology. For example, in United States v. Alcaraz-Arellano, 302 F.Supp.2d 1217 (D.Kan.2004), aff'd, 441 F.3d 1252 (10th Cir.2006), the court found Dr. Lamberth's study to be unreliable, noting:
Id. at 1229-30; see also id. (noting further that "a better method of gathering benchmark data is to have two or three surveyors look at the same car and compare results to measure the extent to which surveyors uniformly perceived race"). Another decision observed, "[G]iven that race is merely a social construct, the Lamberth study ... ha[s] not resolved the inherent difficulties in identifying the race or ethnicity of a particular person." United States v. Parada, 289 F.Supp.2d 1291, 1305-06 (D.Kan.2003). Two other decisions found Dr. Lamberth's methodology "suspect," noting "flaws" such as the "short period of time" surveyors had to record information as vehicles passed. United States v. Duque-Nava, 315 F.Supp.2d 1144, 1158 (D.Kan.2004); Mesa-Roche, 288 F.Supp.2d at 1190.
Most surprising, in these cases critiquing Dr. Lamberth's methodology, is the revelation that the Government was the party opposing his methodology as unreliable. See Alcaraz-Arellano, 302 F.Supp.2d at 1230 (agreeing with Government's expert that it would be "difficult" to conduct Lamberth's observational methodology); Mesa-Roche, 288 F.Supp.2d at 1190 (rejecting "government's criticism that the entire Lamberth study should be disregarded because it rests on an invalid presumption").
To summarize, the Government points to only one study and one case accepting observations of Hispanics and no studies or cases approving of the same observational methodology used in this litigation. This showing is far from demonstrating general acceptance of the methodology Dr. Lamberth employed in this case. See Cooper, 259 F.3d at 199.
Considering all factors related to Dr. Lamberth's testimony, the court is not persuaded that Dr. Lamberth's opinions are sufficiently reliable and valid to be admissible under Rule 702 of the Federal Rules of Evidence. Dr. Lamberth's observations and analysis may be helpful on a consulting basis to encourage a law enforcement agency to further examine its practices, but they simply fail to be reliable and to produce valid results to be admissible in this case. Therefore, Sheriff Johnson's motion to exclude the testimony of Dr. Lamberth will be granted.
Even if Dr. Lamberth's study were admissible, this court would not accept his conclusions as credible for several reasons.
First, Dr. Lamberth's testimony directly contradicts his prior writings. At trial, he testified that the most accurate benchmark for determining disparities in traffic enforcement was law violators rather than all traffic. (Doc. 148 at 170.) Yet, in the book By the Numbers, Dr. Lamberth authored an appendix offering the exact opposite conclusion. Lamberth et al., "Making the Case for Measuring `Who Is Driving' Instead of `Who Is Violating,'" in Lorie Fridell, By the Numbers: A Guide for Analyzing Race Data from Vehicle Stops 411 (2004). In that appendix, Dr. Lamberth concludes, "We believe that it is not necessary or possible to develop a benchmark that adequately measures the factors that influence a police officer to stop a particular vehicle." Id. at 416 (emphasis added); see also id. at 415 ("[C]ategorizing hundreds of possible violations is an insurmountable task."). Dr. Lamberth reached this conclusion, in part, by noting the "important argument ... that there are literally hundreds of traffic violations for which a motorist can be legally stopped." Id. at 414-15 (observing the "subjective" nature of measuring traffic violations).
Dr. Lamberth's methodology and testimony further conflicts with his prior opinions in the By the Numbers appendix on the effectiveness of stationary observation sites. Here, Dr. Lamberth used stationary observational sites to measure traffic violations, and he opined that those sites allowed for "a very complete set of" traffic violation observations. (Doc. 148 at 64-68.) In his prior work, however, Dr. Lamberth unequivocally states,
Lamberth, supra, at 415 (emphasis added); see also Kadane & Lamberth, supra, at 143 ("Observing the race/ethnicity of a motorist from a vehicle is easier to do than from a stationary point on the roadway because the observer is closer to the observed individual ... and has more time to make the observation.").
In addition to the contradictions in the appendix he authored in By the Numbers, Dr. Lamberth also offered differing opinions on surveyors' ability to identify Hispanic drivers. At trial, Dr. Lamberth downplayed difficulties in identifying Hispanic drivers. (Doc. 148 at 127.) Counsel for Sheriff Johnson, however, impeached this testimony by citing Dr. Lamberth's prior work, in which he states "it is easier to identify black motorists visually than it is for Hispanic motorists." (Id.) Moreover, Frasier, a former sheriff and the Government's expert in law enforcement practices and procedures, confirmed the unreliability of Dr. Lamberth's methods in the context of this case:
(Doc. 151 at 92.)
In sum, Dr. Lamberth repeatedly contradicts himself and abandons previously-held (and commonsensical) views to bolster the methodology he used in this litigation. This type of self-serving testimony seriously undermines his credibility and leads the court to reject his expert testimony.
The Government moves to exclude the testimony of Dr. Banks.
The Government contests Dr. Banks' qualifications to critique the work of Drs. Lamberth and MacDonald. (Doc. 115 at 16-21; Doc. 153 at 90-91.) A witness "may testify in the form of an opinion" when that witness "is qualified as an expert by knowledge, skill, experience, training, or education." Fed.R.Evid. 702. "[A] witness may be qualified as an expert on any one of the five listed grounds." Friendship Heights Assocs. v. Vlastimil Koubek, A.I.A., 785 F.2d 1154, 1159 (4th Cir.1986). According to the Fourth Circuit,
Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.1993) (quoting Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 799 (4th Cir. 1989)); see also Martin v. Fleissner GmbH, 741 F.2d 61, 64 (4th Cir.1984) (holding that a "lack of direct experience is not a sufficient basis to reject [a proposed expert's] testimony, but may affect the weight that testimony is given, a decision properly made by the [fact finder]"). "The witness' qualifications to render an expert opinion are also liberally judged by Rule 702." Kopf, 993 F.2d at 377.
First, the Government contends that Dr. Banks lacks the expertise to testify on Dr. Lamberth's use of surname analysis and observational benchmarking. (Doc. 115 at 16-18.) The court finds Dr. Banks qualified to testify on those subjects. Throughout his career, Dr. Banks has supervised individuals performing surname analyses, and he has also published on surname analysis. (Doc. 153 at 139.) Dr. Banks further sits on the Human Rights Data Analysis Group, which utilizes surname analysis when performing records linkage to identify civilian casualties in areas of conflict. (Id. at 140.) As to observational benchmarking, while acting as the chief statistician at the U.S. Department of Transportation, Dr. Banks analyzed a written report on racial profiling on the New Jersey Turnpike. (Id. at 81.) At trial, Dr. Banks also demonstrated his familiarity with the observational method employed by Dr. Lamberth. When asked about his experience with observational studies, Dr. Banks cited several papers and a book on
Second, the Government argues that Dr. Banks lacks the qualifications necessary to critique Dr. MacDonald's statistical analysis because Dr. Banks is not a criminologist. (Doc. 115 at 18-21; Doc. 153 at 90-91.) The Government's argument is unpersuasive. Without belaboring the obvious, Dr. Banks is a well-qualified statistician. During his career as a statistician, he has worked with the Fatality Analysis Reporting System — a law enforcement dataset. (Doc. 153 at 81-82.) At trial, Dr. Banks provided statistical and mathematical opinions on Dr. MacDonald's study. He offered critiques of Dr. MacDonald's studies, including the use of a linear regression analysis (id. at 128-29); the methods by which Dr. MacDonald reached his statistical conclusions regarding hit rates (id. at 125-26); Dr. MacDonald's performance of a specific statistical test (id. at 130-31); and the use of variable controls in Dr. MacDonald's post-stop outcome analyses (id. at 129-30). Dr. Banks is undoubtedly qualified to offer those opinions on the statistical methods of the Government's experts.
The Government also contends that Dr. Banks' testimony on ACSO's traffic stops, checkpoint stops, checkpoint arrests, and checkpoint placement is inadmissible. (Doc. 115 at 3-16; Doc. 158 at 110-15.)
As noted earlier, Rule 702 imposes a "gatekeeping obligation" on trial judges to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Kumho Tire Co., 526 U.S. at 147, 119 S.Ct. 1167 (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786). The same factors addressed in connection with the analysis of Dr. Lamberth's testimony apply here. As the proponent of the evidence, Sheriff Johnson bears the burden of establishing the admissibility of Dr. Banks' expert testimony by "a preponderance of proof." See Cooper, 259 F.3d at 199. Applying these factors and for the reasons noted below, the court finds Dr. Banks' expert testimony admissible.
First, the Government argues that Dr. Banks' analysis of ACSO's traffic stops lacks reliability. The contention is based on a twofold argument: (1) Dr. Banks used unadjusted Census data rather than "risk adjusted" data as a benchmark; and (2) Dr. Banks failed to account for county differences when making comparisons across counties. (Doc. 115 at 3-10; Doc. 158 at 112-13.) Neither argument is persuasive, and the court finds the analysis admissible.
As to Dr. Banks' use of unadjusted Census data, the Government's reliability contention misunderstands the purpose for which Sheriff Johnson offered Dr. Banks' traffic stop study as well as the study's use of Census data. In his traffic stop analysis, Dr. Banks compared, across several North Carolina counties, the ratios of traffic stops in each county with that county's unadjusted Census data as to Hispanics and non-Hispanics.
Second, the Government charges that Dr. Banks failed to "account for any differences among the selected counties to ensure their comparability to Alamance." (Doc. 158 at 113.) Dr. Banks acknowledged that unadjusted Census data somewhat imprecisely gauged population totals. (Doc. 153 at 105.) However, he explained that his analysis "did not require that the actual census count be correct. It only required that the inaccuracy in the census count for Alamance County be about the same as the inaccuracy of the census count for [the other counties]." (Id. at 105-06, 198.) Based on his experience working with U.S. Census data and its adjustments, Dr. Banks testified that he was aware that, through "pooling information" on Hispanic population figures, the U.S. Census makes the same or similar adjustments to all population estimates in nearby counties. (Id. at 148.) Consequently, any lack of adjustment caused nearly identical inaccuracies across the counties in his study. (Id. at 148, 198-99.) Further, he testified, there was no set of adjustments a statistician could make to the Census data. (Id. at 105.) The dominant factor in his analysis is whether a motorist operated his vehicle in a safe way, yet there was no way to adjust for driving behavior. (Id. at 143-45.) So, performing other "minor" adjustments would have been "misinformative." (Id. at 143-45 (noting that "it is perilous to adjust for second-order effects when you have first-order effects that are outstanding").)
The Government next maintains that Dr. Banks' study of ACSO's checkpoint stops suffers from reliability issues. Here, too, the Government challenges Dr. Banks' use of unadjusted Census data to make comparisons across counties. For the sake of brevity, the court will not repeat its previous analysis and, for the reasons stated above, finds the Government's challenge equally unpersuasive.
The Government also challenges Dr. Banks' explanations for why his finding that 36% of those stopped at ACSO checkpoints were Hispanic (id. at 99, 106) is not necessarily evidence of discrimination. (Doc. 115 at 10-12; Doc. 158 at 110-12.) In addressing the 36% figure, Dr. Banks cited literature supporting one of his possible explanations. (Doc. 153 at 99, 110-11.) Generally, the Government argues that two of Dr. Banks' proffered explanations lack evidentiary support in the record. The Government's argument, however, is directed toward the weight and persuasiveness of Dr. Banks' explanations rather than their admissibility. See In re Prempro Prods. Liab. Litig., No.
The Government also challenges the reliability of Dr. Banks' study of ACSO's checkpoint arrests. Dr. Banks analyzed the outcomes from checkpoint stops for 10% of the checkpoints conducted by ACSO between 2009 and 2012. (Doc. 153 at 112.) The Government argues that Dr. Banks' analysis of 10% of checkpoints "is less probative than Dr. MacDonald's analysis of all arrests from checkpoints."
