UNITED STATES OF AMERICA v. JOHNSON

Filing 118

MEMORANDUM OPINION AND ORDER re: 86 MOTION for Summary Judgment filed by TERRY S. JOHNSON and 88 MOTION for Summary Judgment filed by the UNITED STATES OF AMERICA as set out herein. Signed by JUDGE THOMAS D. SCHROEDER on 6/20/2014. (Solomon, Dianne) .

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA,
Plaintiff,
v.
TERRY S. JOHNSON, in his
official capacity as Alamance
County Sheriff,
Defendant.

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1:12cv1349

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
The United States of America (the “Government”) allege that
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

Latinos,

in

violation

of

Amendments to the U.S. Constitution.

the

Fourth

and

Fourteenth

The Government brings this

action through Section 210401 of the Violent Crime Control and
Law Enforcement Act of 1994, 42 U.S.C. § 14141.

(Doc. 1.)

Before the court are cross-motions for summary judgment.
86, 88.)

(Docs.

For the reasons set forth below, the Government’s

motion is denied and Johnson’s motion is granted in part and
denied in part.

I.

BACKGROUND
Alamance County, located in central North Carolina, is home

to approximately 154,000 people.
County

QuickFacts,

37001.html

(last

U.S. Census Bureau, State &

http://quickfacts.census.gov/qfd/states/37/

revised

June

11,

2014).

Of

that

number,

approximately 66.6% are white (non-Hispanic), 19.2% are black,
and 11.6% are Hispanic. 1

Id.

The county’s Hispanic population

is a recent phenomenon, having grown from 736 in 1990 to almost
17,000 in 2010.
The

(Doc. 11-3 at 3; Doc. 1 ¶ 12.)

Alamance

County

Sheriff’s

Office

(“ACSO”)

is

the

largest law enforcement agency in the county and employs 266
total officers.
since 2002.
Immigration

(Doc. 89-2 at 7.)

Johnson has been the sheriff

(Doc. 86-4 at 30.)

On January 10, 2007, U.S.

and

Customs

Enforcement

(“ICE”)

entered

into

a

Memorandum of Agreement (“MOA”) with Johnson, which granted the
ACSO limited authority to investigate and enforce immigration
violations, pursuant to Section 287(g) of the Immigration and
Nationality
(Doc. 89-4.)

Act,

8

U.S.C.

§

1357(g)

(“the

287(g)

program”).

In June 2010, the Government began investigating

Johnson and the ACSO regarding “allegations of discriminatory
policing and unconstitutional searches and seizures.”

1

(Doc. 89-

The parties and their witnesses use the terms “Hispanic” and “Latino”
interchangeably.
To the extent there is a difference between the
terms, it has not been identified as significant for the purposes of
the pending motions, and so the court will use the terms
interchangeably.

2

58 at 2; Doc. 11-3 at 1.)
issued

an

11-page

On September 18, 2012, the Government

summary

of

its

investigation

and

detailed

charges of discrimination, and it terminated the 287(g) program.
(Doc. 1 ¶ 15; Doc. 11 at 8; Doc. 11-3.)

This action followed.

(Doc. 1 (filed Dec. 20, 2012).)
Generally,
ACSO

target

the

Latinos

Government
for

law

contends

that

enforcement

Johnson

actions,

and

the

including

traffic stops, vehicle checkpoints, and immigration referrals; 2
foster

a

commonly

culture
used

Fourth

population

against

to

Latinos;

prevent

and

fail

discriminatory

to

take

policing.

The Government argues that such actions violate

and
of

bias

measures

(Docs. 1, 89.)
the

of

Fourteenth

Alamance

Amendments,

County

equal

denying

protection

the
of

the

Latino
laws.

Johnson denies those allegations, arguing that he and his office
pursue criminals, whether or not they are Latino, and denying
that he has made derogatory statements about Latinos or fostered
a culture of bias against Latinos at the ACSO.

(Docs. 6, 87.)

Both parties have moved for summary judgment.
88.)

(Docs. 86,

Both parties have responded (Docs. 95, 96) and replied

(Docs. 99, 101).

Pursuant to this court’s May 8, 2014 order,

the Government also filed a limited surreply on the issue of
statute of limitations.

(Doc. 106.)

2

A hearing on the pending

The Government does not rely on allegations or evidence regarding
immigration referrals in its motion for summary judgment.

3

motions for summary judgment was held on June 13, 2014.
case

is

highly

essentially

all

fact-intensive
of

the

and

substantive

discussion is not warranted.

the

parties

facts,

further

As the
dispute
factual

Facts will be introduced as needed

in the legal analysis and construed in favor of the non-moving
party, as appropriate.
II.

ANALYSIS
A.

Standard of Review

“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ.

P.

56(a).

The

moving

party

bears

the

Fed. R.

burden

of

establishing that no genuine dispute of material fact remains.
Where the non-moving party has the burden of proof, the moving
party is entitled to summary judgment if it shows the absence of
material disputed facts.
317, 322-23, 325 (1986).

Celotex Corp. v. Catrett, 477 U.S.
For the purposes of these motions, the

court regards statements of the non-moving party as true and
draws all inferences in the non-moving party’s favor.
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Anderson

But a non-

moving party must establish more than the “mere existence of a
scintilla of evidence” to support his position.
the

evidence

is

“merely

colorable,

or

is

probative, summary judgment may be granted.”
4

Id. at 252.

not

If

significantly

Id. at 249-50.

Ultimately, summary judgment is appropriate where the non-movant
fails to offer “evidence on which the jury could reasonably find
for the plaintiff.”

Id. at 252.

Both parties focus their motions for summary judgment on
the

two

counts

alleged

in

the

Government’s

complaint

–

violations of the Fourteenth and Fourth Amendments as brought
through § 14141 – but Johnson raises two partial defenses that
should be addressed first: statute of limitations and mootness.
B.

Statute of Limitations

Johnson asserts that the Government’s action is subject to
a four-year statute of limitations, 28 U.S.C. § 1658(a), and
that

the

discriminatory

acts

alleged

are

rather than a continuing violation.

discrete

incidents

(Doc. 99 at 6-10.)

He

therefore contends that the Government cannot predicate § 14141
liability on any acts that occurred prior to December 20, 2008. 3
(Id.)

