Santos v. Frederick County Board of Commissioners et al
Filing
98
MEMORANDUM. Signed by Judge Benson Everett Legg on 2/7/2012. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROXANNA SANTOS
Plaintiff,
v.
FREDERICK COUNTY BOARD
OF COMMISSIONERS, et al.,
Defendants
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Civil No. L-09-2978
MEMORANDUM
This case concerns the allegedly unlawful detention and arrest of Plaintiff Roxana Santos
by two Frederick County Sheriff’s Deputies, Defendants Jeffrey Openshaw and Kevin Lynch
(―Deputies‖). Now pending is the Deputies’ Motion for Summary Judgment. Docket No. 84.
The issues have been comprehensively briefed, and on November 15, 2011, the Court heard oral
argument on the Motion. For the reasons stated herein, the Court will, by separate Order,
GRANT the Motion.
I.
BACKGROUND
Shortly after 10:00 a.m. on October 7, 2008, Roxana Santos was sitting on the curb in the
alleyway behind Common Market, a food co-op where she worked as a dishwasher. Santos was
eating a bit of bread while she waited for her 11:00 a.m. shift to begin.
At the same time, Frederick County Sheriff’s Deputies Jeffrey Openshaw and Kevin
Lynch were engaged in a routine patrol of the area. Their route took them through the parking
lot of the Evergreen Square shopping center, which houses Common Market and several other
businesses and restaurants. Openshaw and Lynch drove around to the rear of a large building
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containing Common Market and Gold’s Gym, where they encountered Santos sitting on the curb
next to a large storage container of the type transported by cargo ships. There are three separate
accounts of the circumstances surrounding the Deputies’ approach.
According to Openshaw and Lynch, when Santos observed them driving toward her in a
marked patrol car, she got up, quickly gathered her things, and ducked around the corner of the
storage container out of their view. Though the patrol car was approximately 150 feet away,
Deputy Lynch testified that he saw Santos regard them with a startled look before withdrawing
behind the container: ―Her eyes got large, like, oh, no, there’s the police.‖ Lynch Dep. 43:16–
21. The Deputies commented to one another that the behavior seemed odd, and they decided to
question Santos.
By contrast, Santos claims that she had just sat down when she noticed the patrol car
approaching, but thought nothing of it. She denies doing anything even arguably suspicious.
Santos states that as she remained seated, the car pulled up, Deputies Openshaw and Lynch got
out, and Openshaw began to ask questions.
The third account comes from Eric Lofhjelm, another Common Market employee.
Lofhjelm was standing on the building’s loading dock, which looked down the alley towards the
far side of the building from which the Deputies approached. Lofhjelm noticed the patrol car
come around the corner. When it passed out of his field of view, he stepped out onto a stairwell
from which he could see both the patrol car pulling up to the storage container and Santos sitting
on the curb. Lofhjelm observed the parties’ interaction for a short time before going inside,
though he was too far away to hear anything. During the time that he watched, Lofhjelm did not
see Santos get up or move.
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From this point on, the parties’ versions of the facts are largely congruent, except as
expressly noted. Accounts agree that the two Deputies circled around the storage container,
approaching Santos from opposite directions. They wore standard issue Sheriff’s uniforms and
had guns on their hips. Deputy Openshaw greeted Santos and asked if she was on break. Santos
said, yes. According to Openshaw, a language barrier was immediately apparent. He inquired if
Santos worked at Common Market, and again she said, yes. Openshaw then asked if Santos had
identification. Santos understood the question, but responded in Spanish that she had none.
Openshaw asked if she had a passport and Santos responded, this time in English, that she had a
passport but that she had left it at home.
Deputy Openshaw then asked Santos her name. He testified that when he could not
understand Santos’s attempt to spell it for him, he gave her his notepad with a request that she
write out her name and date of birth. According to Openshaw, Santos complied. Santos, by
contrast, does not remember either Deputy asking for any such information or giving her paper
and pencil.1 At no point did either Deputy question Santos on the subject of her immigration
status.
While Santos remained seated, Deputy Openshaw withdrew to confer with Deputy
Lynch. Though Santos could not understand what the officers were doing, Openshaw used his
radio to run a routine warrant check, providing the dispatcher with the name Roxanna Elizabeth
Orellana Santos, born [month] [day], 1980.2 At some point, Santos produced a Salvadoran ID
card from her purse. She offered it to the Deputies, one of whom walked over to retrieve it.