The Government finally argues that the permutation test that Dr. Banks performed analyzing ACSO's checkpoint placement is unreliable. The Government argues that Dr. Banks assumes that "the checkpoint locations actually used by ACSO constitute the universe of all possible checkpoint locations."
To be sure, Dr. Banks acknowledged the assumptions he made in his permutation study. (Doc. 153 at 97-99.) Yet, the Government provided no evidence of other available sites to contradict Dr. Banks' methodological assumption that the checkpoint data represented all possible checkpoint sites in the County. In fact, ACSO's evidence demonstrated that its checkpoint locations must meet certain safety and logistical standards, limiting "the universe" of permissible locations. The court accepts the 305 sites used in the permutation test — every location at which ACSO conducted a checkpoint in the past four years — as a reasonable reflection of available sites in the County. Dr. Banks' analysis using those 305 sites does not render his study unreliable and thus inadmissible.
Importantly, the Government makes no argument that Dr. Banks' permutation test is statistically unreliable. Rather, the Government contends that his study is "meaningless" and of little probative value. (Doc. 115 at 14-15; Doc. 158 at 114-15.) Those arguments concern the relative import and persuasiveness of Dr. Banks' study rather than its admissibility as a matter of statistical science. See United States v. Cavely, 318 F.3d 987, 997-98 (10th Cir.2003); Covic v. Berk, No. 11-2571-STA-DKV, 2014 WL 4546806, at *4 (W.D.Tenn. Sept. 12, 2014); Wilspec Technologies, Inc. v. Dunan Holding Grp. Co., No. CIV-06-818-L, 2008 WL 7254328, at *1 (W.D.Okla. June 20, 2008). Thus, the Government's motion to strike Dr. Banks' permutation test as unreliable within the meaning of Rule 702 is denied.
Prior to trial, the Government moved the court to draw an adverse inference against Sheriff Johnson based on alleged spoliation of evidence. (See Doc. 131.) Sheriff Johnson responded (Doc. 139), and the Government replied (Doc. 145). On August 8, 2014, the court heard argument on the Government's motion and took it under advisement. (Doc. 156 at 51-52.) At the close of evidence, noting that the motion was still outstanding, the court made no final ruling. (Doc. 155 at 44.) In its post-trial filing, the Government renews its request for an adverse inference (Doc. 158 at 121 & n. 31), and Sheriff Johnson argues that the motion be denied (Doc. 157 at 16-20). For the reasons set forth below, the Government's motion for an adverse inference will be denied.
The Government contends that on June 28, 2011, before the filing of the present action, a former ACSO employee called an attorney for the Government and informed the attorney that, around June 15, 2011, Sheriff Johnson had directed deputies at a checkpoint in Green Level to "arrest any `Mexicans' who did not have driver's licenses." (Doc. 131-2 ¶¶ 4-5.) Whoever allegedly heard this alleged statement never testified, and no evidence regarding it was presented at trial.
On July 15, 2011, Kitchen explained to the Government attorney that he was appearing in order to represent the ACSO deputies during the DOJ's investigation. (Doc. 139-5.) The Government attorney acknowledged that, after the appearances by counsel, Kitchen — not Albright — represented Sheriff Johnson and ACSO, but it disputed Kitchen's authority to appear during interviews of deputies as their individual counsel. (Id.) On July 20, 2011, the Government repeated its preservation request and included Kitchen on the email. (Doc. 131-5.)
The C-COMM system used by ACSO is under the control of Alamance County — not ACSO. (Doc. 156 at 41-42.) Employees controlling the system work for Alamance County — not ACSO. (Id. at 42.) ACSO employees have neither the knowledge nor ability to preserve C-COMM recordings. (Id. at 41.)
Thus, after receiving the June 30 email, Albright, as the Alamance County Attorney, sought to have the requested C-COMM recordings preserved. (Id. at 39.) He testified that he met with the C-COMM director, Dexter Bower, and Paula Crotts (the same individual involved in the previously mentioned checkpoint), informing them of the Government's request.
The Government argues that, because the C-COMM recordings were lost, it is entitled to an adverse inference that a particular "recording — had it been preserved — would have contained evidence of Defendant's discriminatory intent," specifically that "Sheriff Johnson stated `If he's Hispanic, take him to jail.'" (Doc. 158 at 121 & n. 31; see also Doc. 131.) The Government, however, has failed to demonstrate that the loss of the C-COMM recording merits an adverse inference against Sheriff Johnson.
"Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.2001). If a finding of evidence spoliation is made, "the trial court has broad discretion to permit a jury to draw adverse inferences from a party's failure to present evidence, the loss of evidence, or the destruction of evidence." Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.1995). Application of an adverse inference requires a showing that a party (1) knew that certain evidence was relevant to some issue at trial; (2) had that evidence within its control; and (3) caused the loss of the evidence through its willful conduct. See Vulcan Materials Co. v. Massiah, 645 F.3d 249, 259-60 (4th Cir. 2011); Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 526 (D.Md. 2010) ("[A]n adverse inference instruction makes little logical sense if given as a sanction for negligent breach of the duty to preserve, because the inference that a party failed to preserve evidence because it believed that the evidence was harmful to its case does not flow from mere negligence.").
Sheriff Johnson did know that the requested information was relevant. In its June 30 letter to Albright, the Government clearly states that the recordings "may contain information relevant to" the Government's investigation. (Doc. 131-3 at 2.) Moreover, the Government repeated this request in its July 20 email, and Kitchen — acting as attorney for Sheriff Johnson — received a copy of that request. (Doc. 131-5 at 2.) Although counsel for Sheriff Johnson claims he did not know why the recordings were relevant, he did know that the Government believed they were. That is sufficient to trigger a duty to preserve. See Silvestri, 271 F.3d at 591 (observing that the duty to preserve arises "not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation").
That being said, the Government has not shown that Sheriff Johnson had control of the recordings or that the loss of the recordings was the result of willful conduct. First, Sheriff Johnson had no control over the recordings because the C-COMM system operates under the direction and control of Alamance County and not ACSO. (Doc. 156 at 41-42.) Sheriff Johnson and Alamance County are different legal entities. Neither he nor his deputies is an employee or agent of the county. See Capers v. Durham Cnty. Sheriff Dep't, 1:07cv825 (M.D.N.C. July 17, 2009) (Doc. 85), adopting recommendation, 2009 WL 798924, at *6 (M.D.N.C. March 23, 2009); McLaughlin v. Bailey, ___ N.C.App. ___, 771 S.E.2d 570, 576 (2015); Clark, 450 S.E.2d at 749. Therefore, because the C-COMM system and its recordings are under the control of Alamance County, Sheriff Johnson did not have control over the
In addition, no evidence suggests that the loss of the recordings was the result of either willful destruction or loss by Sheriff Johnson. See Turner v. United States, 736 F.3d 274, 282 (4th Cir.2013) ("[S]poliation does not result merely from the `negligent loss or destruction of evidence.'" (quoting Vodusek, 71 F.3d at 156)). If any misconduct occurred, it was by C-COMM staff and Alamance County, which operate outside of Sheriff Johnson's control. At best, this leaves the Government with the assertion that Kitchen somehow conspired to allow the recordings to be destroyed. But, there is no evidence of that. While there remains a factual dispute between County Attorney Albright and County/C-COMM employee Crotts about the nature of Albright's preservation requests, the presence of Crotts' July 6, 2011 email to Albright is strong evidence that he made the preservation request. And Albright's testimony that he forwarded Crotts' responsive email and dispatch attachments to Kitchen (Doc. 156 at 39-40) is evidence that Kitchen — as attorney for Sheriff Johnson — had a reasonable belief that Albright had made the necessary requests to C-COMM to preserve the recordings. Thus, the lack of willful conduct evidence also precludes an adverse inference against Sheriff Johnson, and the motion will be denied.
At trial, counsel for Sheriff Johnson moved to strike the testimony of former lieutenant Kenneth Evans based on an alleged violation of Rule 4.2 of North Carolina's Professional Rules of Conduct. See L.R. 83.10e(b) (adopting North Carolina's ethical rules). Rule 4.2 states,
In its post-trial filing, the Sheriff claims that Government counsel violated Rule 4.2 by speaking with Evans without the counsel for the Sheriff present. (See Doc. 147 at 65 (containing Evans' testimony that he met with the Government prior to litigation)). For several reasons, Sheriff Johnson's motion to strike Evans' testimony will be denied.
First, Sheriff Johnson argues that "the issue" of whether the Government could "interview deputies without the presence of the attorney for the Sheriff" has been "previously determined, and is therefore res judicata." (Doc. 157 at 89.) In making this argument, Sheriff Johnson references the prior lawsuit by the DOJ seeking a declaratory judgment against Sheriff Johnson, ACSO, and Alamance County. (Id.) More specifically, that lawsuit sought a declaration that Rule 4.2 permitted DOJ's attorneys to interview certain ACSO non-command staff and all former ACSO employees outside the presence of Defendants' counsel. United States v. Alamance Cnty., No. 1:11-cv-507 (M.D.N.C. June 23, 2011) (Doc. 1). After Alamance County moved to dismiss the Government's complaint and the Government moved for summary judgment, the Government filed an unopposed motion to dismiss its action as moot. United States v. Alamance Cnty., No. 11-cv-507 (M.D.N.C. Sept. 18, 2012) (Doc. 51). This court entered an Order dismissing the action with prejudice. United States v. Alamance
Sheriff Johnson, however, cites no authority explaining how this court's Order granting the Government's voluntary dismissal operates as res judicata in this case.
Also, in addition to the absence of argument on the applicability of res judicata, Sheriff Johnson offers only the conclusion that the Government violated Rule 4.2 without citing any case law or legal rule explaining how the Government violated the rule. See, e.g., N.C. R. Prof'l Conduct 4.2, cmt. 9 (prohibiting communications with only certain employees within an organization); United States v. Joseph Binder Schweizer Emblem Co., 167 F.Supp.2d 862, 866 (E.D.N.C.2001) (holding, in a criminal case, that the federal government could meet with persons unrepresented by counsel pre-indictment because it was "authorized by law to do so"). Sheriff Johnson's unsupported legal conclusions fail to comply with this court's Local Rules. See Local Rule 7.2(a)(4) (requiring that briefs contain "all statutes, rules and authorities relied upon"). The court need not, and will not, devise arguments or scour case law to support a party's legal conclusions. See Hayes v. Self-Help Credit Union, No. 1:13-CV-880, 2014 WL 4198412, at *2 (M.D.N.C. Aug. 22, 2014) ("It is not the role or the responsibility of the Court to undertake the legal research needed to support or rebut a perfunctory argument."). Thus, Sheriff Johnson's motion to strike Evans' testimony will be denied.
Moreover, even assuming without deciding that counsel for the Government violated Rule 4.2, there is no evidence that the assumed violation prejudiced Sheriff Johnson at trial. See United States v. Quest Diagnostics Inc., 734 F.3d 154, 167 (2d Cir.2013) (noting that the "relevant inquiry" for determining a remedy to an ethical violation is the "possibility of prejudice at trial" (quoting U.S. ex rel. Fair Lab. Practices Assocs. v. Quest Diagnostics Inc., No. 05 CIV. 5393, 2011 WL 1330542, at *11 (S.D.N.Y. Apr. 5, 2011) (internal quotation marks omitted))); McCallum v. CSX Transp., Inc., 149 F.R.D. 104, 113 (M.D.N.C.1993) ("The nature and extent of prejudice suffered or likely to be suffered in the future by the other parties is also a relevant consideration. While the sports based aphorism `No harm; No foul' cannot be wholly transplanted to matters involving ethical violations, the extent of harm cannot be ignored."). Sheriff Johnson certainly points to none. There is also no evidence that Evans' statements to the Government's attorney were used at trial. Rather, Sheriff Johnson simply argues that a violation of Rule 4.2 occurred and that Evans' testimony should therefore be struck. (See Doc. 157 at 89-90.) Thus, even if an ethical violation had occurred, the lack of any apparent harm or prejudice resulting from the allegedly unethical contact with Evans would similarly doom Sheriff Johnson's motion to strike the lieutenant's testimony. See Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489, 502 (7th Cir.2013) ("[W]hen an ethical breach neither prejudices an attorney's client nor undermines the integrity
On the merits, the Government brings two claims under 42 U.S.C. § 14141. First, it contends that the evidence offered at trial establishes that ACSO engaged in a "pattern or practice" of Fourteenth Amendment violations. Second, it maintains that ACSO committed a "pattern or practice" of Fourth Amendment violations.