The

Government

argues

that

no

statute

of

limitations

applies to § 14141 (Doc. 106 at 2-3) and, moreover, that its
claims seek to remedy an ongoing pattern or practice of civil
rights violations, for which no limitations period applies (id.
at 3-5).
The

parties

limitations.

The

agree

that

Government

§

14141

relies

3

contains
on

a

no

statute

Magistrate

of

Judge’s

Johnson articulated his limitations argument late in the briefing,
and the issue is not well-developed on this record.

5

report and recommendation in United States v. City of Columbus,
Ohio, Civ. A. No. 2:99CV1097, 2000 WL 1133166 (S.D. Ohio Aug. 3,
2000), which concluded that § 14141 had no limitations period.
Id. at *10.

The Magistrate Judge rejected an argument that the

two-year statute of limitations applicable to claims under 42
U.S.C. § 1983 applied to the § 14141 claims in that case, noting
that “in actions brought in its sovereign capacity on behalf of
the

public

interest,

the

United

States

is

not

bound

by

any

limitations period . . . unless Congress explicitly provides
otherwise.”

Id.

Finding – without discussion - no express

statute otherwise, the court declined to impose any limitation
but quickly noted that the motion to dismiss stage was not “the
proper vehicle for invoking such principles.”

Id.

Thus, the

court’s conclusion is dicta and omits any discussion of § 1658’s
four-year limitations period.
Section

1658

is

entitled

“Time

limitations

on

the

commencement of civil actions arising under Acts of Congress”
and provides:
Except as otherwise provided by law, a civil action
arising under an Act of Congress enacted after the
date of the enactment of this section may not be
commenced later than 4 years after the cause of action
accrues.
28 U.S.C. § 1658(a).
some

four

years

The statute was enacted December 1, 1990,

before

§

14141’s

6

enactment

on

September

13,

1994.

Therefore, by the plain language of § 1658, it applies to

claims under § 14141, unless “otherwise provided by law.”
The Government first argues that “[t]he principle that the
United States are not bound by any statute of limitations, nor
barred by any laches of their officers, however gross, in a suit
brought by them as a sovereign Government to enforce a public
right, or to assert a public interest, is established past all
controversy or doubt,” citing the dissent in Occidental Life
Insurance Co. v. EEOC.

432 U.S. 355, 382 (1977) (quoting United

States v. Beebe, 127 U.S. 338, 344 (1888)).

In Occidental Life,

the majority held that EEOC enforcement actions are not subject
to State statutes of limitations, and the dissent argued that
the

notion

that

the

Government

was

suing

as

sovereign

was

misplaced because it was not suing to redress its injury, but
rather the injury of others.

Id. at 383.

the same could be said here. 4

Johnson contends that

Moreover, here, the Government

4

The Government argued at the hearing that it is suing on its own
behalf, in its capacity as a sovereign, not on behalf of the Latino
residents of Alamance County. It was unable to provide legal support
for that position, other than the text of § 14141 itself, but argued
that civil rights violations not only harm the individual victims but
also broadly injure the public’s trust in law enforcement and the
integrity of the criminal justice system.
No party has provided any
decision that considers whether the United States is acting in its
sovereign capacity in a suit pursuant to § 14141, but there is
authority for the proposition that the Government acts in its
sovereign capacity when enforcing its laws, even if some of the
benefit of the suit inures to private individuals:
When the United States brings suit in its sovereign
capacity, a statute of limitations does not ordinarily
apply unless Congress has expressly provided otherwise.

7

must contend with § 1658 – a federal, not State, statute of
limitations - which was not enacted at the time of Occidental
Life.

The Government has failed to consider this development.

Even assuming Johnson is correct and § 1658 limits § 14141
actions, however, it is not clear when a § 14141 claim accrues.
Neither party has pointed the court to any case law addressing
that question, and the court has found none.

In the absence of

direct authority, Johnson analogizes § 14141 to Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., which addresses unlawful discrimination in employment.

He

contends that § 14141’s “pattern or practice” requirement is
similar

to

an

“unlawful

employment

practice,”

predicated on a discrete incident or incidents.
9.)

Under

independently

Title

VII

from

law,

other

each

acts

wrongful

for

act

timeliness

which

is

(Doc. 99 at 8is

considered

purposes,

and

“discrete acts that fall within the statutory time period do not
make timely acts that fall outside the time period.”

Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 112 (2002).
Where, however, the government’s action vindicates
private interest, the defense is typically available.

a

In this instance, the United States is acting in its
sovereign capacity.
In suing to enforce the securities
laws, the SEC is vindicating public rights and furthering
public interests.
This is so despite the fact that the
relief sought is disgorgement [which may be used to
compensate injured victims].
S.E.C. v.
omitted).

Calvo,

378

F.3d

1211,

1218

8

(11th

Cir.

2004)

(citations

The

Government

responds

that

Johnson’s

analogy

to

an

unlawful employment practice is inapt because Congress enacted
specific time limitations for Title VII claims but did not for
§ 14141.
“pattern

(Doc. 106 at 2-3.)
or

practice”

is

It also contends that § 14141’s

not

similar

to

discrete

acts

of

unlawful employment practices, which accrue when they occur, but
instead

that

jurisdiction

a

§

engages

federal law.”

14141
in

a

claim

“‘accrues’

pattern

(Id. at 3 n.2.)

or

only

practice

of

after

a

violating

The Government maintains that

each individual discriminatory act it alleges is not a § 14141
claim in and of itself, but rather is “relevant evidence to
proving the existence of a larger pattern.”

(Id.)

The Government further argues that § 1658 is inapplicable
because it seeks injunctive relief against an ongoing violation.
Although

the

Government

presents

evidence

of

conduct

and

statements reaching back to 2007, some of the evidence is more
recent (e.g., Docs. 89-16, 89-21, 89-22 (emails from 2010, 2011,
and

2012))

and

some

of

the

evidence

is

not

clearly

from

a

specific date or time period (e.g., Doc. 89-27 at 4 (“primarily”
the terms “wetback” and “TONC” 5 heard at ACSO, without a specific
time

period

statistical

identified
reports

for

submitted

use
by

5

of
the

those
United

terms)).
States’

proposed

TONC apparently refers to “Travel Outside of Native Country.”
Doc. 89-29 at 4.)

9

The

(See

experts include data from as recent as 2013.
89-45.)
which

(See Docs. 89-42,

This is consistent with the Government’s complaint,

alleges

that

the

ACSO’s

violations

began

January 2007” and continued “to the present.”

in

“at

least

(Doc. 1 ¶ 1.)