1
When asked what became of the piece of paper, Openshaw responded that he gave it to an ICE agent at the
police station.
2
The Court has redacted Santos’s date of birth to preserve her privacy.
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Openshaw testified that Santos offered the ID after she had written down her name and birthdate,
but he could not recall if this occurred before or after he called in the warrant check.
A short time later, the dispatch officer notified the Deputies that Santos was the subject of
an Immigrations and Customs Enforcement (―ICE‖) warrant for immediate deportation.
Openshaw testified that at this point Santos was not free to leave, but he did not immediately
place her under arrest. Instead, the Deputies requested verification of the warrant, meaning that
someone from the Sheriff’s Office would contact ICE to determine whether it was still active.3
While the warrant was being verified, Santos asked the Deputies if she could get up.
Openshaw said, no, and gestured that she should remain seated. Eventually, the dispatch officer
radioed back that the warrant was verified and active. Santos, deciding it was time for her to go
to work, attempted to stand up and leave. At this point the Deputies handcuffed her, placed in
the patrol car, and transported her to patrol headquarters.4
3
Deputy Openshaw testified that this was standard procedure:
At that point they need to verify the warrant, okay. In other words,
contact whatever agency . . . had the warrant. Our agency would contact that
agency to verify that the warrant was still active, because at times sometimes
there may be a warrant that has been served or has, for whatever reason, gone
inactive, for whatever reason, and they may not want it.
Or there would be instances from other states where a warrant—they
may not want to extradite. . . . Let’s say somebody’s from Oklahoma and they’re
up here and we pull them up here and run a check on them, they have a warrant,
it may be for like a child support, they’re not going to extradite the person. So
we just say, ―Hey, you got a warrant through Oklahoma for whatever reason,
you might want to get that taken care of, we’re not taking you in, they don’t
want you,‖ that type of thing.
Openshaw Dep. 71:8–72:5.
4
The amount of time taken up by these events is somewhat unclear. Santos claims that the initial
questioning session, after which she presented her ID card, lasted fully 15 minutes. An ―event chronology‖ offered
by the Defense shows that a report of suspicious activity was called in at 10:27 a.m., and that the information
relating to the warrant check was communicated to dispatch at 10:28 a.m. Openshaw testified that standard protocol
would have been to send the initial communication to dispatch before the Deputies left the car, but that he could not
remember specifically whether the standard protocol was followed on the day in question. The chronology shows
―pending confirmation of warrant‖ at 10:37 a.m., and arrival at Patrol Headquarters by 10:42 a.m. Lofhjelm
testified that the entire encounter, from the time of the Deputies’ arrival to the time they handcuffed Santos and
placed her in the patrol car, lasted somewhere between five and eight minutes.
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At headquarters, Santos was turned over to an ICE agent for questioning. After
temporary detention in the Frederick County Adult Detention Center and Baltimore Adult
Detention Center, ICE transferred Santos to the Dorchester County Jail in Cambridge, Maryland,
where she remained until her supervised release on November 13, 2008. Santos was not
deported, and the record does not reveal her current immigration status.
On November 10, 2009, Santos filed the instant suit, naming as defendants Deputies
Openshaw and Lynch, Frederick County Sheriff Charles Jenkins, the Frederick County Board of
Commissioners, and several other individuals from ICE and the Department of Homeland
Security. Santos eventually agreed to dismiss her claims against the federal Defendants and to
bifurcate all claims of supervisory liability against Sheriff Jenkins and the Board of
Commissioners. The supervisory liability claims have been stayed pending resolution of the case
against the officers. Santos filed a Second Amended Complaint containing the following counts:
Count I – Unlawful seizure, under 42 U.S.C. §1983, against Deputies Openshaw and
Lynch in their official and individual capacities.
Count II – Unlawful arrest, under 42 U.S.C. § 1983, against Deputies Openshaw and
Lynch in their official and individual capacities.
Count III – Violation of Fourteenth Amendment right to equal protection, under 42
U.S.C. § 1983, against Deputies Openshaw and Lynch in their official and individual
capacities.