Section 14141 of Title 42 — titled "Cause of Action" — reads in full:
The statute does not define what constitutes a "pattern or practice" of constitutional rights deprivations. Both the Government and Sheriff Johnson provide only a single citation to the Supreme Court's decision in Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), an employment discrimination case under Title VII of the Civil Rights Act of 1964, as the interpretative source for § 14141's "pattern or practice" requirement. (See Doc. 157 at 90; Doc. 158 at 82.) Section 14141's legislative history similarly sheds no interpretive light on the "pattern or practice" standard. See Marshall Miller, Police Brutality, 17 Yale L. & Pol'y Rev. 149, 165-66 & n. 109 (1998) (observing that "the direct legislative history of § 14141 is virtually non-existent").
That being said, the legislative history of § 14141's predecessor bill, the Police Accountability Act of 1991 ("PAA"), H.R. 2972, 102nd Cong. (1991), offers some, albeit limited, assistance in interpreting § 14141. See H.R. 3371, 102d Cong. § 1202 (1991); H.R.Rep. No. 102-242, pt. 1 (1991). The predecessor bill contained language nearly identical to § 14141 and particularly the "pattern or practice" phrasing. See H.R. 3371, 102d Cong. § 1202(a)(1) (1991). In a 1991 report on the PAA, the House Judiciary Committee ("the Committee") included its interpretation of the "pattern or practice" expression. H.R.Rep. No. 102-242, pt. 1, at 137-39 (1991). It began by noting that "[t]he Justice Department currently lacks the authority to address systemic patterns or practices of police misconduct." Id. at 137. The Committee then drew a parallel to the
Given the limited background provided by the Committee on a bill other than § 14141, other judicial constructions of the phrase "pattern or practice" provide further guidance. The parties have not identified any federal decision that has applied § 14141's "pattern or practice" standard. The court has found one recent decision applying § 14141's standard on a motion for summary judgment, but that decision offers little interpretive guidance.
Two areas of law — employment discrimination and § 1983 litigation — prove particularly useful. First, as both parties urge, in the employment context the Supreme Court has observed, "[T]he `pattern or practice' language ... of Title VII ... was not intended as a term of art, and the words reflect only their usual meaning." Int'l Bhd. of Teamsters, 431 U.S. at 336 n. 16, 97 S.Ct. 1843. To demonstrate a "pattern or practice" claim under Title VII, the Government must "prove more than the mere occurrence of isolated... or sporadic discriminatory acts"; it must demonstrate that the acts were "standard operating procedure — the regular rather than the unusual practice." Id. at 336, 97 S.Ct. 1843; see also id. at 336 n. 16, 97 S.Ct. 1843 ("[A] pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature." (quoting 110 Cong. Rec. 14,270 (1964))); Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 877-78, 104 S.Ct. 2794, 81
Second, the Supreme Court has required "a pervasive pattern," "persistent and widespread discriminatory practices of state officials," or "systematic maladministration" to establish a governmental "custom" of constitutional rights deprivations under 42 U.S.C. § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 685 n. 45, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (reversing lower court's findings of a pattern of police misconduct); see also Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 403 (4th Cir.2014) ("Sporadic or isolated violations of rights will not give rise to Monell liability; only `widespread or flagrant' violations will." (quoting Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987))). As other commentators have observed, the federal government's inability to bring a § 1983 action appears to be a motivating force behind § 14141's enactment. See, e.g., Miller, supra, at 166-69.
With this background in mind, the court turns to each of the Government's § 14141 claims.
The Government first alleges that ACSO violated § 14141 by engaging in a pattern or practice of discriminatory law enforcement directed against Hispanics in violation of the Fourteenth Amendment. The Fourteenth Amendment's Equal Protection Clause bars any state from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
Proving an equal-protection claim involves a two-step analysis. First, the Government must demonstrate the unequal treatment of a person or group of persons as compared to similarly situated individuals. See id.; Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.2001). According to the Fourth Circuit, unequal treatment constituting an equal protection violation "occurs in one of two ways: (1) when the government explicitly classifies people based on race, or (2) when a law is facially neutral, but its administration or enforcement disproportionately affects one class of persons over another and a discriminatory intent or animus is shown." Monroe v. City of Charlottesville, 579 F.3d 380, 388 (4th Cir.2009). Express classifications are those that are "explicitly stated on the face of a statute or in the reasons given for its administration or enforcement." Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 819 (4th Cir.1995). Suspect facially neutral classifications are simply
Second, this court must "determine whether the disparity in treatment can be justified under the requisite level of scrutiny." Morrison, 239 F.3d at 654. "The level of scrutiny depends on the type of classification." Sansotta v. Town of Nags Head, 724 F.3d 533, 542 (4th Cir. 2013).
Here, the Government contends that ACSO's law enforcement policies reflect both an express classification and a facially neutral, but nevertheless discriminatory, classification. (See Doc. 158 at 84.) The Government argues that ACSO bases those classifications on ethnicity.
The Government first claims that ACSO's law enforcement practices and policies expressly classify individuals based on their ethnicity. (See Doc. 158 at 84.) Laws, policies, and practices "that explicitly distinguish between individuals" on the basis of ethnicity "fall within the core of" the Equal Protection Clause. Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). While oral statements of government officials have rarely been held to be express classifications, one court has held that such statements expressly classify but "only ... at the managerial level, when commanders and supervisors acting in accordance with the policy instruct officers to target racially defined groups for stops." Floyd, 959 F.Supp.2d at 663 n. 768.
In support of its contention, the Government argues that two sets of facts demonstrate a pattern or practice of express classifications:
To be sure, the record reveals no evidence that ACSO had a policy — written or unwritten — that expressly classified Hispanics. The Government points to no ACSO document containing any policy, and no witness testified to any. Rather, the Government relies on testimony as to Sheriff Johnson's verbal directives to arrest Hispanics on these limited occasions and evidence that all deputies are duty-bound to carry out all of the Sheriff's orders. It is a weak claim, however. There was no evidence that even a single person — including those claiming they heard such an alleged order — implemented or executed any such directive.
While not controlling, it is notable that the Government's express classification evidence falls far short of that found sufficient in two recent, analogous cases. In Floyd v. New York City, the district court
What little context there is for the statements in this case fails to support the Government's characterization. Officer Lloyd testified that, while assisting at a checkpoint at the predominantly Hispanic Rocky Top mobile home park, then-Chief Deputy McPherson initially reported that Sheriff Johnson had said that any Hispanics driving without a driver's license or driving with a revoked license should be arrested.
The Government's theory also requires a strained interpretation of other trial evidence. The Government contends that Sheriff Johnson made these statements because he wanted to move Hispanics through the 287(g) program and reap the financial benefit from housing federal detainees. But, as noted, the Government offered no evidence as to how many (or few) Hispanics arrested by ACSO were booked into the ACDC and subjected to 287(g) questioning — figures almost certainly available to the Government.
Finally, Sheriff Johnson also denies that he ever gave any such order either at a staff meeting or checkpoint, and he denies even having been present at the checkpoint testified to by Officers Lloyd, Perry, and Evans. The Sheriff's testimony was corroborated by that of nine ACSO employees — some of whom were offered by the Government — who also testified that they had never heard him give an instruction to arrest Hispanics at an ACSO meeting. As to the alleged statement at the checkpoint, Chief Deputy Britt stated that ACSO only conducted an informational checkpoint following a series of break-ins in the area where Sheriff Johnson allegedly made the statement. No checkpoint data corroborating the Government's witnesses' testimony was presented. And, while the court relies on the quality of the evidence and not the number of witnesses on any particular issue, it notes that each person testifying to having heard the statements carried some credibility burden, affecting how they attempted to characterize what they say they heard.
Thus, in light of this conflicting and limited evidence, the court is not persuaded that a directive classifying Hispanics existed, as the Government suggests.
But, beyond this difficulty is the Government's failure to prove that the alleged statements, even assuming they were made, would establish a "pattern or practice" of Fourteenth Amendment violations as required by § 14141.
To demonstrate a pattern or practice, the Government must "prove more than the mere occurrence of isolated ... or sporadic discriminatory acts." Int'l Bhd. of Teamsters, 431 U.S. at 336, 97 S.Ct. 1843 (concluding that discriminatory actions must have been the "standard operating procedure [-] the regular rather than the unusual practice"); see also Monell, 436 U.S. at 690-91, 98 S.Ct. 2018 (requiring proof of "persistent and widespread discriminatory practices of state officials"). This inquiry is a fact-specific one. See United States v. Cochran, 39 F.Supp.3d 719, 730-31 (E.D.N.C.2014).
Here, the Government cites two or three alleged instances approximately five to seven years ago, each with little context for Sheriff Johnson's alleged oral instruction to arrest Hispanics and with no individual being shown to have carried it out or have been subjected to it. That evidence is insufficient to establish a pattern or practice under prevailing case law. See Cooper, 467 U.S. at 878-79, 104 S.Ct. 2794 (concluding that "the statistical evidence, buttressed by expert testimony and anecdotal evidence by three individual[s] ... was not sufficient to support the finding of a pattern of ... discrimination"); Ste. Marie v. E. R.R. Ass'n, 650 F.2d 395, 405 (2d Cir.1981) (holding that seven acts of discrimination, consisting of three denials of promotions, two failures to promote, and two rejections of applications, could not, without more, support a finding of a pattern or practice); cf. Int'l Bhd. of Teamsters, 431 U.S. at 337-39, 97 S.Ct. 1843 (observing the bolstering of statistical evidence of a pattern or practice with "over 40 specific instances of discrimination" demonstrated pattern or practice); Chisholm v. U.S. Postal Serv., 665 F.2d 482,
Given all the evidence presented at trial and considering the totality of the circumstances, the Government therefore fails to demonstrate a pattern or practice of express, ethnic classifications in violation of the Fourteenth Amendment and § 14141.
The Government alternatively argues that ACSO's law enforcement practices and policies have a discriminatory effect on Hispanics and are motivated by discriminatory animus toward them. (Doc. 158 at 84, 89.) When challenging a facially neutral classification, a plaintiff must prove both the discriminatory effect of and discriminatory purpose behind that classification. See Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) ("[E]ven if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose."); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-68, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 238-42, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
To demonstrate a Fourteenth Amendment claim, a plaintiff must demonstrate discriminatory effect by showing the unequal treatment of a person or persons as compared to other similarly situated individuals. See City of Cleburne, 473 U.S. at 439, 105 S.Ct. 3249; Morrison, 239 F.3d at 654. When considering discriminatory effect in the context of selective law enforcement under the Fourteenth Amendment, courts generally rely on the Supreme Court's decision in United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). See, e.g., Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 533-34 (6th Cir.2002) (obligating plaintiffs to demonstrate that "similarly situated individual[s]" received different treatment from them to prove selective enforcement claim); Chavez, 251 F.3d at 636; United States v. Dixon, 486 F.Supp.2d 40, 44-47 (D.D.C.2007).