The Government seeks injunctive relief accordingly.

(Id. ¶¶ 80-

82.)
When the evidence is viewed in the light most favorable to
the Government, as it must be at this stage, the record supports
claims of a pattern or practice of unconstitutional behavior
occurring through 2013.
of

Johnson

period
apply

of
to

Training,

as

to

§ 1658
claims,
Inc.,

As a result, summary judgment in favor

certain
is

not

not
36

acts

falling

warranted.

evidence.

F.3d

336,

Statutes

See

346

outside

the
of

limitations

Brinkley-Obu

(4th

Cir.

four-year

1994)

v.

Hughes

(stating,

regarding a Title VII claim, that “[s]tatutes of limitations do
not

operate

as

an

evidentiary

bar

controlling

the

evidence

admissible at the trial of a timely-filed cause of action.”)
Therefore,

even

assuming

application

of

a

statute

of

limitations, evidence of events or statements occurring in 2007
and 2008 may be considered as long as it informs a proper claim
of a pattern or practice of unconstitutional conduct extending
through more recent years.

Johnson’s motion on this ground will

therefore be denied.

10

C.

Mootness

The

Government’s

complaint

alleges

that

the

ACSO

automatically referred Latino arrestees to ICE but did not refer
similarly-situated non-Latinos.
had

the

authority

to

(Doc. 1 ¶¶ 47-51.)

investigate

potential

The ACSO
immigration

violations pursuant to the MOA between ICE and the ACSO.
¶¶ 13-14.)

(Id.

Johnson contends that these allegations are now moot

because ICE terminated the MOA on September 18, 2012, and the
ACSO

no

longer

has

authority

to

investigate

immigration violations or to refer them to ICE.
(citing

Doc.

11

at

7-8).)

Johnson

arrestees

(Doc. 87 at 18

previously

raised

argument in his motion for judgment on the pleadings.
at 7-8.)

for

this

(Doc. 11

The Government contends that this court has already

rejected

Johnson’s

judgment

on

the

mootness

pleadings.

arguments
(Doc.

95

in

its

order

at

25-26.)

denying
It

again

asserts, as it did in response to Johnson’s motion for judgment
on

the

pleadings,

that

“[a]

fact

cannot

be

moot,”

and

that

evidence of how the ACSO handled Latino arrestees while the MOA
was in place can still support its larger § 14141 claims.

(Id.

at 26.)
As this court previously indicated, “the non-existence of
one ground or theory does not render the larger claim moot.”
(Doc. 19 at 10 (citing Simmons v. United Mtg. & Loan Inv., LLC,
634 F.3d 754, 763 (4th Cir. 2011)).)
11

Summary judgment applies

to claims, not evidence in support of a claim.
P.

56(a).

Had

the

Government’s

§ 14141

See Fed. R. Civ.

claim

been

solely

predicated on the ACSO’s management of Latino arrestees under a
now-terminated MOA, the claim might now be moot.

But that is

The Government’s theory of the case 6 simply seeks

not the case.

to use factual evidence regarding the ACSO’s treatment of Latino
arrestees while the MOA was in effect to bolster its broader
evidence regarding the ACSO’s treatment of Latinos in an attempt
to

prove

a

enforcement.

pattern

or

practice

of

discriminatory

law

Therefore, summary judgment in favor of Johnson is

not warranted on mootness grounds.
The

court

now

turns

to

the

two

central

claims

of

the

Government’s case under § 14141: that Johnson’s law enforcement
activities

violated

the

Equal

Protection

Clause

Fourteenth Amendment and the Fourth Amendment.

of

the

Both parties

seek summary judgment in their favor on both claims.
D.

Equal Protection
1.

Applicable law

The Fourteenth Amendment’s Equal Protection Clause declares
that “[n]o State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.”
amend. XIV.

U.S. Const.

The Clause “is essentially a direction that all

6

For purposes of its summary judgment motion, the Government has
chosen not to rely on evidence regarding the ACSO’s alleged automatic
referrals of Latino arrestees to ICE. (See Doc. 95 at 26; Docs. 88,
89.)

12

persons similarly situated should be treated alike.”

City of

Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985).

It

enactment,

applies

to

all

administration,

regulations.

State

and

action,

including
of

enforcement

the
and

laws

Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d

810, 818 (4th Cir. 1995).
The Fourth Circuit has recognized that “[e]ven though a
state law is facially neutral, its administration or enforcement
can

effect

persons

an

and

context,

the

unequal

disfavoring

application

plaintiff

another.”
bears

by
Id.

the

favoring
at

one

class

818-19.

initial

burden

discriminatory administration or enforcement.

In
of

of

this

proving

Id. at 819.

To

do so, the plaintiff must show more than a disparate impact on a
particular racial group; the plaintiff must show that the State
action

“was

motivated,

discriminatory’

intent.”

at

least
Id.

in

part,

(citing

by

an

Village

‘invidiously
of

Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)).
Thus,

a

plaintiff

effect to succeed.

must

prove

both

discriminatory

intent

and

Id. at 819-20.

Sometimes – but rarely – a pattern is so clear that nothing
more than proof of the pattern is needed to find discriminatory
intent.

Arlington Heights, 429 U.S. at 266 (citing Gomillion v.

Lightfoot, 364 U.S. 339 (1960), and Yick Wo v. Hopkins, 118 U.S.

13

356 (1886), as examples).

More often, courts must look to other

evidence, including
(1) evidence of a “consistent pattern” of actions by
the decisionmaking body disparately impacting members
of a particular class of persons; (2) historical
background of the decision, which may take into
account
any
history
of
discrimination
by
the
decisionmaking body or the jurisdiction it represents;
(3) the specific sequence of events leading up to the
particular decision being challenged, including any
significant departures from normal procedures; and (4)
contemporary statements by decisionmakers on the
record or in minutes of their meetings.
Sylvia, 48 F.3d at 819 (citing Arlington Heights, 429 U.S. at
266-68, and Talbert v. City of Richmond, 648 F.2d 925, 929 (4th
Cir. 1981)).
“Once this showing is made, the court proceeds to determine
whether the disparity in treatment can be justified under the
requisite level of scrutiny.”
648, 654 (4th Cir. 2001).