Count IV – Conspiracy under 42 U.S.C. § 1985(3), against Deputies Openshaw and
Lynch in their official and individual capacities.
Count V – Supervisory liability, against Sheriff Jenkins, in his official and individual
capacities. (bifurcated and stayed)
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Count VI – A claim against the Frederick County Board of Commissioners under 42
U.S.C. § 2000d, which prohibits exclusion from participation in, denial of benefits of,
and discrimination under federally assisted programs on ground of race, color, or national
origin. (bifurcated and stayed)
Count VII - Monell entity liability against the Frederick County Board of
Commissioners. (bifurcated and stayed)
Deputies Openshaw and Lynch now move for summary judgment as to Counts I–IV.
II.
Legal Standard
The Court may grant summary judgment when ―the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.‖ Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); see also
Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (recognizing that trial
judges have ―an affirmative obligation‖ to prevent factually unsupported claims and defenses
from proceeding to trial).
Nevertheless, in determining whether there is a genuine issue of material fact, the Court
views the facts, and all reasonable inferences to be drawn from them, in the light most favorable
to the non-moving party. Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.
1987). Hearsay statements or conclusory statements with no evidentiary basis cannot support or
defeat a motion for summary judgment. See Greensboro Prof’l Fire Fighters Ass’n, Local 3157
v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).
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III.
ANALYSIS
a. Unlawful Seizure (Counts I and II)
The Supreme Court has recognized three distinct types of police-citizen interaction: (i)
arrests, which must be supported by probable cause, see Brown v. Illinois, 422 U.S. 590 (1975),
(ii) brief investigatory stops, which must be supported by reasonable articulable suspicion, see
Terry v. Ohio, 392 U.S. 1 (1968), and (iii) consensual encounters between police and citizens,
which require no objective justification, see Florida v. Bostick, 501 U.S. 429, 434 (1991). As the
first step in determining whether Santos was seized unlawfully, the Court must decide when she
was seized for purposes of the Fourth Amendment. The Court must then decide whether the
Deputies possessed adequate justification for the seizure at the time it occurred.
A seizure does not occur so long as, in view of the totality of the circumstances
surrounding the stop, ―a reasonable person would feel free to decline the officers’ request or
otherwise terminate the encounter.‖ Id. at 436; United States v. Weaver, 282 F.3d 302, 309 (4th
Cir. 2002). The encounter triggers Fourth Amendment scrutiny only when it loses its consensual
nature. Bostick, 501 U.S. at 434. The test is one of objective reasonableness, and the subjective
feelings of both the officers and the subject are irrelevant. Weaver, 282 F.3d at 309. Factors
considered by the courts to determine whether there has been a seizure include the time, place,
and purpose of the encounter, the words used by the officer, the officer’s tone of voice and
general demeanor, the officer’s statements to others present during the encounter, the threatening
presence of several officers, the potential display of a weapon by an officer, and the physical
touching by the police of the citizen. Id. at 309–10.
While there is no bright line test for determining when a seizure has occured, courts have
offered guidance by identifying factors and circumstances that do not, in and of themselves,
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constitute a seizure. For example, a seizure ―does not occur simply because a police officer
approaches an individual and asks a few questions.‖ Bostick, 501 U.S. at 434. ―[I]nterrogation
relating to one’s identity or a request for identification by the police does not, by itself, constitute
a Fourth Amendment seizure.‖ Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cnty,
542 U.S. 177, 185 (2004) (quoting INS v. Delgado, 466 U.S. 210, 216 (1984)). While retention
of a subject’s identification card or other personal property is ―highly material,‖ the subject is not
seized merely because an officer retains the identification beyond the time needed for a routine
procedure, such as a warrant check. Weaver, 282 F.3d at 310.
Santos urges that she was seized as soon as the Deputies approached and began to
question her. Openshaw and Lynch submit that Santos was not seized until she was actually
handcuffed. In this respect both sides ask too much.