In Armstrong, the Supreme Court addressed the evidence necessary to prove discriminatory effect for a claim of selective prosecution rather than selective law enforcement. 517 U.S. at 465-71, 116 S.Ct. 1480. Attempting to obtain discovery, the Armstrong defendant had presented evidence that, "in every one" of twenty-four cocaine base cases closed by the public defender's office, the defendant was black. Id. at 459, 116 S.Ct. 1480. The appeals court found this evidence sufficient to permit the plaintiff to obtain discovery, concluding that, as a general rule, a defendant need not show that the government failed to prosecute individuals similarly situated to him. Id. at 469, 116 S.Ct. 1480. The Supreme Court disagreed, rejecting the appeals court's omission of the similarly situated requirement and finding instead that "[t]he requirements for a selective-prosecution claim draw on `ordinary equal protection standards.'" Id. at 465, 116 S.Ct. 1480 (quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)). Applying these "ordinary equal protection standards," the Supreme Court reiterated, "To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." Id. In doing so, "[t]he Supreme Court made clear that the similarly situated requirement could not be discarded, reaffirming that the requirement
The Fourth Circuit appears to align with those courts looking to Armstrong for interpretative guidance, as it relied on Armstrong to deny a defendant's claim of selective law enforcement (as opposed to selective prosecution). See United States v. Bullock, 94 F.3d 896, 899 (4th Cir.1996) (noting Armstrong's "rigorous standard for proving such a violation"); see also Farm Labor Org. Comm., 308 F.3d at 533-34; Chavez, 251 F.3d at 636; Dixon, 486 F.Supp.2d at 44-45. The Government offers no argument that Armstrong or the Equal Protection Clause's similarly situated requirement do not apply in this case, and, in fact, both the Government's complaint and brief acknowledge and apply the "similarly situated" requirement.
In this case, the Government aims to prove discriminatory effect largely by relying on statistical evidence of disparities in ACSO's law enforcement practices.
For purposes of this case, the court accepts that the discriminatory effect of selective law enforcement can be demonstrated through the use of statistical evidence of similarly situated individuals. There are several reasons for doing so. None of the cases appearing to require identification of specific, similarly situated individuals in a selective law enforcement case was actually presented with statistical evidence of discriminatory effect. See, e.g., Viezca, 555 F.Supp.2d at 1267 & n. 7. Moreover, the Supreme Court has never held that statistical evidence is insufficient to prove a claim of selective prosecution. See Chavez, 251 F.3d at 638 (explaining that the Armstrong Court rejected statistical evidence "not because plaintiffs can never use statistics to prove discriminatory effect, but because the particular statistics presented to the [Armstrong] Court did not address the relevant issue" of whether similarly situated individuals received dissimilar treatment); see also United States v. Hastings, 126 F.3d 310, 316 (4th Cir. 1997) (examining, in dicta, a defendant's statistical evidence in the context of a selective prosecution case). Rather, the Supreme Court has repeatedly held that the use of statistical evidence alone is usually an acceptable and sufficient method of proving discriminatory effect in its equal protection analysis. See, e.g., Hunter v. Underwood, 471 U.S. 222, 227, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (citing with approval the use of statistical evidence to show discriminatory effect in equal protection analysis); Int'l Bhd. of Teamsters, 431 U.S. 324 at 339, 97 S.Ct. 1843 (observing that, in jury selection context, statistical analyses play a valuable role "in cases in which the existence of discrimination is a disputed issue"); cf. Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555 ("Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action ...."). Finally, as several courts have noted, requiring the identification of specific, similarly situated individuals is sometimes impractical in selective law enforcement cases. See, e.g., Chavez, 251 F.3d at 637-40; Bradley v. United States, 299 F.3d 197, 206 & n. 11 (3d Cir.2002). That is, "[b]ecause law enforcement agencies do not make or keep records on individuals they do not stop, and certainly not on `similarly situated' individuals they do not stop, imposing such a requirement on ... any defendant who challenges a traffic stop as selective enforcement, effectively denies them any ability to discover or prove such a claim." Duque-Nava, 315 F.Supp.2d at 1155.
In addition to demonstrating discriminatory effect, a plaintiff must also demonstrate discriminatory purpose. This requires more than proof that an adverse effect was merely "foreseeable." Feeney, 442 U.S. at 278, 99 S.Ct. 2282. Establishing discriminatory purpose instead requires a sufficient showing that "the decisionmaker... selected or reaffirmed a particular course of action at least in part because of, not in spite of, its adverse effects on an identifiable group." Sylvia Dev. Corp., 48 F.3d at 819 n. 2 (quoting Feeney, 442 U.S. at 279, 99 S.Ct. 2282) (internal quotation marks omitted). In other words, a plaintiff must show that racial discrimination was a "motivating factor" in the governing body's decision. Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555; see also Talbert v. City of Richmond, 648 F.2d 925, 929 (4th Cir.1981). This "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. The Fourth Circuit has highlighted several
Id.; see also Arlington Heights, 429 U.S. at 266-68, 97 S.Ct. 555. This list is by no means exhaustive. See Arlington Heights, 429 U.S. at 268, 97 S.Ct. 555 (identifying, "without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed"); Talbert, 648 F.2d at 929. "In the end, the plaintiff has the burden of establishing that a classification introduced through administrative action was `clear and intentional.'" Sylvia Dev. Corp., 48 F.3d at 819 (quoting Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944)).
The Government's evidence of a facially neutral classification broadly covers six areas of ACSO's law enforcement practices: traffic stops; checkpoint placement and stops; post-stop outcomes; searches after stops; the 287(g) program; and internal procedures. While the court will address each area in turn, it also considers all of them collectively in the context of the entire evidentiary record for purposes of the constitutional inquiry. In sum, given the totality of circumstances adduced from all the trial evidence, the Government fails to demonstrate a pattern or practice of facially neutral but discriminatory classifications.
In its complaint and at trial, the Government contended that ACSO targeted Hispanics for traffic stops. The Government presented Dr. Lamberth's testimony, which has been excluded (and thus need not be addressed further), and evidence of three individual traffic stops performed by ACSO officers. However, none evinces a discriminatory intent or effect.
One traffic stop was Deputy Conklin's stop of a van (which unbeknownst to the deputy contained Hispanic passengers) for impeding traffic on Interstate 40. Deputy Conklin's investigation quickly revealed evidence of human trafficking (i.e., "multiple fast-food bags with trash in them" and bottles filled with urine), a criminal offense (N.C. Gen. Stat. § 14-43.11), which prompted the deputy to contact ICE, who in turn asked him to detain the van's occupants for fifty minutes to an hour until ICE agents arrived. (Doc. 150 at 94-95.) Nothing about this stop suggests a discriminatory intent on the part of Deputy Conklin. The Supreme Court has acknowledged that state law enforcement may legitimately cooperate with federal immigration officials, Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 2507-09, 183 L.Ed.2d 351 (2012), and no evidence was presented that the deputy delayed the van (for ICE's arrival) beyond that which was required for him to resolve the State criminal inquiry.
Another stop — the lane-changing driver testified to by Assistant U.S. Attorney Husser — fails to show a discriminatory purpose or effect. The stop was simply described as a "bad stop," and Husser was unclear whether the driver was even Hispanic. (Doc. 148 at 192-93, 198.) Importantly, Husser testified that no ACSO stop
Finally, the stop of Jose Luis Arzola, Jr., fails to demonstrate discriminatory purpose or effect. The Government provided no evidence indicating a lack of probable cause for the stop. Upon being stopped, Arzola was asked for his "papers," but it is unclear to what that term refers, as Arzola also originally failed to provide the officer his vehicle registration. (Doc. 147 at 185-86, 191-92.) Even assuming the officer meant immigration documents, that request does not appear to be unlawful in and of itself absent evidence that the request delayed the legitimate purpose of the traffic stop. See Arizona, 132 S.Ct. at 2509; Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005).
The Government's evidence of discriminatory profiling in ACSO's traffic stop practices thus fails to demonstrate a Fourteenth Amendment violation.
The next area of challenge involves ACSO's checkpoint operations. The Government charges that ACSO targeted Hispanic drivers by siting checkpoints in predominantly Hispanic neighborhoods and stopping Hispanics discriminatorily at checkpoints. In the absence of Dr. Lamberth's inadmissible testimony, the Government relies on four incidents occurring at ACSO checkpoints and Dr. Banks' finding that 36% of checkpoint stops involved Hispanics.
The first incident offered by the Government is the checkpoint interaction between Deputy Keller and Paula Crotts, during which the deputy (who knew Crotts personally) told her husband that she did not need to see his license, adding they were "there to get them some" and motioning toward a predominately Hispanic mobile home park. (Doc. 149 at 119.) Crotts said she assumed the word "some" alluded to "as many Hispanics" or "an Hispanic person" but admitted, "I don't know what [Deputy Keller] meant." (Id. at 120, 125.)
What Deputy Keller may have meant is at best murky, and Crotts' opinion, which came in without objection, is nevertheless speculative. It would support the Government's theory if she meant they were there to "get them some Hispanics." There is no evidence of the type of checkpoint being conducted, however. If it was an informational checkpoint, it would be entirely consistent for Deputy Keller to have waived off Mr. Crotts' effort to volunteer his license because the deputies would have been there to gather information to apprehend a specific suspect. And a comment in that regard could mean "some suspects" or "some criminals," or, as Crotts surmised, "an Hispanic person" in particular. (Id. at 120.) In fact, Crotts volunteered at trial that as a dispatcher for the County, "we have had a lot of calls at that mobile home park" such that she knew the address "by heart." (Id. at 117.) If it was a standard checkpoint, however, it does appear that Deputy Keller's failure to check Crotts' husband's license may have contravened ACSO's checkpoint policy (raising a potential Fourth Amendment concern), but that any departure was most likely based on the fact that she personally knew the Crottses. Under that scenario and even attributing the Government's gloss to Keller's statement, the probative value is weak because it is saddled with such vagueness.
Third, the Government points to Sheriff Johnson's direction to "arrest Hispanics" at a checkpoint on Highway 49 one-half mile from the Seamsters mobile home park, which is predominantly Hispanic. (Doc. 147 at 29-30, 47, 155.) As noted earlier, there are problems with the Government's characterization of the directive. Nevertheless, even assuming the Sheriff gave such a directive, the Government's own evidence reveals that the officers claiming they heard the order did not carry it out. Thus, there was never any discriminatory effect.
Fourth is Officer Lloyd's testimony that then-Chief Deputy McPherson had reported at a checkpoint that the Sheriff had said that any Hispanics driving without a driver's license or driving with a revoked license should be arrested. Upon follow-up with Sheriff Johnson, however, Deputy McPherson made clear that he "didn't mean [arrest] just Hispanics" but "Hispanics, whites, and blacks." (Id. at 158-59.) Again, there was no evidence that anyone carried out any allegedly improper order.
Finally, the Government points to testimony by Sheriff Johnson's expert witness, Dr. Banks, that from 2009 to 2012, 36.8% of ACSO's stops at checkpoints were of Hispanics. (Doc. 153 at 99-100, 170.) The Government seeks to compare this figure to unadjusted U.S. Census data reporting that Hispanics constituted only 11.6% of Alamance County's population in 2010 and 8.6% of the County's driving-age population. (Id. at 170-71.) The Government contends this shows discriminatory effect. (Doc. 155 at 55-56; Doc. 158 at 110-11.)
The Government's argument here — comparing Dr. Banks' figure to unadjusted Census data — contravenes its steadfast position throughout trial that unadjusted U.S. Census data is unreliable for use as a benchmark and leads to erroneous results. (Doc. 153 at 145-46, 157.) Indeed, in its closing argument, the Government contended that U.S. Census data provided an "unreliable" benchmark and thus was not "probative" evidence of driving patterns in Alamance County. (Doc. 155 at 58-59; see also id. at 59 ("[U]nadjusted census data is widely discredited as a benchmark in social scientific literature.").) Dr. Banks confirmed the Government's criticisms by agreeing that use of U.S. Census data as the benchmark for drivers is not supported by academic literature and would not provide reliable information. (Doc. 153 at 145-46.) Thus, the Government's argument offers little on the issue of discriminatory effect. See Chavez, 251 F.3d at 643-44 (observing that use of U.S. Census data as a benchmark "tell[s] ... very little about the numbers of Hispanics" on the roads).