Morrison v. Garraghty, 239 F.3d

Where the difference in treatment is

based on ethnicity – as alleged here – the court applies “strict
scrutiny.”

Fisher v. Univ. of Tex. at Austin, __ U.S. __, __,

133 S. Ct. 2411, 2417 (2013) (government decisions that touch
upon an individual’s race or ethnic background are subject to
strict scrutiny).
2.

Challenge to Dr. Lamberth’s report

As part of its primary case, the Government has proffered
two expert reports, one of which is from John Lamberth, Ph.D.
Dr.

Lamberth’s

report

purports
14

to

show

that

the

ACSO

is

“significantly more likely to stop and cite Hispanic motorists
than non-Hispanic motorists on three major roadways in Alamance
County.”

(Doc. 89-42 at 19.)

Johnson argues, in response to

the Government’s motion for summary judgment, that the court
should

strike

the

report

under

Daubert

v.

Merrell

Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), because it is “junk
science.” 7

(Doc. 96 at 25-28.)

The Government responds that

Johnson does not ask the court to exclude Dr. Lamberth as an
expert (Doc. 101 at 11 n.4), which is not entirely responsive,
because a successful motion to strike the report would yield the
same result.

Indeed, Johnson has followed Local Rule 7.6, which

allows the challenge to a separate piece of evidence within a
summary

judgment

brief

without

a

separate

motion

to

strike.

Because this is a threshold evidentiary question, it will be
addressed first.
Johnson

argues

that

Dr.

Lamberth’s

method

of

having

observers identify Hispanic drivers is not generally accepted.
See Daubert, 509 U.S. at 594.

Johnson relies on the testimony

of his own expert for this proposition, as well as on a separate
study.

(Doc.

96

at

26.)

However,

the

Government

notes,

Johnson’s expert, a statistician, conceded in deposition that he
7

In interpreting Federal Rule of Evidence 702, Daubert set forth
several factors for considering an expert opinion’s validity:
the
testability of the hypothesis; its subjection to peer review; the
potential rate of error; whether controls/standards were used; and its
general acceptance in the relevant scientific community.
The court
must consider its “fit” to the case. 509 U.S. at 591-95.

15

is

not

familiar

with

the

methods

of

observation

that

are

accepted in the field of criminology or the academic literature
on observational benchmarking.

(Doc. 101-10 at 18-25.)

Dr.

Lamberth, in contrast, relies on several peer-reviewed studies
to support his observational method (Doc. 101 at 11-12), and the
Government cites the decisions of several courts it says have
relied on Dr. Lamberth’s methods.

See, e.g., State v. Soto, 734

A.2d 350, 352-54 (N.J. Super. Ct. Law Div. 1996).

Johnson also

charges that Dr. Lamberth did not properly train his observers,
attacks the controls, if any, over them, and argues that Dr.
Lamberth’s

selection

representative.

to

the

support.

roads

for

observation

are

not

(Doc. 96 at 27-28.)

Unfortunately,
cite

of

throughout

record,

L.R.

and

7.2(a)

his

the

argument

court

(“Each

will

statement

Johnson
not

of

fails

search
fact

it

should

to
for
be

supported by a reference to a part of the official record.”).
On this record, the Government has provided evidence to support
Dr. Lamberth’s methods and results, and Johnson has not properly
advanced

sufficient

unreliable

or

evidence

invalid.

that

establishes

Therefore,

while

the

that

they

are

determination

whether Dr. Lamberth’s opinions are the product of valid and
reliable methods may be the subject of further debate, Johnson’s
request to strike Dr. Lamberth’s report falls short at this time
and will be denied.
16

3.
The
practice
studies

Evidence presented

Government’s
falls
and

into

evidence

five

rebuttals

of

general

an

unlawful

categories:

purporting

to

prove

pattern

(1)
a

or

statistical

discriminatory

pattern of traffic stops, (2) depositions and declarations from
current

and

former

ACSO

employees,

(3)

emails

among

ACSO

employees, (4) depositions and declarations from Alamance County
residents and others who have interacted with the ACSO, and (5)
depositions
pattern

of

Government

of

other

North

discriminatory
relies

both

on

Carolina
traffic

sheriffs.
stops

statistical

and

studies

To

prove

arrests,

a

the

attempting

to

capture a broad picture of stops conducted in Alamance County
and on specific stops of identified individuals as examples.

To

prove discriminatory intent, the Government relies on evidence
relating to the pattern itself, statements and directives made
by ACSO leadership, derogatory terms for Hispanics used at the
ACSO, emails and other evidence demonstrating a culture of antiLatino bias at the ACSO, a lack of training, and a lack of antidiscrimination preventative measures allegedly used commonly by
other law enforcement agencies.
Johnson rebuts the charges against him in the complaint and
in

the

Government’s

statistical

study

summary
of

his

judgment
own

that

motion

by

purports

presenting
to

a

disprove

allegations of anti-Latino bias; by denying, explaining, and in
17

some

cases

contextualizing

specific

examples

cited

by

the

Government; by proffering evidence from ACSO leadership and ACSO
deputies

that

contradicts

the

Government’s

evidence;

and

by

attacking the credibility of the Government’s witnesses.
a.

Examples of disputed facts

An exhaustive review of the evidence is not warranted at
this stage because it is clear that the Government has presented
evidence which, if credited, demonstrates both disparate impact
and discriminatory intent, but there are genuine disputes over
material facts.
For example, the Government alleges that Johnson ordered
subordinates to “go get them Mexicans” and told a reporter that
“[i]n Mexico, there’s nothing wrong with having sex with a 12,
13-year-old girl.”

(Doc. 89 at 4, 7.)

Johnson admits saying

“go get them Mexicans” to subordinates but states that it was in
the

context

of

a

discussion

regarding

Mexican

gang

members

committing car break-ins and vandalism and that his subordinates
understood the directive to mean “go get the people that were
responsible for the crimes.”
4-5).)

(Doc. 96 at 2 (citing Doc. 96-1 at

Similarly, Johnson argues that the reporter distorted

his statement.

Johnson says that he was referring only to “the

criminal element” – not Latinos generally (id. at 8) and that it
was in reference to a specific case in which a father traded his
13-year-old daughter to drug traffickers (Doc. 87 at 9).
18

The

Government

derogatory

terms

has
to

produced

describe

evidence
Latinos

that

and

Johnson

used

instructed

his

subordinates to arrest Latinos indiscriminately.