Given the totality of the circumstances, the Deputies’ initial approach and questioning
fell well short of seizure. Santos points to certain factors in an attempt to demonstrate that the
Deputies asserted authority over her from the very beginning. She was approached by not one
but two officers, who circled around the storage container in order to approach her from opposite
directions and who stood while she remained sitting. There were no other people nearby. The
storage container was between Santos and the Common Market, and the Deputies stood on either
side of her, limiting her possible avenues of departure. The Deputies did not ask Santos whether
she would mind answering questions, and they did not advise her that she was free to decline or
to leave. They ―repeatedly‖ requested identification. Finally, Santos points out that she spoke
limited English, had little formal education, and was unfamiliar with American police
procedure.5
5
The parties have strenuously debated whether these last elements may properly be considered in an
objective analysis of the circumstances faced by a hypothetical reasonable person. A language barrier, at least, may
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On the other side of the ledger, however, the Deputies did not touch Santos, brandish
their weapons, or even use a commanding tone of voice. From all indications, they were
perfectly polite. Santos was alone and clearly the target of their investigation, but the
questioning occurred outside, in broad daylight. Though the Deputies stood between Santos and
her place of employment, they did not box her in. The case law is clear that just because a police
officer has possession of a subject’s ID, this does not mean that the subject cannot leave.
Pedestrian encounters are much less restrictive than traffic stops, and a police encounter does not
constitute a seizure just because it would be awkward for the subject to walk away. See Id. at
311–12.
The Court must also reject the argument that Santos was seized only when she was
placed in handcuffs. Santos was seized within the meaning of the Fourth Amendment when she
asked if she could get up and Deputy Openshaw gestured that she should remain seated. Under
the circumstances, Openshaw’s gesture would have communicated to a reasonable person that
she was not at liberty to rise and leave. The gesture was a show of authority to which Santos
submitted by remaining seated. From that point forward the encounter was nonconsensual, and
Santos’s Fourth Amendment rights were implicated.
The level of suspicion required to justify the seizure depends on the extent of the
restraint. When Openshaw directed Santos to remain seated, she was not yet under arrest.
Instead, she was temporarily detained while the Deputies inquired whether the ICE warrant was
be relevant in some limited cases. See United States v. Gray, 883 F.2d 320, 323 (4th Cir. 1989) (citing United States
v. Patino, 649 F.2d 724 (9th Cir.1981)). Yet, courts must be mindful of the Supreme Court’s admonition that ―[t]he
benefit of the objective custody analysis is that it is designed to give clear guidance to the police‖ and to avoid
burdening them ―with the task of anticipating the idiosyncrasies of every individual suspect and divining how those
particular traits affect each person’s subjective state of mind.‖ J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402
(2011) (quotations and citations omitted). Taking into account factors such as level of education and knowledge of
police procedure would, at the least, strain this dictate. Because consideration of the personal characteristics
proffered by Santos would not alter the Court’s final determination of when a seizure occurred, there is no need to
reach the question.
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still in effect. Santos was ―stopped‖ as that term is defined in Terry, meaning that reasonable
articulable suspicion was required.
The Deputies contend first that any seizure was lawful from the very beginning of the
encounter because, having observed Santos duck behind the storage container, they possessed
reasonable suspicion that criminal activity was afoot and were, accordingly, entitled to
investigate. They argue that while Santos claims she did nothing suspicious, her deposition
testimony is not necessarily inconsistent with their account. What may seem innocent to a
civilian may appear suspicious enough to a trained police officer to warrant at least a brief
detention.
On the basis of the record, the Court finds that the versions of events related by Santos
and by the Deputies differ sufficiently to create a disputed question of fact as to whether Santos
did, indeed, move behind the storage container upon apprehending the Deputies’ approach. Such
behavior would have given the Deputies the reasonable suspicion required for a Terry stop. For
purposes of the pending Motion for Summary Judgment, however, the Court will assume that
Santos did nothing when she first spotted the Deputies that would have warranted an
investigatory stop.
As stated, however, seizure did not occur until Deputy Openshaw gestured to Santos that
she should remain seated. Openshaw testified that, at the time he did so, he had already received
notice from the dispatch officer that Santos was the subject of an outstanding warrant. Santos
has offered no evidence to rebut Openshaw’s testimony, and she acknowledges that this piece of
information supplied not just reasonable suspicion, but the probable cause required for an arrest.6
For this reason, the Deputies’ actions at no time violated Santos’s Fourth Amendment rights.