Without an appropriate benchmark, the Government's reliance on Dr. Banks' finding that 36.8% of the stops at checkpoints in Alamance County were of Hispanics is unreliable proof of discrimination. (Doc. 153 at 99-100.) The Government argues that this figure demonstrates that ACSO sites checkpoints disproportionately where Hispanics drive and stops them disproportionately. (Doc. 158 at 110-11.) On this record, however, Dr. Banks' figure demonstrates neither.
As to alleged discriminatory checkpoint siting, it bears reminding what Dr. Banks' figure allegedly reflects. The figure does not reflect all persons ACSO questioned at a checkpoint, or even those who drove
Second, regarding alleged discriminatory checkpoint stopping, the question is whether Dr. Banks' figure is evidence that persons similarly situated to Hispanics were not detained (and thus not issued stop forms) based on ethnicity. This begs the question of what percentage of Hispanics engage in conduct that prompted the detainment and issuance of a stop form. ACSO officers can detain a driver only after they determine there is reasonable suspicion to believe that the driver or vehicle passenger has violated the law. (See Gov't Trial Ex. 113 at 2.) Thus, to prove discriminatory decision-making in checkpoint detainment, the Government should have provided evidence allowing for a comparison of violating and non-violating Hispanics to violating and non-violating non-Hispanics who passed through the checkpoints. Dr. Banks' figure itself says nothing about why any person was detained.
It is possible, of course, that ACSO was stopping Hispanics discriminatorily. But it is at least equally possible that ACSO had reasonable suspicion or probable cause to detain proportionately more Hispanics than non-Hispanics without regard to ethnicity. Cf. Armstrong, 517 U.S. at 469-70, 116 S.Ct. 1480 (rejecting court of appeals' presumption that people of all races commit all types of crimes at equal rates). If true, drivers' ethnicity may merely correlate with chances of being detained without actually being a cause of detainment. It is unlikely anyone knows who in fact passed through a checkpoint without causing the production of a stop form, and the court recognizes that such information is not reasonably available to the Government. To show that ACSO discriminatorily detained Hispanics at checkpoints, however, the Government could have, for example, created a legitimate benchmark measuring the drivers as if passing through a checkpoint, categorizing and distinguishing them based on ethnicity and whether they were in fact violating the law. But the Government's benchmark study by Dr. Lamberth was fatally flawed. In the absence of some further proof, the court is unable to determine whether ACSO discriminately detained Hispanics more frequently than similarly situated non-Hispanics. Therefore, the Government's attempted use of Dr. Banks' figure — even considered against the entire record — is unpersuasive as evidence of discriminatory checkpoint stopping.
The Government next contends that ACSO's post-stop decision-making evidences Fourteenth Amendment violations. Here, the Government relies principally on Dr. MacDonald's testimony, as well as on testimony that Sheriff Johnson ordered deputies to arrest Hispanics and the balance of the record. The court has already
Dr. MacDonald examined the outcomes from ACSO traffic stops and opined that, when he controlled for the reason for the traffic stop (by way of regression analysis), Hispanics had higher arrest and citation rates but lower rates of written warnings, verbal warnings, or non-enforcement action. The Government argues that such "disparities" in post-stop outcomes between Hispanics and non-Hispanics proves discriminatory effect. (Doc. 158 at 90-94.) Whatever the superficial appeal of this argument, it fails under closer examination because the underlying analysis is too abstract and does not properly compare Hispanics to similarly situated non-Hispanics for what it claimed to measure. That is, the Government's post-stop outcome analysis fails to demonstrate a Fourteenth Amendment violation because it does not show that Hispanics were treated more harshly than non-Hispanics for similar offenses. See Armstrong, 517 U.S. at 465, 116 S.Ct. 1480 ("The requirements for a selective-prosecution claim draw on `ordinary equal protection standards.'"); United States v. Timms, 664 F.3d 436, 447 (4th Cir.2012) (denying a Fourteenth Amendment claim because alleged dissimilar treatment was not between similarly situated persons); Williams v. Hansen, 326 F.3d 569, 576 (4th Cir.2003) (same).
"[I]n determining whether persons are similarly situated for equal protection purposes, a court must examine all relevant factors." United States v. Olvis, 97 F.3d 739, 744 (4th Cir.1996); see also Ah Sin v. Wittman, 198 U.S. 500, 507-08, 25 S.Ct. 756, 49 L.Ed. 1142 (1905) ("Plaintiff in error seeks to set aside a criminal law of the state ... [on the ground] that it was made [unconstitutional] by the manner of its administration. This is a matter of proof; and no fact should be omitted to make it out completely, when the power of a Federal court is invoked to interfere with the course of criminal justice of a state." (emphasis added)). In this case, the Government claims to measure differences in stop outcome between Hispanics and non-Hispanics. But its evidence overlooks not just a relevant factor in ACSO's post-stop outcome decision-making, but the relevant factor — the basis for ACSO's decisions to arrest, cite, warn or take no action at all, which are the very actions the Government contends constitute the discriminatory policing. See Attorney Gen. of U.S. v. Irish People, Inc., 684 F.2d 928, 946 (D.C.Cir.1982) ("Discrimination cannot exist in a vacuum; it can be found only in the unequal treatment of people in similar circumstances.").
Most fundamentally, Dr. MacDonald's analysis requires the court to assume two major propositions: (1) similarity in generic stop reason means similarity in the severity of the conduct resulting in the stop; and (2) the stop reason (which Dr. MacDonald does not purport to measure) equates causally with the reason for the stop outcome (which he claims to measure). The trial evidence offers no proof of either of those assumptions, and Dr. MacDonald himself never attempted to say so at trial. Indeed, for several obvious reasons, these assumptions cannot be made. Some simple examples illustrate why.
First, "controlling for" one of the listed stop reasons noted on an ACSO stop form fails to account for the stop conduct — that is, the nature and degree of severity of the conduct resulting in the stop. Differences in the severity of stop conduct may likely explain differences in how the suspect is treated. For example, a common stop reason is "speed limit violation." (Gov't Trial Ex. 59.) However, a driver clocked at 70 m.p.h. in a 65 m.p.h. zone is much more likely to be warned, cited, or receive no
Second, suppose two drivers, one non-Hispanic Caucasian and one Hispanic, are each stopped for speeding 10 m.p.h. over the speed limit. So far, (assuming all things else being equal, which they rarely are) the drivers are similarly situated based on the stop reason. Yet in conversing with the Caucasian driver, the officer smells alcohol and determines probable cause for driving while impaired.
The Government's evidence as to outcomes other than arrests and citations — written warnings, verbal warnings, and no action — fares no better when "controlled for" stop reason. While one might argue that the presence or absence of a warning might be more closely related to stop reason (although the Government provided no evidence this is so), the differences between Hispanics and non-Hispanics as to written warnings, verbal warnings, and no action could just as easily be driven by whether or not they were arrested or cited for similar conduct. That is, a decision to arrest or cite is likely made in lieu of issuing a warning. This is demonstrated by the fact that, if one were to look only at
It is therefore unknown just how often (1) similarity in generic stop reason means sufficient similarity in the severity of the conduct resulting in the stop and (2) the stop reason is causally related to the basis for the stop outcome. This is particularly problematic in light of Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), which allows (nondiscriminatory) pretextual traffic stops. Without controlling for these obvious, non-discriminatory reasons for post-stop outcomes, Dr. MacDonald's statistical evidence does not prove dissimilar treatment between Hispanics and similarly situated non-Hispanics as to stop outcome. See Armstrong, 517 U.S. at 465, 116 S.Ct. 1480; Timms, 664 F.3d at 447; Attorney Gen. of U.S., 684 F.2d at 946.
The Government must do more than it did here, citing superficial statistical disparities to show discriminatory effect. As the Seventh Circuit cautioned, "Of course, parties may not prove discrimination merely by providing the court with statistical analyses. The statistics proffered must address the crucial question of whether one class is being treated differently from another class that is otherwise similarly situated." Chavez, 251 F.3d at 638; see also Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.2007) ("[The similarly situated] requirement demands more than lip service.... It is inadequate merely to point to [disparities] in a vacuum and leave it to the [defendant] to disprove conclusory allegations that [persons] are similarly situated."); Olvis, 97 F.3d at 744 ("The goal of identifying a similarly situated class of law breakers is to isolate the factor allegedly subject to impermissible discrimination." (quoting United States v. Aguilar, 883 F.2d 662, 706 (9th Cir.1989))); Moore v. City of Charlotte, N.C., 754 F.2d 1100, 1110 (4th Cir.1985) ("[A] conclusion that individuals have received discriminatory disparate treatment may be supported only where the notion of comparability is informed by sound, articulated principles...."). By only citing differences in post-stop outcomes without also showing that Hispanics were treated dissimilarly from those similarly situated to them, the Government thus fails to demonstrate discriminatory effect under the Fourteenth Amendment. See Ah Sin, 198 U.S. at 507-08, 25 S.Ct. 756 (rejecting plaintiff's claim that ordinance was enforced "solely and exclusively against persons of the Chinese race" because it did not allege "that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese, as to whom it was not enforced"); United States v. Bass, 536 U.S. 862, 863-64, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002) ("[R]aw statistics regarding overall charges say nothing about charges brought against similarly situated defendants." (emphasis added)); Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 492 (7th Cir.2007) ("Statistical evidence is only helpful when the plaintiff faithfully compares one apple to another without being clouded by thoughts of Apple Pie ala Mode or Apple iPods."); Olvis, 97 F.3d at 745 ("Without an appropriate basis for comparison, raw data about the percentage of black crack cocaine defendants proves nothing." (emphasis added)); Cooper v. S. Co., 260 F.Supp.2d 1305, 1317 (N.D.Ga. 2003) ("While Plaintiff's expert reports an over-all statistical disparity between black and white employees in compensation, Plaintiff's evidence generally fails to compare similarly situated individuals, significantly diminishing the probative value of any disparity."), aff'd, 390 F.3d 695 (11th
The court reaches this conclusion with the appreciation that the type of information necessary to determine whether persons are similarly situated is simply unavailable or practically difficult to obtain in some instances. See, e.g., Chavez, 251 F.3d at 639-40 (noting that, "[i]n a civil racial profiling case, however, the similarly situated requirement might be impossible to prove"). But see Armstrong, 517 U.S. at 466, 116 S.Ct. 1480 ("The similarly situated requirement does not make a selective-prosecution claim impossible to prove."). While the Government never made this argument, it is plain that this case is not one of them.
For one, there is evidence that Dr. MacDonald could have controlled for the differences in severity of driver stop conduct, but did not. While not documented on ACSO's stop forms and therefore not accounted for in that data, differences in severity of stop conduct are reflected in ACSO's citation data, at least as to speed. (See Gov't Trial Ex. 71 (observing on citation form that driver was going approximately 45 mph in a 35 mph speed zone).) The Government made no effort to control for those differences here. This failure is particularly important where the Government attempts to distinguish between gradations of outcome without considering gradations of conduct that are likely causally associated with outcome.
The Government also had access to ACSO's arrest and citation forms. Dr. MacDonald could therefore have matched ACSO's citation and arrests forms, which contain the reasons for citations and arrest, with ACSO's stop forms to account for differences between stop reason and the basis for the post-stop outcome.