For example,

former ACSO officer Adam Nicholson stated that after the owner
of the Rocky Top mobile home park complained to Johnson about
“Mexicans” in the park, Johnson told him: “I want every chilishitter in that park arrested.”
¶ 9).)
5

(Doc. 89 at 5 (citing Doc. 89-6

In response, Johnson denies ever saying that (Doc. 96 at

(citing

Doc.

96-10

at

35))

and

attacks

Nicholson’s

credibility, stating that he had a sexual harassment complaint
filed against him, that he was demoted and moved to patrol, and
that he actively supported Johnson’s electoral opponent (id. at
6).

Similarly, the Government has produced other evidence that

ACSO

officers

used

derogatory

terms,

including

“wetback,”

“beaner,” “spic,” “taco,” and “taco eater.”

(Doc. 89 at 9.)

response,

deputies

Johnson

proffers

evidence

from

who

In

claim

never to have heard such terms used at the ACSO and contends
that the Government’s evidence does not specifically relate to
the time during which Johnson was Sheriff.
The

Government

also

presented

(Doc. 96 at 11-13.)
evidence

of

several

individual traffic stops, which are allegedly indicative of the
ACSO’s

pattern

of

discriminatory

law

enforcement.

Johnson

disputes them.

The notable development here is that in the

complaint,

Government

the

alleged
19

five

specific

stops

it

contended were made without legal basis – either articulable
suspicion or probable cause.

(Doc. 1 ¶ 37.)

However, Johnson

has now produced evidence of a legal basis for each of these
stops except one - which Johnson claims he cannot investigate
because the complainant fails to provide sufficient facts to do
so.

(Doc. 87 at 13-16.) 8

In response, the Government identified

three more alleged incidents of illegal stops, but Johnson has
again provided evidence demonstrating a legal basis for each of
them.
ACSO

(Doc. 96 at 19-20.)
is

entitled

to

summary

Consequently, Johnson contends the
judgment

against

the

Government

because the ACSO had a legal basis for each of the Government’s
incidents.

Even

assuming

no

Fourth

Amendment

violations,

however, the stops all involved Latinos and may be some evidence
8

For example, in 2011, Juan Carlos Reyes Montoya was stopped by an
ACSO deputy in a marked car. (Doc. 1 ¶ 37(b); Doc. 89 at 14; Doc. 8953 ¶¶ 1-5.) According to Montoya, the deputy saw him as he passed him
on Highway 54, made a U-turn, and followed him for five minutes before
initiating the stop.
(Doc. 89-53 ¶¶ 2-5.)
Montoya says he was
unaware of any observable violation or other reason why the deputy
would have pulled him over, and the deputy never told him why. (Id.
¶¶ 6, 8.) Upon request, Montoya provided his consular ID in lieu of a
driver’s license; he was arrested and cited for not having an
operator’s license.
(Id. ¶¶ 8-10.)
In response, ACSO officer Troy
Anthony admits to the stop but states he never saw the driver of the
vehicle and alleges several reasons why he initiated the stop: Montoya
was driving slowly in a neighborhood that had experienced several
break-ins, and Anthony had run a license plate check and determined
that the car was registered to an out-of-state driver with a revoked
license. (Doc. 87 at 14; Doc. 86-27.) Johnson argues that, on these
facts, Anthony had reasonable suspicion to initiate the traffic stop.
At the hearing, the Government contended that it was unaware of any
evidence that the deputy investigated the license issue before making
the stop.
Certainly, a fair reading of the deputy’s declaration is
that he did so. (Doc. 86-27 ¶¶ 4-5.) Legality of the stop aside, the
Government argues that it is some evidence of selective enforcement
against Latinos.

20

of

discriminatory

enforcement

in

violation

of

the

Fourteenth

Amendment if other additional evidence – e.g., the statistical
studies – is believed.
Other disputed incidents involve stops at checkpoints.
Government
driver,

proffered

Paul

evidence

Crotts,

was

that

waved

a

white

through

predominately Hispanic mobile home park.

a

Alamance

The

County

checkpoint

near

a

(Doc. 89-15 at 4-5.)

When Crotts attempted to produce his license, ACSO officer Sara
Keller allegedly waved him through and stated, “No, we’re here
to

get

us

referring

some.”

to

(Id.)

Hispanics.

Crotts
(Id.

at

understood
9.)

Keller

Crotts’

to

wife,

Crotts, who was also in the car, confirmed this account.

be

Paula
(Doc.

89-54 at 7.)

Keller, on the other hand, denies ever waving

anyone

a

through

checkpoint

(Doc.

86-34

at

4),

and

Johnson

contends that the checkpoint at issue was not intended to target
Latinos, but instead was meant to find gang members (Doc. 87 at
17-18).
b.

Disputed statistical studies

The validity and reliability of both parties’ statistical
studies
conducted

is
an

also

contested.

observational

The
study

Government’s
of

three

roads

Dr.

Lamberth

in

Alamance

County to create a benchmark of traffic violators and compared
that benchmark to a database of approximately 10,000 citations
from 2008 to 2013.

(Doc. 89-42.)
21

He found that the “ACSO is

significantly more likely to stop and cite Hispanic motorists
than non-Hispanic motorists on three major roadways in Alamance
County.”
other

(Id. at 19.)

proposed

expert,

John MacDonald, Ph.D., the Government’s
focused

on

three

databases

(stops,

citations, and arrests) to determine likely outcomes of stops
based on ethnicity and to identify individual ACSO officers who
stopped, cited, and arrested Latinos at higher rates than their
colleagues.

(Doc. 89-45.)

He found that Latinos were more

likely than non-Latinos to be arrested following a stop, more
likely to be searched, and less likely to be found carrying
contraband

during

a

search,

which

“suggest[s]

that

a

threshold of suspicion is being applied to Latinos.”
13.)
who

lower

(Id. at

He also found “a large number of outlier officers . . .
are

stopping,

citing,

and

rate” than other ACSO officers.
Johnson
discussed

challenges

earlier,

he

arresting

Latinos

at

a

higher

(Id.)

the

validity

argues

that

of

Dr.

both

studies.

Lamberth’s

method

As
of

observational benchmarking is inaccurate because race/ethnicity
is

difficult

to

determine

visually

and

that

Dr.