6
Relegating this dispositive question to a footnote, Santos attempts to call the sequence of events into
question by pointing to certain inconsistencies in the parties’ deposition testimony. See Pl.’s Opp. 22 n. 10
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b. Equal Protection (Count III)
Santos alleges violation of her Fourteenth Amendment Equal Protection rights on the
ground that the Deputies’ decision to question her was predicated on nothing more than her
Latina appearance. An equal protection violation occurs in one of two ways: (1) when a law or
policy 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
discriminatory intent or animus is shown. Sylvia Dev. Corp. v. Calvert Cnty, 48 F.3d 810, 818–
19 (4th Cir. 1995). Santos does not allege that the Sheriff’s Office had a policy of explicit
classification on the basis of race or ethnicity. She does, however, allege that ―Defendants
Openshaw and Lynch subjected Plaintiff Orellana Santos to selective law enforcement out of a
bad faith and unlawful intent to drive her and other residents of Latino and/or foreign-born
appearance from Frederick County.‖ Am. Compl. ¶ 79.
It is well established that police may not seize a person7 or otherwise selectively enforce
the laws solely on the basis of race or ethnicity. See, e.g., Whren v. United States, 517 U.S. 806,
813 (1996). As stated above, however, Deputies Openshaw and Lynch had ample neutral
evidence to seize Santos when the dispatcher informed them of the open warrant. Moreover,
Santos has pointed to no similarly situated individuals—those with outstanding warrants—who
received preferential treatment from the Deputies.
(―Defendant Openshaw stated that she wrote her information down on a notepad; Defendant Lynch stated that he did
not remember; and Ms. Orellana Santos said she never was asked for her name or date of birth and never wrote it
down. . . . Furthermore, Defendant Openshaw admitted that he did not know when he received the national
identification card in the sequence of events.‖). It is undisputed, however, that Openshaw somehow obtained
Santos’s name and date of birth and called them in to dispatch. It is immaterial whether he retrieved this
information from Santos’s ID card, a piece of paper, or both, because there is nothing in the record to contradict his
assertion that he had already received a response to the warrant check at the time he motioned Santos to stay seated.
7
The Court pauses to note that Santos’s immigration status is irrelevant here. The Supreme Court has long
recognized that the guarantees of the Equal Protection Clause extend to illegal aliens as well as to citizens. See
Plyler v. Doe, 457 U.S. 202, 210–15 (1982).
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She maintains, however, that the Equal Protection Clause may be violated short of a
seizure if police target an individual for informal questioning because of his or her ethnicity.
Santos relies on the case of United States v. Avery, 137 F.3d 343, 353 (6th Cir. 1997), in which
the Sixth Circuit stated that ―consensual encounters may violate the Equal Protection Clause
when initiated solely based on racial considerations.‖ Santos has not identified, and the Court’s
own research has not unearthed, any case standing for the same proposition in the Fourth Circuit.
In United States v. Henderson, 85 F.3d 617 (table) at *3 (4th Cir. 1996), the court declined to
reach the question, upholding the district court’s factual determination that police officers
approached the defendant based on other, permissible factors ―[w]ithout deciding whether
selecting persons for consensual interviews based solely on race raises equal protection
concerns.‖
For a number of reasons, the Court declines Santos’s invitation to adopt the Sixth
Circuit’s stance on this issue. By definition, a consensual encounter with the police gives rise to
neither claim nor injury. Under existing law, a definable event, either a Terry stop or an arrest,
must serve as the basis for suit. If Santos is correct, almost any encounter between the police and
a person might be actionable, depending on the subjective intent of the officer.
Imagine the instant set of facts, with a few slight variations. The officers, as part of their
daily patrol, encounter Santos in the alleyway, eating her lunch. They approach, introduce
themselves, and ask if she has noticed any suspicious activity in the neighborhood. Santos says
she hasn’t seen anything. The officers then ask for identification. Santos produces a Maryland
driver’s license, which they examine briefly and then hand back. The officers thank Santos for
her time, tip their caps, and proceed on their way. Under the standard Santos urges on the Court,
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she could then sue, claiming that she was approached for no reason other than her Latina
appearance. One would be hard pressed, however, to identify the harm she had suffered.