Thus, by ignoring this evidence, Dr. MacDonald's analysis fails to preclude other equally plausible, non-discriminatory reasons for the inference the Government seeks to draw from his post-stop outcome figures. The thrust of the Government's claim is that ACSO's leadership instructs officers to arrest (rather than cite) Hispanics and bring them to jail (where they would be checked for immigration status in the 287(g) program and detained for deportation). (See Doc. 158 at 1-3, 10-14.) Consequently, if the theory held true, one might logically expect to find not only higher rates of arrest for Hispanics but
The Government contends that its showing is sufficient to shift the burden to Sheriff Johnson to demonstrate that the disparities were caused by factors other than ethnicity. (See, e.g., Doc. 158 at 97-104.) For example, at trial and in its post-trial filing, the Government repeatedly attacked Sheriff Johnson's attempts to show that Hispanics and non-Hispanics are not similarly situated.
In sum, Dr. MacDonald's post-stop out-come study fails to show discriminatory effect.
The Government also presented a second statistical analysis by Dr. MacDonald assessing searches performed by ACSO officers as evidence of discriminatory effect. Dr. MacDonald's search analysis made three findings: (1) Hispanics were searched more frequently than non-Hispanics; (2) at checkpoints, searches of stopped Hispanics produced less drug and overall contraband (his checkpoint "hit rate"); and (3) searches of Hispanics yielded less drug contraband than searches of non-Hispanics (his overall "hit rate"). In sum, Dr. MacDonald opined that his analysis "suggest[s] that there is a different standard, a lower threshold of suspicion or probable cause [being applied] in searching Latinos compared to non-Latinos." (Doc. 149 at 48; see also id. at 42, 45.) The Government argues that, because Dr. MacDonald's analysis "suggest[s]" differences
An initial weakness with all three of Dr. MacDonald's search findings is that, although in possession of ACSO's search data, the Government neither alleged nor put on evidence of a single instance in which an ACSO officer failed to meet the requisite legal standard necessary to perform a search of any Hispanic. Such evidence would have suggested the application of a different search standard for Hispanics, and its omission stands in contrast to other cases identifying discriminatory policing. See, e.g., Floyd, 959 F.Supp.2d at 627-28, 636-37, 640-42, 652-55 (finding multiple instances of unconstitutional searches). Although the Government was certainly not required to cite such evidence to demonstrate discriminatory effect, its lack of this evidence burdens its suggested inference. See Int'l Bhd. of Teamsters, 431 U.S. at 339, 97 S.Ct. 1843 (observing that anecdotal evidence serves to bring "the cold numbers convincingly to life"); EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir.2000) ("[I]n a pattern and practice case, the plaintiff must prove, normally through a combination of statistics and anecdotes, that discrimination is the [entity's] `standard operating procedure.'" (quoting Int'l Bhd. of Teamsters, 431 U.S. at 335-36, 97 S.Ct. 1843)); cf. Brown v. Nucor Corp., 785 F.3d 895, 914 (4th Cir.2015) (noting that "statistical and anecdotal evidence, especially when combined, thus provide precisely the `glue' of commonality" necessary in the class certification context).
Second, according to the Government, these three findings "suggest" that ACSO uses a different standard when searching stopped Hispanics. A suggestion of different search standards, however, is insufficient to meet the Government's burden of proof. Sakaria v. Trans World Airlines, 8 F.3d 164, 172-73 (4th Cir.1993) ("In a long line of decisions in this circuit, we have emphasized that proof of causation must be such as to suggest `probability' rather than mere `possibility,' precisely to guard against raw speculation by the fact-finder." (citing cases)); see also Mckoy v. Charlotte-Mecklenburg Sch., No. 3:10CV494, 2011 WL 1869958, at *6 (W.D.N.C. May 16, 2011) ("The case law is clear in the Fourth Circuit that speculation and conjecture raise a mere possibility of discrimination rather than the reasonable probability which is necessary to support an inference of discrimination.").
Third, all three of Dr. MacDonald's search findings suffer from omitted variable bias — the failure to control for an important causal factor. (Doc. 153 at 132-33.) The Government attempts to use Dr. MacDonald's analysis to support the inference that ACSO applies a different search standard to Hispanics. In reaching these findings, however, Dr. MacDonald did not control for a critical variable — the type of search — that may easily explain search differences. This omission seriously undermines the probative value of those findings. See Reed Const. Data Inc. v. McGraw-Hill Cos., Inc., 49 F.Supp.3d 385, 403-04 (S.D.N.Y.2014) ("Omitted-variable problems — as the name suggests — arise when important control variables are left out of the model."). Without controlling for search type, the Government's attempt to demonstrate that ACSO discriminatorily searches Hispanics fails to show whether ACSO's search standards — or rather the type of search — is driving Dr. MacDonald's results. See People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 111 F.3d 528, 537-38 (7th Cir.1997) ("[A] statistical study that fails to correct for salient explanatory variables, or even to make the most elementary comparisons, has no value as causal explanation.").
Moreover, while Dr. MacDonald controlled for searches incident to arrest as to overall drug contraband, his findings that (1) Hispanics were searched at a higher percentage than non-Hispanics and (2) searches of stopped Hispanics at checkpoints produced less drug and overall contraband both fail to do so. Searches conducted incident to (i.e., after) arrest are non-discretionary for ACSO officers. (Doc. 149 at 63-64; Doc. 154 at 21-22); see also United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ("A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification."). If an ACSO officer arrests an individual, he must search the individual for contraband and weapons under ACSO policy. Dr. MacDonald's overall search percentages and checkpoint search findings nevertheless included those uncontrolled-for, non-discretionary searches. Including those non-discretionary searches severely undermines the probative value of those two findings.
The Government's proposed inference is further undermined by the testimony of Officer Dockery. Officer Dockery testified that, once searches incident to arrest are removed from the calculus, little disparity existed between the percentage of Hispanics and non-Hispanics searched. (Doc. 153 at 53-58.) In other words, once the analysis focuses only on searches where deputies have discretion to search, the purported blanket disparity between Hispanics and non-Hispanics that Dr. MacDonald urges becomes much more muddled and complicated, with the disparities now running both ways depending on the stop reason.
Officer Dockery's testimony that ACSO searched Hispanics and non-Hispanics in approximately equal percentages, moreover, suggests that Dr. MacDonald's search findings are an even more attenuated attempt to show discriminatory effect than his post-stop outcome study. For example, Officer Dockery testified that 11.42% of stopped Hispanics were searched for investigatory reasons, as compared to 16.46% of stopped non-Hispanics searched for the same reason. (Id. at 55.) And, Officer Dockery's testimony regarding searches at checkpoints is directly at odds with Dr. MacDonald's checkpoint hit-rate findings. Officer Dockery found that, after removing searches incident to arrest, Hispanics were searched less often than non-Hispanics, and by a factor of more than 4 to 1 (5.18% of stopped Hispanics versus 22.27% of stopped non-Hispanics). (Id. at 54.) The Government has thus not persuasively shown that ACSO conducts discretionary searches of Hispanics and non-Hispanics in different percentages, yet it seeks to argue that ACSO uses different search standards based on ethnicity.
The Government's suggested inference thus requires the court to make a significant, unsupported assumption. That is, even assuming that the type of search had been controlled for, the Government asks the court to accept the subtle proposition that ACSO discretionarily searches Hispanics and non-Hispanics in apparently equal proportions but actually applies different search standards to the two groups, such that ACSO should really search Hispanics relatively less frequently than non-Hispanics. Yet, the Government provided no reason why ACSO should be searching Hispanics less often than non-Hispanics. And again, while not required to do so to demonstrate discriminatory effect, the Government produced no instance in which
For all these reasons, the Government has not carried its burden of proof that ACSO engages in discriminatory law enforcement in post-stop searches.
The evidence presented at trial also emphasized the role of ACSO's 287(g) MOA with ICE. The Government emphasized three specific aspects of the 287(g) program as evidence of unlawful discrimination of Hispanics.
As an initial matter, it is not clear whether a case or controversy remains as to this claim. The 287(g) program seems to have been a driving force for the Government's case, yet all agree that ACSO's 287(g) authority was revoked in 2012. Therefore, there is no realistic probability that ACSO would discriminate unlawfully in any manner involving any 287(g) authority. See Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (holding that "threatened injury must be certainly impending to constitute injury in fact" and that "allegations of possible future injury" are not sufficient, (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)) (emphasis, internal quotation marks, and brackets omitted)); Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (holding that plaintiff must show "realistic danger of sustaining direct injury as a result of [a] statute's operation or enforcement"). ACSO raised this argument pre-trial (Doc. 87 at 18 (citing Doc. 11 at 7-8)), but the court declined to dismiss that part of the Government's claim on the grounds that ACSO's involvement in 287(g) was nevertheless admissible at trial as to ACSO's discriminatory intent and conduct. United States v. Johnson, 28 F.Supp.3d 499, 506-07 (M.D.N.C.2014). With this in mind, the court turns to the specific allegations and proof.
First, the 287(g) program's TFO position and investigations were cited as discriminatory. The impetus for the TFO position itself, however, came from ICE, not ACSO. ICE also told Sheriff Johnson that his deputies could serve as TFOs under the MOA. Until an ICE audit, neither ACSO nor ICE officials questioned ACSO's authority to retain a TFO position under the MOA. One former ICE agent believed "it was purely an ICE issue as far as ICE," adding, "Nobody did this on purpose. ICE was giving conflicting information; and once it was discovered in the management audit, as it was supposed to, it was fixed." (Doc. 152 at 166.) The TFO position was not created for a discriminatory purpose.
The Government also argues that several investigations carried out by the TFO provide evidence of Fourteenth Amendment violations. None of those investigations, however, demonstrates an intent to discriminate on the part of ACSO. Many were instigated by or organized outside of ACSO. For example, ICE and the DEA organized and coordinated the gang roundups in the County. (Doc. 147 at 73, 75; Doc. 149 at 174; Doc. 151 at 139-40; see also Doc. 152 at 102-03.) There is no persuasive indication that the roundups targeted anyone based on ethnicity. Cf. Melendres, 989 F.Supp.2d at 895-905 (enjoining policy using ethnicity as factor for
The second 287(g) practice noted at trial were those investigations connected to background checks for gun permits. ACSO's processing of gun permit applications requires review by an ACSO clerk, ACSO captains, and then approval by an ACSO major. (Id. at 38-39.) While the 287(g) program was in place, Majors Brown and Holland referred some unknown number of names to Lieutenant Denham for criminal history checks to fulfill ACSO's legal responsibility for issuing gun permits. See N.C. Gen.Stat. § 14-404. The Government, however, did not call Major Holland and, when it called Major Brown as a witness, failed to ask a single question about the gun permit background checks. Moreover, while the Government points to evidence that all names submitted for background checks through 287(g)'s database sounded Hispanic, there was no evidence as to what ACSO did to investigate gun applicants and whether ACSO failed to satisfy itself as to the legal status of only those applicants it referred to ICE — which would have explained the referrals. Finally, and perhaps most importantly, neither party addresses what, if any, adverse effect these additional background checks had on gun permit applicants. The Government produced no witness testifying to effect, such as the delay in the processing or a denial of a gun permit application. The court accepts this, therefore, as some evidence of discriminatory intent, but without more, it is uncertain as to its import and thus weak proof of a Fourteenth Amendment violation.
The third aspect of the 287(g) program the Government charges as discriminatory is ACSO's booking of individuals into the ACDC. The Government's allegation and contention was that ACSO targeted Hispanics for arrest so that they could run Hispanic arrestees through the 287(g) program. The evidence at trial, however, did not bear this contention out. For one, while the Government claims that Sheriff Johnson changed his arrest policy after implementation of the 287(g) program to effectuate this effort, the arrest policy changed well before the 287(g) program began. (Doc. 147 at 33; Doc. 154 at 58-59.) Moreover, Dr. MacDonald's evidence indicates that, following 87.9% of stops, Hispanics were not arrested, undercutting the Government's argument that ACSO targeted Hispanics for arrest to run them through the 287(g) program.
The court does not find the evidence related to ACSO's 287(g) program to establish a pattern or practice of Fourteenth Amendment violations.