Lamberth’s

method is “not accepted as valid in the scientific community.”
(Doc. 96 at 16.)
roadways,

its

He also faults the study for its choice of

Hispanic

surname

analysis,

and

its

failure

to

consider written or verbal warnings given in lieu of a citation.
(Id. at 14-18.)

He challenges Dr. MacDonald’s study on the
22

basis that it does not support the allegation that ACSO deputies
are stopping Latinos at a higher rate than non-Latinos.
18.)

(Id. at

He contends that a better method of analysis would be to

compare

Alamance

County

to

comparable

Randolph and Orange Counties.

nearby

counties,

like

(Id. at 18-19.)

Johnson also proffers his own proposed expert, David Banks,
Ph.D., who submitted a statistical study.
Banks

focused

non-checkpoint
(Id.)

on

checkpoint

traffic

siting,

stops,

using

(Doc. 86-16.)

checkpoint
data

from

Dr.

outcomes,
2009

to

and

2012.

He found “no statistical evidence that checkpoints were

sited in ways that targeted the Latino population” and that noncheckpoint

traffic

“stop

rates

[for

Latinos]

match

the

population rates” of Latinos, suggesting that the ACSO is not
targeting Hispanic motorists.

(Id. at 6, 13-14.)

He also found

that, while there were differences between Hispanic and nonHispanic

drivers’

arrest

statistically significant.
The
grounds.

Government
In

rates,

differences

were

not

(Id. at 10.)

challenges
it

Dr.

Banks’

faults

the

study
study

on

several

for

using

unadjusted census data from Alamance and other counties.

(Doc.

95 at 17-19.)

particular,

those

The Government contends that unadjusted census

data do not “account for the driving age population of various
ethnic groups, the rate at which drivers from various ethnic
groups violate traffic laws, variations in traffic patterns and
23

driving

habits

on

particular

roadways,

[or]

deployment

officers” and are therefore an unreliable comparator.
18.)

of

(Id. at

The Government has submitted an additional report from Dr.

Lamberth, identifying problems with, and rebutting, Dr. Banks’
report.

(Doc. 89-43.)
c.

The Government’s “uncontested” evidence

At the June 13, 2014 hearing, the Government claimed to
have three categories of uncontested evidence that entitle it to
summary

judgment

discriminatory
take

on

the

directives

remedial

steps

issue
from

of

ACSO

after

discriminatory

leadership,

receiving

a

notice

intent:

failure
of

to

alleged

discrimination, and a failure to discipline any ACSO officers
for discriminatory conduct.
Much of the evidence the Government points to in its first
category is contested, however.

For example, counsel for the

Government characterized the incident in which Johnson directed
three officers to “go get Mexicans” as uncontested.

To reach

this conclusion, however, the Government makes the ambitious,
and

in

this

context

extraordinary,

argument

that

this

court

should disregard Johnson’s testimony to the contrary because it
is “self-serving.”

(Doc. 89 at 19-20.)

In support of that

position, which it claims is “well-established” in the Fourth
Circuit (id.

at

19),

the

Government

cites

Food, Inc., 370 F.3d 423 (4th Cir. 2004).
24

Williams

v.

Giant

But there, the Fourth

Circuit

held

that

an

employee’s

testimony

that

her

job

performance evaluations were “unfair and untrue and incorrect”
was insufficient to create a genuine dispute of material fact on
the issue whether it would have been futile for her to apply for
a

promotion.

Id.

at

433.

The

court

characterized

that

testimony as a “self-serving opinion” and stated that “absent
objective corroboration, [it cannot] defeat summary judgment.”
Id.

(emphasis

employee’s

added).

other

However,

testimony

the

regarding

court
facts,

credited

the

even

the

if

testimony was in her interest as a party. 9

See, e.g., id. at 432

(crediting

employee’s

the

reasonable

inference

from

testimony

that job postings did not appear in her store).
Here, Johnson’s denials, though in his interest as a party,
are

factual:

he

testified

that

he

did

not

use

anti-Hispanic

derogatory terms or order deputies to target Hispanics.
9

This

The Government also cites three non-binding cases, one of which is a
Magistrate Judge’s recommendation. (Doc. 89 at 19-20.) To the extent
these cases are inconsistent with Williams and Anderson, they are not
persuasive authority, especially in the context raised here.
See
Harris v. Home Sales Co., 499 F. App’x 285, 294 (4th Cir. 2012)
(rejecting employee’s statement that he did not return to work because
his boss allegedly told him to take the week off, when employee
conceded he had already completed paperwork for new job); Riley v.
Honeywell Tech. Solutions, Inc., 323 F. App’x 276, 277 n.2 (4th Cir.
2009)
(rejecting
employee’s
claims
that
job
candidate
was
“preselected”
and of alleged “inconsistencies” in the promotion
process as lacking viable evidentiary support and nevertheless
insufficient to constitute pretext); Whitlock v. Greenlee, Civ. A. No.
1:10CV958, 2013 WL 6247259, at *2 (M.D.N.C. Dec. 3, 2013) (stating
only general rule that self-serving statement will not defeat claim,
citing Nat’l Enter., Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir.
2000), which rejected self-serving statement of a party as to the
alleged contents of sales documents when the party failed to produce
the actual documents)).

25

court must credit that testimony at the summary judgment stage.
See Anderson, 477 U.S. at 255 (“The evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn

in

his

favor.”).

Additionally,

in

this

particular

incident, Johnson provided further context for the directive “go
get

Mexicans,”

which,

Government’s case.

if

believed,

casts

(See Doc. 96-1 at 4-5.)

doubt

on

the

These disputes

present classic credibility battles, and the Government cannot
have it its way simply because it concludes that the deputies
are more believable in this context.
The Government’s second category of “uncontested” evidence
–

the ACSO’s

failure

to

take

remedial

steps

after

receiving

notice of alleged discrimination from a community group, the
federal investigation itself, and resident complaints (Doc. 89
at 17-18) – depends in large part on its first category and on
other contested evidence, such as the statistical studies.

If

no discrimination was occurring, then the ACSO could hardly be
faulted for failing to take remedial steps.

This category may

take on more significance if discrimination is proven at trial,
but it cannot stand alone to support summary judgment.
The
failure

Government’s
to

statements

discipline
–

is

third

category

officers

factually

for

–

the

ACSO’s

discriminatory

underdeveloped.