In addition, recognizing an Avery claim would create a host of litigation problems. For
instance, using the above hypothetical, one must determine the point at which a claim would
accrue. Would it accrue when the Deputies decided to approach Santos, or when they asked for
identification, or when they examined her driver’s license? Moreover, by focusing on the
officers’ subjective intentions, Avery directs the court into an area that the Supreme Court has
repeatedly taken pains to avoid. Under Fourth Amendment jurisprudence, the Supreme Court
has instructed the lower courts to focus on the facts and circumstances of the encounter rather
than the mindset of the officers involved. A pure heart will not save an unfounded seizure, and a
wicked heart will not invalidate a seizure justified by the attendant facts. See, e.g., Brigham City
v. Stuart, 547 U.S. 398, 404 (2006) (―The officer’s subjective motivation is irrelevant.‖); Bond v.
U.S., 529 U.S. 334, 339 n. 2 (2000) (―[T]he issue is not [the agent’s] state of mind, but the
objective effect of his actions.‖); Scott v. U.S., 436 U.S. 128, 138 (1978) (―Subjective intent
alone . . . does not make otherwise lawful conduct illegal or unconstitutional.‖); Massachusetts v.
Painten, 389 U.S. 560, 565 (1968) (―Sending state and federal courts into the minds of police
officers would produce a grave and fruitless mis-allocation of judicial resources.‖) (WHITE, J.,
dissenting).
Even if Avery were the law in this Circuit, however, Santos could not succeed. A
selective enforcement claim requires a showing that enforcement in this case ―had a
discriminatory effect and . . . was motivated by a discriminatory purpose.‖ Wayte v. United
States, 470 U.S. 598, 608 (1985). Under the Sixth Circuit’s standard, a plaintiff must still
―demonstrate by a preponderance of the evidence that a police officer decided to approach [or
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pursue] him or her solely because of his or her race.‖ Avery, 137 F. 3d at 355 (quoting U.S. v.
Travis, 62 F.3d 170, 174 (6th Cir. 1995)). Santos has offered insufficient evidence from which a
jury could conclude that Openshaw and Lynch were motivated solely by her ethnicity.
Santos submits that the Frederick County Sheriff’s Office has entered into a
Memorandum of Understanding with ICE to help enforce certain provisions of federal
immigration law. She also points to specific anti-immigrant remarks attributed to Sheriff
Jenkins. Neither of these factors specifically implicates Deputies Openshaw and Lynch,
however. It is undisputed that neither officer was involved in the so-called ―287(g)‖ program.
Lynch was on his seventh day of training as a new officer on the day of Santos’s arrest, and
Openshaw testified that he had heard of the program but knew little about it. Nor is there any
evidence in the record that either officer was aware of Sheriff Jenkins’s alleged stance on illegal
immigration. Even assuming such knowledge, however, Santos’s theory that Openshaw and
Lynch would discriminatorily question Hispanic-looking individuals in an effort to curry favor
with Sheriff Jenkins is no more than conjecture.
Santos also seeks to tease discriminatory intent from several alleged instances in which
the Deputies deviated from what she characterizes as ―normal protocol.‖ For instance, her
counsel asked on deposition whether Deputy Openshaw, when encountering a suspect, would
normally ask for a name and date of birth. The Deputy agreed, and also testified that he did so in
this instance. In her summary judgment papers, Santos claims that the officers failed to take this
step, which she characterizes, on the basis of their testimony, as a ―normal procedure.‖ See Pl.’s
Opp. at 38, Docket No. 87. Under the summary judgment standard, the Court must credit
Santos’s version of events. By this tactic, Santos seeks to create a series of deviations from
standard procedure that prove discriminatory intent.
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Santos cannot bootstrap her way past summary judgment. All of the deviations concern
petty matters about which an officer would enjoy substantial latitude. Moreover, Santos has not
shown why these minor deviations, assuming they occurred, would result from racial or ethnic
bias.
Santos points out that this Court has, in the past, found that an inference of discriminatory
intent may be warranted when there is arguably no legitimate justification for a seizure. She
seeks to intersect a racial profiling case in which the plaintiffs contended that Maryland State
Troopers who stopped them were motivated by race. See Md. State Conference of NAACP
Branches v. Md. State Police, 454 F. Supp. 2d 339 (D. Md. 2006). That case centered on
Interstate 95, a highway that runs along the eastern seaboard from Miami to Maine connecting
the major east coast cities. I-95 is also a major artery for the transportation of drugs from Florida
northward. In Md. State Conference of NAACP Branches, several plaintiffs, supported by the
NAACP, sued the Maryland State Police and individual troopers. The plaintiffs contended that
they were the victims of racial profiling, in which the troopers allegedly targeted cars driven by
African Americans for pretextual stops in hopes of interdicting drugs.