The Government also highlights evidence connected to ACSO's culture, supervision, and discipline. That evidence appears to be directed toward showing ACSO's discriminatory intent, and the Government makes no argument that a lack of discipline, deficient supervision, or the use of racially- or ethnically-charged language demonstrates a discriminatory effect.
At least as to discriminatory language, courts have held that such language, while undoubtedly inexcusable, does not constitute a Fourteenth Amendment violation. See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.2000) ("The use of racially derogatory language, while unprofessional and deplorable, does not violate the Constitution."); Williams v. Bramer, 180 F.3d 699, 706 (5th Cir.) ("We hold today that an officer's use of a racial epithet, without harassment or some other conduct that deprives the victim of established rights, does not amount to an equal protection violation."), decision clarified on reh'g, 186 F.3d 633 (5th Cir.1999) (per curiam). The evidence in this case thus falls short of demonstrating a constitutional problem, as none of that evidence was tied to any law enforcement action violating a constitutional right.
While this evidence falls short of showing a Fourteenth Amendment violation, the court would nevertheless be remiss if it failed to address the troubling nature of some of the evidence at trial. First, the language, epithets, and slurs used by some ACSO officers, particularly in the ACDC, are abhorrent and, if not ended already, should cease immediately. While most of that language was used outside the presence of the individuals to whom the language referred, that does not excuse the unprofessional and wholly inappropriate nature of that language. The court recognizes that the evidence showed that only a select number of officers used that language, and it was confined largely to the ACDC. Nevertheless, there is simply no place for the use of that type of language by government officials tasked with lawfully and justly enforcing the law.
That admonishment goes for the emailed items as well. For a department that likely had tens of thousands of emails or more, the handful of those presented were not overwhelming. However, the jokes and video game sent by ACSO officers are reprehensible, and a sheriff's office is no place for such behavior. The court notes ACSO's recent efforts to curb the abuse of its email system. If not prevented already, however, the sending of racially- and ethnically-insensitive jokes and games must stop.
In the context of this case, the court can only address conduct that rises to the level of a pattern or practice of an Equal Protection violation. See Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ("It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will immediately suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and Constitution."). As the court finds that the Government has failed to demonstrate such a claim, the court's power and duty ends.
The Government's second claim under 42 U.S.C. § 14141 alleges a pattern or practice of discriminatory law enforcement on the part of ACSO against Hispanics in violation of the Fourth Amendment. For reasons explained in its summary judgment Order, the court ruled that the Government's complaint alleged a Fourth Amendment claim only insofar as it related to Hispanics and failed to give Sheriff Johnson fair notice of allegations that ACSO used checkpoints generally for other unlawful purposes against all persons in the County. (See Doc. 1 ¶¶ 5, 25, 30, 41-46; Doc. 118 at 31-36 ("[A]llowing the Government to proceed as to claims of generalized unlawful checkpoints untethered to the abiding central claim of this case would unduly prejudice Johnson.").) The court therefore concluded that "the complaint raises a proper Fourth Amendment challenge to the extent it contends that the ACSO, as part of its alleged targeting of Latinos, has conducted checkpoints with a programmatic purpose that violates the Fourth Amendment." (Doc. 118 at 35.)
The Government contends that "ACSO conducts checkpoints for general law enforcement purposes in violation of the Fourth Amendment, and that there is a nexus between these checkpoints and ACSO's targeting of Latinos." (Doc. 158 at 140.) The question before this court, therefore, is whether — through its checkpoint operations — ACSO has engaged in a pattern or practice of Fourth Amendment violations involving Hispanics. To answer that question, this court looks to the Supreme Court's decision in City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), and its progeny for guidance.
The Fourth Amendment protects "against unreasonable searches and seizures." U.S. Const. amend. IV. This protection "generally bars officials from undertaking a search or seizure absent individualized suspicion." Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). While "some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure," the Fourth Amendment does not impose an "irreducible requirement of such suspicion." United States v. Martinez-Fuerte, 428 U.S. 543, 560-61, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Rather, in "certain limited circumstances," the absence of individualized suspicion may not doom a search or seizure. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 668, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); see also Martinez-Fuerte, 428 U.S. at 560-61, 96 S.Ct. 3074.
When directing courts to ascertain the primary purpose behind checkpoints, the Supreme Court "recognize[d] the challenges inherent in a purpose inquiry." Edmond, 531 U.S. at 46-47, 121 S.Ct. 447. Because the relevant law enforcement agency in Edmond stipulated to the primary purpose behind its checkpoint program, however, the Court provided only limited direction on how lower courts should undertake the primary-purpose analysis for law enforcement checkpoints. See id. (noting confidence in courts' ability to make the primary-purpose determination and stating "courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful"). The Court observed that the primary-purpose inquiry requires examination of "the available evidence," but that such an examination was "not an invitation to probe the minds of individual officers acting at the scene." Id. at 46, 48, 121 S.Ct. 447; see also United States v. Gonsalves, 435 F.3d 64, 69 (1st Cir.2006) (upholding administrative search under Edmond's primary-purpose test, regardless of government official's subjective intent). Ultimately, the Court held that, because the stipulated primary purpose of the relevant checkpoints was "the general interest in crime control" (i.e., drug interdiction), "the checkpoints violate[d] the Fourth Amendment." Edmond, 531 U.S. at 48, 121 S.Ct. 447.
Cases following Edmond have since further elucidated the contours of the primary-purpose test. Specifically, the Supreme Court has held that the primary-purpose inquiry focuses on the "immediate objective" of a program, not the program's ultimate goal. Ferguson v. City of Charleston, 532 U.S. 67, 83-84, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). In Ferguson, the Supreme Court applied Edmond to determine the primary purpose of a state hospital's program of drug testing pregnant women. Id. at 70-71, 121 S.Ct. 1281. "In looking to the programmatic purpose," the Court explained, "we consider all the available evidence in order to determine the relevant primary purpose." Id. at 81, 121 S.Ct. 1281 (citing Edmond, 531 U.S. at 45-47, 121 S.Ct. 447). The Ferguson Court thus examined "the document codifying the policy" as well as "the development and application of the policy" to determine its primary purpose. Id. at 81-86, 121 S.Ct. 1281. Importantly, the Court distinguished between the "ultimate" and "immediate" purposes of a program. Id. at 83-84, 121 S.Ct. 1281. For the Edmond inquiry, a program's "immediate objective," not its ultimate goal, is the pertinent measure of a program's primary purpose. Id. ("While the ultimate goal of the program may well have been to
Here, the Government cites no case supporting its contention that a checkpoint with the programmatic purpose of targeting members of a particular racial or ethnic group may constitute a Fourth Amendment violation as opposed to a Fourteenth Amendment violation. Nevertheless, assuming such a programmatic purpose could constitute a Fourth Amendment violation, the court concludes — based on its Findings of Fact — that the purpose of ACSO's checkpoint operations, primary or otherwise, was not to target Hispanics.
The testimony of multiple officers inside and outside ACSO demonstrates that ACSO routinely conducted its checkpoints with lawful primary purposes, mainly for checking motor vehicle violations. For one, ACSO's checkpoint policy describes the three types of permissible checkpoints. (Gov't Trial Ex. 113 at 2-4 (listing standard (motor vehicle), informational, and special operations as available checkpoint options)). The "standard" checkpoint is set up for the purpose of determining "compliance with motor vehicle laws." (Id. at 2.) As the policy states, "Examples for which this [standard] ... checking station may be used include verification of drivers' licenses, vehicle registration checks, insurance checks, seat belt compliance checks, and driving while impaired checks." (Id.) "Informational" checkpoints function to seek information regarding a crime, and "special operations" checkpoints focus on the immediate apprehension of a suspect. (Id. at 3.)
The evidence showed that ACSO occasionally conducted checkpoints seeking information; Sheriff Johnson described such checkpoints as attempts "to get information on" a crime. (Doc. 154 at 149-50.) Chief Deputy Britt also recalled an informational checkpoint occurring after a series of break-ins. (Id. at 24-25.) Other ACSO officers also confirmed they have on occasion conducted informational checkpoints. (See, e.g., Doc. 149 at 108-09; Doc. 150 at 84 (noting that informational checkpoints occurred but were "less common"); id. at 89-90.)
Little testimony was provided on special operations checkpoints, which focused on specific events, such as capturing someone "escaped from jail" or when "somebody was on the run in the community." (Doc. 154 at 105; see also id. at 150.) In fact, no ACSO officer stated that they had conducted such checkpoints.
The vast majority of ACSO's checkpoints operated as standard checkpoints with the primary purpose of checking motor vehicle violations. (Doc. 150 at 84.) Most officers testified to their performance of standard checkpoints. Lieutenant Hoover testified that that ACSO's checkpoints are "generally ... for your ... driver's license or registration or insurance." (Id. at 9.) He further stated, "The purpose of a checkpoint, [is] to check [the] validity of driver's license, registration, insurance." (Id. at 27-28; see also id. at 10 ("The checkpoint would be set up for driver's license, registrations, or insurance.").) Officer Anthony similarly testified that ACSO primarily conducted motor vehicle compliance checkpoints. (Doc. 148 at 22-23;
This overwhelming account of ACSO's checkpoint practices demonstrates that the primary purposes of ACSO's checkpoints were routinely lawful, with the vast majority of checkpoints ensuring compliance with North Carolina's motor vehicle laws, specifically checking for licenses, vehicle registrations, and proof of insurance.
Under existing Fourth Circuit case law, such checkpoints are constitutionally valid. See United States v. Brugal, 209 F.3d 353, 357 (4th Cir.2000); see also Edmond, 531 U.S. at 37-38, 121 S.Ct. 447 (recognizing that Supreme Court precedent at least "suggested" that checkpoints "with the purpose of verifying drivers' licenses and vehicle registrations would be permissible"); Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (indicating that "[q]uestioning of all oncoming traffic at roadblock-type stops" to check for valid driver's licenses would be legitimate under the Fourth Amendment); United States v. Bernacet, 724 F.3d 269, 273 (2d Cir.) (finding inspection for driver's license, vehicle registration, and insurance information at license checkpoint within bounds of the Fourth Amendment), cert. denied, ___ U.S. ___, 134 S.Ct. 806, 187 L.Ed.2d 610 (2013); United States v. Galindo-Gonzales, 142 F.3d 1217, 1221 (10th Cir.1998) (same); United States v. McFayden, 865 F.2d 1306, 1310-12 (D.C.Cir.1989) (same), abrogated in part by Davis, 270 F.3d at 981.
Similarly, checkpoints operated with the primary purpose of obtaining information about a crime are constitutionally valid. See Illinois v. Lidster, 540 U.S. 419, 423, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) ("The stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others."); United States v. Faulkner, 450 F.3d 466, 472-74 (9th Cir.2006) (upholding operation of an informational checkpoint). Similarly, and although no testimony was offered that ACSO conducted a special operations checkpoint, those checkpoints appear to be constitutional as well. See Edmond, 531 U.S. at 44, 121 S.Ct. 447 ("[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up... to catch a dangerous criminal who is likely to flee by way of a particular route."); United States v. Whitehead, 567 Fed.Appx. 758, 767 (11th Cir.), cert. denied, ___ U.S. ___, 135 S.Ct. 308, 190 L.Ed.2d 223 (2014).
The Government's evidence to support its contention that checkpoints were operated with the primary purpose of targeting Hispanics was very limited, and the little that exists is speculative at best. As evidence of a purpose to target or discriminate against Hispanics in ACSO's checkpoint operations, the Government cites Dr.
First, the checkpoint studies of Drs. Banks and MacDonald are unpersuasive to show a purpose to target Hispanics at ACSO checkpoints. For the reasons already noted, the Government's use of Dr. Banks' finding that 36.8% of ACSO's stops at checkpoints were of Hispanics is unreliable. Dr. MacDonald's study — finding that searches of stopped Hispanics at checkpoints produced less drugs and overall contraband — failed to show that ACSO applied different search standards based on race/ethnicity, in large part because it suffered from omitted variable bias. Those studies show no purpose to target Hispanics at ACSO checkpoints.