For

alleged

conduct

example,

or
the

Government points to ACSO officer Mario Wiley’s 2010 email to
26

colleagues, forwarding a video game, in which the goal is to
kill

“Mexican

Nationalist[s],”

“Drug

Smuggler[s],”

and

“Breeder[s]” coming over the U.S.-Mexico border, and the final
screen of the game tells the player how many “wetbacks” have
been hit.

(Doc. 89-16.)

However, Wiley was a detention officer

who did not conduct stops and arrests but apparently worked only
at the jail.

There is no evidence that Johnson himself knew of

the game until after Wiley’s deposition in this litigation, and
it is unclear from the record whether any of the ACSO leadership
knew of it.

Without knowledge of the alleged actions, ACSO

leadership could not have disciplined the officers.

Moreover,

it is unclear from the record whether the email was ever sent to
any

ACSO

deputy

influenced

responsible

deputies’

law

for

conducting

enforcement

traffic

practices.

stops

Thus,

or

while

this is some evidence of intent, its import is not clear on this
record.
4.

Conclusion

Credibility is questioned, facts are disputed, and dueling
statistical

studies

presented.

Viewing the evidence in the light most favorable to

Johnson,

the

purporting

Government

has

to

not

show

divergent

produced

truths

undisputed

are

facts

demonstrating disparate impact and discriminatory intent as a
matter of law.

And yet, the Government has presented evidence,

which, when regarded in the light most favorable to it, prevents
27

Johnson from obtaining summary judgment in his favor.

A trial

is necessary to resolve these disputes over material facts.
E.

Fourth Amendment

The sum and substance of the Government’s claims under the
Fourth Amendment are stated thinly in the complaint’s second
claim for relief as follows:
75.
Defendant and his agents, including ACSO
deputies, have unreasonably seized numerous persons in
Alamance County.
These unreasonable seizures include
seizures made without probable cause or reasonable
suspicion.
76.
Moreover, Defendant and his agents engage in a
pattern of making pretextual traffic stops motivated
by the ethnicity of the driver rather than a traffic
infraction.
77. The unreasonable seizures made by Defendant and
his agents constitute a pattern or practice by law
enforcement officers that deprives persons of their
rights under the Fourth and Fourteenth Amendments, in
violation of 42 U.S.C. § 14141(a).
(Doc. 1 ¶¶ 75-77.)

The Government now argues that this claim

encompasses the ACSO’s alleged discrimination on the basis of
ethnicity

in

initiating

traffic

stops

and

use

of

checkpoints for general law enforcement purposes.
36-40.)
under

(Doc. 89 at

Johnson contends that the first does not state a claim
the

Fourth

Amendment,

but

rather

Protection Clause of the Fourteenth Amendment.
38.)

vehicular

under

the

Equal

(Doc. 96 at 36-

He contends that the second was not properly pleaded in

the Government’s complaint and is being unfairly raised at this

28

late stage, without proper notice.
maintains

that

the

(Id. at 38-40.)

“investigational

conducts are legal.

(Id. at 38.)

He further

checkpoints”

the

ACSO

The court will address each

claim in turn.
1.
The
searches

Fourth
and

investigatory
arrest.
534

U.S.

Discriminatory pattern of traffic stops
Amendment

seizures”
stops

of

by

protects
the

persons

against

Government
or

vehicles

“unreasonable
–

from

to

brief,

traditional

U.S. Const. amend. IV.; see United States v. Arvizu,
266,

273

(2002).

“[T]he

Constitution

prohibits

selective enforcement of the law based on considerations such as
race,” including investigatory stops and arrests protected by
the Fourth Amendment.
(1996).

Whren v. United States, 517 U.S. 806, 813

However, “the constitutional basis for objecting to

intentionally discriminatory application of [such] laws is the
Equal Protection Clause, not the Fourth Amendment.”

Id.

The Government argues that it has a Fourth Amendment claim
independent of its Equal Protection claim because “judges may
still

consider

the

‘programmatic

purpose’

practices” under the Fourth Amendment.

of

law

enforcement

(Doc. 101 at 18.)

The

Government relies in part on Brigham City, Utah v. Stuart, in
which the Supreme Court noted that it had “held in the context
of

programmatic

searches

conducted

without

individualized

suspicion – such as checkpoints to combat drunk driving or drug
29

trafficking

–

that

an

inquiry

sometimes appropriate.”

into

programmatic

purpose

547 U.S. 398, 405 (2006) (emphasis in

original) (citations and internal quotation marks omitted).
Fourth

Circuit

read

is

Stuart

and

other

Supreme

Court

cases

The
to

suggest that “when analyzing a search made as the result of a
routine police procedure, such as the policy of locating weapons
in towed cars . . . , the court should examine the programmatic
purpose of the policy.”
(4th Cir. 2009).
inquire

into

Hunsberger v. Wood, 570 F.3d 546, 554

In Hunsberger, the court specifically did not

programmatic

purpose

procedure” was not at issue.
Individual

traffic

standardized procedures.

because

“a

standardized

Id.
stops

are

not

suspicionless,

They are justified on the basis of

individualized, reasonable suspicion or probable cause, which is
assessed using objective facts known to the officer; an inquiry
into the subjective motivations of the officer conducting the
stop, even if the officer was motivated by ethnicity, is not
warranted.

Whren, 517 U.S. at 813.

Specific individual stops

relied on by the Government as examples of a broader pattern of
discriminatory

law

enforcement

Amendment principles.

are

analyzed

applying

Fourth

To be sure, any lack of a legal basis for

a stop may be evidence of unlawful ethnic targeting under the
Fourteenth Amendment.
challenging

a

pattern

However, to the extent the Government is
of

allegedly
30

discriminatory

individual

traffic stops on the basis of ethnicity, Johnson is correct that
the Equal Protection Clause, not the Fourth Amendment, applies.
See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 56572

(S.D.N.Y.

2013)

(race

jurisprudence,

but

this

extent,

limited

not

matters

Fourth

to

Equal

Amendment

therefore,

Protection

Clause

jurisprudence). 10

Johnson’s

motion

will

To
be

granted.
2.

Checkpoints for general law enforcement purposes

The Government asserts that the ACSO uses checkpoints for
general

law

enforcement

purposes,

which

(Doc. 89 at 39-40; Doc. 101 at 19-21.)

is

unconstitutional.

Johnson denies that the

ACSO’s use of checkpoints is improper but argues that this claim
was not part of the complaint and therefore is not properly
before the court.