In an opinion denying in part the defendant’s motion for summary judgment, Judge
Bredar of this Court found that there was sufficient evidence from which a jury could find that
the stop of plaintiff Gary Rodwell was motivated by Rodwell’s race. In making his ruling, Judge
Bredar relied on an evidentiary record that included the trooper’s statement that the stop was
―not really‖ for speeding, as well as ―a backdrop of powerful circumstantial evidence of racial
profiling in the form of statistics compiled by the Maryland State Police,‖ showing ―a
remarkable deviation in regard to the percentage of African-Americans stopped and searched‖ in
the area. Id. at 348.
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Md. State Conference of NAACP Branches is inapposite to Santos’s suit because the
quantum of evidence to substantiate an Equal Protection claim is lacking. Santos has offered no
evidence, direct or circumstantial, statistical or otherwise, that points to discriminatory intent on
the part of Deputies Openshaw and Lynch.8 Rather, she suggests that any time police target a
member of a protected class, and their asserted reasons for doing so are contested, the Court must
assume that discrimination against the protected trait was the true motivator. If Santos were
correct, the police would be subject to an Equal Protection suit whenever they approached a
member of a minority group who contended that she had done nothing to attract their attention.
Such a rule, which is not constitutionally mandated, would place the police in an untenable
position and unreasonably hamper law enforcement.
Because Santos has failed to adduce sufficient evidence indicating a discriminatory
motive, the Deputies are entitled to Summary Judgment on her Equal Protection claim.
c. Section 1985(3) Conspiracy (Count IV)
Count IV of the Complaint claims that Openshaw and Lynch engaged in a conspiracy to
deprive Santos of her civil rights in violation of 42 U.S.C. § 1985(3). An action under § 1985(3)
consists of five essential elements: (1) A conspiracy of two or more persons, (2) who are
motivated by a specific class-based, invidiously discriminatory animus, to (3) deprive the
plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury
to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection
8
Santos’s Complaint does claim that an unidentified report or reports shows that less than 10% of persons
arrested by the Frederick County Sheriff’s Office under the ―287(g) program‖ were arrested for a violent or serious
crime, that the number of persons detained under the program in Frederick County for non-violent crimes is greater
than the national average, and that, in 2008, over 90% of the persons arrested by the Sheriff’s Office and detained
under the program were of Latino descent. First, Santos has not actually offered any such evidence into the
summary judgment record. Second, as stated above, it is clear that Openshaw and Lynch were not acting pursuant
to the 287(g) program. Finally, Santos admitted at oral argument that she had no evidence of profiling or
discriminatory enforcement relating to the area where the encounter took place, the Sheriff’s Department as a whole,
or officers not engaged in the 287(g) program in particular.
Page 16 of 17
with the conspiracy. See United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 828–29
(1983); Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971); Ward v. Connor, 657 F.2d 45, 47
n. 2 (4th Cir. 1981).
Because the Court finds no evidence of an underlying discriminatory animus, there can
be no conspiracy.9 Summary judgment is, therefore, proper on this count as well.
IV.
CONCLUSION
For the foregoing reasons, the Court will, by separate Order of even date, GRANT the
Deputies’ Motion for Summary Judgment. Because the Court finds no constitutional violations
in the actions of Deputies Openshaw and Lynch, Santos’s claims against the Sheriff Jenkins and
the Frederick County Board of Commissioners (Counts V through VII of the Second Amended
Complaint) must be DISMISSED.
Dated this 7th day of February, 2012
_______________/s/___________
Benson Everett Legg
United States District Judge
9
The Court also finds that Santos’s conspiracy claim is foreclosed by the intra-corporate conspiracy
doctrine. See Marmott v. Md. Lumber Co., 807 F.2d 1180, 1184 (4th Cir. 1986); Buschi v. Kirven, 775 F.2d 1240,
1251–52 (4th Cir. 1985).
Page 17 of 17
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