Second, the Government cites statements that ACSO officers conducted checkpoints near predominately Hispanic areas. ACSO undoubtedly set up some checkpoints near predominately Hispanic areas. (Doc. 147 at 213; Doc. 149 at 217.) The placement of a few of ACSO's 435 checkpoints over the years fails to demonstrate that those checkpoints were set up for the purpose, primary or otherwise, of targeting Hispanics. Moreover, Dr. Banks' permutation study indicated that little "evidence [existed] that checkpoints were being sited closer to Hispanic communities than would have occurred if they were done just at chance." (Doc. 153 at 94-95, 99.) The trial evidence demonstrated that ACSO administered checkpoints all over the County.
The first incident the Government cites similarly fails to evidence a purpose, primary or otherwise, of targeting Hispanics. The Government cites Corporal Nicholson's operation of a checkpoint near Rocky Top mobile home park — a park in which residents are predominantly Hispanic. As noted, however, the evidence at trial demonstrated that Corporal Nicholson conducted the checkpoint as a measure to show law enforcement presence. He did so in response to Sheriff Johnson's unspecified direction that came following the park owner's complaint about a specific Mexican gang then under ACSO investigation for criminal activity and thought to be operating in the owner's park.
Second, the Government cites the checkpoint interaction between Deputy Keller and Crotts. That interaction involved a checkpoint at which Deputy Keller (who knew Crotts) told Crotts' husband that she did not need to see his license because "they were there to get them some," gesturing in the direction of a mobile home park predominantly populated by Hispanics. As noted, the court finds Deputy Keller's statement and conduct vague and Crotts' assumption that it referred to Hispanics speculative. (See Doc. 149 at 120, 125.) Crotts admitted as much on cross-examination. (Id. at 125 ("I don't know what [Deputy Keller] meant.").) Moreover, even assuming that Deputy Keller's statement referred to Hispanics generally (as opposed to perhaps certain suspects, if an informational checkpoint, or other motor vehicle law violators, if a standard checkpoint), Deputy Keller's statement appears
In sum, based on the totality of the circumstances considering all the evidence adduced at trial, the Government lacks proof that the purposes of ACSO's checkpoint operations, primary or otherwise, were to target Hispanics, and it certainly fails to show a pattern or practice of the same. See Int'l Bhd. of Teamsters, 431 U.S. at 336 & n. 16, 97 S.Ct. 1843 (holding that a plaintiff must "prove more than the mere occurrence of isolated ... or sporadic discriminatory acts" but rather that the classifications were "standard operating procedure [-] the regular rather than the unusual practice"); cf. Monell, 436 U.S. at 690-91, 98 S.Ct. 2018 (requiring proof of "persistent and widespread discriminatory practices of state officials" to demonstrate a governmental "custom" of constitutional rights deprivations under § 1983).
The Government, however, further argues that ACSO conducts checkpoints for reasons other than the purposes provided. (See Doc. 158 at 140-46; see also Doc. 1 ¶ 30.) In light of the testimony by ACSO's officers, the Government's claim essentially boils down to a contention that ACSO conducted pretextual checkpoints for the purpose of targeting Hispanics.
Although the Supreme Court has never explicitly so held, it has certainly implied that pretextual checkpoints would contravene the Fourth Amendment. In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the Court suggested that checkpoints with a pretextual lawful purpose that are in fact for an unlawful purpose are constitutionally prohibited. Id. at 743-44, 103 S.Ct. 1535; see also Whren, 517 U.S. at 811-12, 116 S.Ct. 1769 ("[T]he exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes."); New York v. Burger, 482 U.S. 691, 716 n. 27, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987); Brugal, 209 F.3d at 357 (citing Brown). Prior to Edmond, which set out the primary-purpose test, several courts had held unconstitutional checkpoints that operated for pretextual lawful purposes but with actual unlawful purposes. See United States v. Huguenin, 154 F.3d 547, 558-59 (6th Cir. 1998); United States v. Morales-Zamora, 974 F.2d 149, 152-53 (10th Cir.1992); State v. DeBooy, 996 P.2d 546, 551 (Utah 2000). Since Edmond, lower federal courts have continued to intimate that checkpoints set up for pretextual purposes are unconstitutional under the Fourth Amendment. See United States v. Knight, 306 F.3d 534, 537 (8th Cir.2002) ("We observe, finally, that the Supreme Court has warned against administrative stops becoming pretexts for `crime control.'" (quoting Edmond, 531 U.S. at 40, 121 S.Ct. 447)); United States v. Gabriel, 405 F.Supp.2d 50, 61 (D.Me. 2005) ("There is no evidence the Border Patrol was using terrorism as a pretext to operate a checkpoint otherwise forbidden by Edmond."); see also State v. Hicks, 55 S.W.3d 515, 537-38 (Tenn.2001). Nevertheless, because — as noted earlier in this section — the evidence at trial does not support a finding of pretextual purposes targeting or discriminating against Hispanics as part of ACSO's checkpoint operations, this court need not decide whether pretextual checkpoints ultimately contravene the Fourth Amendment.
Left unclear by the Supreme Court is whether a checkpoint with an illegitimate "secondary purpose" violates the Fourth Amendment. Edmond left that question unanswered but in a footnote observed, "Because petitioners concede that the primary purpose of the Indianapolis checkpoints
Only a handful of lower courts have analyzed the issue of checkpoints with secondary purposes post-Edmond. Two circuit courts addressing the issue — the Fifth and D.C. Circuits — have concluded that Edmond tolerates checkpoints having a secondary, but invalid, purpose. See United States v. Moreno-Vargas, 315 F.3d 489, 491 (5th Cir.2002) ("We accordingly hold that Moreno's immigration stop at the Sarita checkpoint was valid because the checkpoint has as its primary programmatic purpose the enforcement of the immigration laws, regardless of whether or not it could also be said to have a secondary programmatic purpose of drug interdiction." (emphasis added)); Davis, 270 F.3d at 979-83 ("[Edmond] more than suggests that if the `primary purpose' had been for a purpose the Court had already endorsed — such as detecting drunk drivers, or checking licenses — the roadblock would be constitutional."); see also United States v. Gasca-Castillo, No. CR. 06-CR-0060-L, 2007 WL 173888, at *6 (S.D.Cal. Jan. 8, 2007); Dale v. State, 785 So.2d 1102, 1105 (Miss.Ct.App.2001). But see 5 Wayne R. LaFave, Search & Seizure § 10.8(a) (5th ed. 2012) ("Surely an illegal multi-purpose checkpoint cannot be made legal by the simple device of assigning `the primary purpose' to one objective instead of the other.").
Furthermore, two circuit courts have upheld other administrative programs with secondary purposes when applying Edmond. The Second Circuit upheld a police department's policy requiring a breathalyzer test for an officer causing injury or death by firing his or her gun, noting "the mere fact that crime control is one purpose — but not the primary purpose — of a program of searches does not bar the application of the special needs doctrine." See Lynch v. New York City, 589 F.3d 94, 102 (2d Cir.2009). The Second Circuit further observed, "[E]ven if crime control is one purpose of a program of searches, the program may nevertheless be reasonable under the special needs doctrine so long as crime control is not the program's primary purpose." Lynch, 589 F.3d at 102; see also Davis, 270 F.3d at 979-80. When analyzing the validity of a stop at a national park's information station, the Ninth Circuit held, "While one of the information station's purposes may have been to advance a general interest in crime control, it was not the primary purpose. Indeed, `the phrase general interest in crime control does not refer to every law enforcement objective.'" Faulkner, 450 F.3d at 471 (quoting Lidster, 540 U.S. at 424, 124 S.Ct. 885) (internal quotation marks omitted).
This reading of Edmond aligns with prior Supreme Court cases like Sitz and Martinez-Fuerte. See Lynch, 589 F.3d at 102 (stating that this interpretation of Edmond "derives naturally from prior case law"). In Sitz, the Court upheld the use of sobriety checkpoints with the primary purpose of "reducing the immediate hazard posed by the presence of drunk drivers on the highways." Edmond, 531 U.S. at 39, 121 S.Ct. 447. Analyzing Sitz, the Second Circuit observed "that aiding criminal prosecutions of drunk drivers was another purpose of the checkpoints. It was simply not the checkpoints' primary purpose."
The one wrinkle in this analysis is the Court's footnote in Edmond reserving the question of whether a State may establish a checkpoint program with a valid primary purpose of checking licenses but an invalid secondary purpose. See Edmond, 531 U.S. at 47 n. 2, 121 S.Ct. 447. That footnote, however, "seems divorced from the rest of the opinion." Davis, 270 F.3d at 979. The D.C. Circuit scrutinized Edmond's footnote in some depth, reasoning that the footnote did not ultimately indicate that checkpoints could not have invalid secondary purposes. Id. at 979-80. The Davis court explained in detail:
Id. (citation omitted) (quoting Edmond, 531 U.S. at 47 n. 2, 121 S.Ct. 447).
Based on this analysis, it appears that a checkpoint with an invalid secondary purpose is likely not rendered unconstitutional per se. Here, the Government's evidence fails to establish even a secondary purpose of targeting Hispanics by a preponderance of the evidence. In sum, the Government's § 14141 claim falls short of showing a pattern or practice of targeting or discriminating against Hispanics as part of ACSO's checkpoint operations.
Sheriff Johnson argues that the four-year statute of limitations of 28 U.S.C. § 1658(a)
What has been presented to the court are the Government's claims that Sheriff Johnson and ACSO violated federal law under § 14141 by engaging in a "pattern or practice" of discriminatory law enforcement against Hispanics in contravention of the Fourth and Fourteenth Amendments. After careful and thorough consideration, as detailed more extensively above, the court concludes that the Government has not met its burden of demonstrating that they have done so. With no evidence that any individual was unconstitutionally deprived of his or her rights under the Fourth or Fourteenth Amendments, the Government's case rested largely on vague, isolated statements attributed to Sheriff Johnson and on statistical analyses. Yet, not a single person testified that any ACSO employee carried out any alleged improper directive or otherwise violated any individual's constitutional rights — indeed, all witnesses, including those called by the Government, denied that they ever did or knew any ACSO officer who did. The Government's statistical analyses similarly failed to constitute reliable and persuasive proof of the claims under applicable legal standards, having failed to sufficiently compare ACSO's treatment of Hispanics to others who were similarly situated. In the context of the significant law enforcement challenges facing ACSO, the Government's evidence falls short.
While ACSO's law enforcement practices do not constitute an unlawful "pattern or practice" of constitutional deprivations in violation of federal law, the court's decision cannot be read to approve or condone all the conduct presented as evidence at trial. Indeed, some of it — for example, the use of ethnic slurs by a few officers largely in the County jail — demonstrated offensive and reprehensible activity that should not be tolerated in any civil society, much less in a law enforcement environment. Other evidence demonstrated potential internal weaknesses in ACSO, such as lack of a system to monitor selection of checkpoint locations, weakness in internal reporting and condemnation of conduct that violates ACSO's internal policy manual, and a lack of substantive review processes for stops and post-stop outcomes. The absence of a finding of a violation of federal law should not be construed as approval of the status quo, and such matters deserve immediate attention.
For the reasons set forth herein, therefore,
IT IS FURTHER ORDERED that any request for costs be filed within thirty (30) days, pursuant to the requirements of Federal Rule of Civil Procedure 54(d), Local Rule 54, and the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.
A Judgment in conformance with this Order will be entered simultaneously.
Id. at F357 (emphasis added). The Government's cited article thus bolsters the conclusion that Dr. MacDonald's failure to control for search incident to arrest undermines his study's probative value.
28 U.S.C. § 1658(a). The statute was enacted December 1, 1990, some four years before § 14141's enactment on September 13, 1994. Therefore, by the plain language of § 1658, it applies to claims under § 14141, unless "otherwise provided by law."