(Doc. 96 at 38-40.)

10

Although Melendres v. Arpaio at times appears to consider a stop
based on race as a violation of the Fourth Amendment, the court
clarified that race matters only to the Equal Protection Clause:
To the extent that there was a legitimate, pretextual
traffic basis for the original stop that does not involve
race, it does not matter to Fourth Amendment analysis that
the officer’s underlying decision to make the stop may have
subjectively
been
based
on
considerations
of
race.
Further, to the extent that other factors in combination,
and excluding race as a consideration, were sufficient to
justify reasonable suspicion for the stops, there is no
Fourth Amendment violation.
As discussed below, however,
such motivations do make a difference to the equal
protection analysis.
Melendres v. Arpaio, No. PHX-CV-07-02513-GMS, 2013 WL 2297173, at *66
(D. Ariz. May 24, 2013) (citations omitted).

31

Although the Government refers to deposition testimony and
questions as evidence that the claim was part of its case, “it
is the complaint – not depositions or interrogatories – that
provides ‘fair notice’ to defendants of the allegations against
them.”
420

Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411,

(4th

Cir.

2014)

(affirming

district

court’s

post-trial

ruling that a particular claim was sufficiently pleaded).
complaint

need

not

“use

any

precise

or

magical

The

words”

or

“connect the dots” of its factual allegations in order to assert
a

particular

sufficient

claim.

facts

to

Id.
support

defendant on fair notice.

at

418.

the

claim

It

must

in

simply

order

to

allege
put

the

Id. at 417-20.

Here, the broad language of paragraphs 75 through 77 of the
complaint must be read in the context of the facts that precede
them.

The Government’s second claim for relief re-alleges and

incorporates the complaint’s previous factual allegations (Doc.
1

¶ 73),

regarding

but

at

no

point

does

the

complaint

checkpoints

being

used

improperly

assert

for

facts

general

law

enforcement purposes apart from any alleged Latino targeting.
The

Government

allegations

argues

that

ACSO

that

the

employs

32

complaint

is

checkpoints

“replete
for

with

improper

purposes,” pointing to several paragraphs. 11

(Doc. 101 at 19.)

But the question is not whether the Government alleged the ACSO
used checkpoints improperly.
that

the

ethnicity

ACSO

used

(both

in

vehicles to stop).
ACSO

used

Clearly it alleged numerous times

checkpoints
choosing

improperly

locations

and

on
in

the

basis

choosing

of

which

The question is whether it alleged that the

checkpoints

improperly

for

general

law

purposes – separate from the ethnicity-based claim.

enforcement
It did not.

“Specific facts are not necessary” in a complaint, but the
complaint must at least “‘give the defendant fair notice of what
the .

.

Erickson

.
v.

claim

is

and

the

grounds

Pardus,

551

U.S.

89,

93

upon

which

(2007)

it

rests.’”

(quoting

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Bell
Even

11

At the hearing, the Government highlighted paragraph 30 of its
complaint in support of its position. Paragraph 30 provides a case in
point. It states, in its entirety:
Defendant Johnson likewise directs his deputies to target
predominantly
Latino
neighborhoods
for
increased
enforcement. Defendant Johnson often voices his assumption
that Latinos are responsible for Alamance County’s drug
trade despite evidence that ACSO’s rate of arrests for drug
crimes has declined as the County’s Latino population has
increased.
Defendant Johnson orders checkpoints and other
enforcement activities in predominantly Latino areas under
the pretext of drug interdiction. At a December 2008 staff
meeting Defendant Johnson stated, “We’ve had a big drop in
the Hispanic population, but we still got a lot dealing
dope and we still got a lot of citizens in this country
dealing dope with them.”
(Doc. 1 ¶ 30.)
The entire paragraph, even the sentence mentioning
drug interdiction, is focused on Johnson’s alleged anti-Latino
actions. This paragraph gives Johnson no notice of a claim based on
checkpoints for general law enforcement purposes.

33

viewed

liberally

in

favor

of

the

Government,

the

complaint

simply fails to allege facts that would put Johnson on notice of
such

a

claim,

specificity.

nor

did

it

state

the

claim

itself

with

any

At all times in this dispute, the Government’s

theory has been discriminatory law enforcement against Latinos.
(See, e.g., Doc. 1 ¶ 3 in case 1:11cv507; Doc. 19 at 4 in case
1:11cv507 (“[The Department of Justice’s] investigation centers
on allegations that ACSO has engaged in a pattern or practice of
discriminatory

policing

and

unconstitutional

searches

and

seizures against Latinos.”); Doc. 11-3 at 2 (which is also Doc.
52-1

at

3

in

case

1:11cv507)

(summary

of

findings

in

Government’s 11-page public letter of grievances to the ACSO
begins thus: “Based on our careful review of the evidence, we
have concluded that ACSO engages in a pattern or practice of
discriminatory policing against Latinos.”); 12 Doc. 1 ¶ 1.)
Had the Government not been aware of the alleged behavior
that gave rise to the claim at the time of the complaint but
instead unearthed it in discovery, it could have sought to amend
its complaint.

But it has not done so.

And while this court

should “freely give leave” to amend a complaint (again, relief
the Government has not requested), such leave should be denied
12

The Government’s grievance letter that spawned this lawsuit is
extensive and specific in its charges and relief demanded. Nowhere in
the 11-page document does the Assistant Attorney General address the
claim the Government now seeks to raise.
Rather, all charges relate
to the “ACSO’s practice of targeting Latino drivers via traffic
enforcement and vehicle checkpoints.” (Doc. 11-3 at 9.)

34

if the non-moving party shows undue prejudice.

Fed. R. Civ. P.

15(a)(2); see also Laber v. Harvey, 438 F.3d 404, 426-27 (4th
Cir. 2006).
June

13,

In that regard, Johnson’s counsel stated at the

2014

hearing

that

he

had

no

actual

notice

of

the

Government’s intent to bring this claim until it was revealed in
the Government’s summary judgment briefing and that, if it is
allowed

to

proceed,

he

would

need

to

conduct

further

investigation and discovery in order to defend himself and the
ACSO.
The court concludes, therefore, 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.

See,

e.g.,

City

of

Indianapolis

v.

Edmond, 531 U.S. 32 (2000) (holding that checkpoints for drug
interdiction are prohibited); Texas v. Brown, 460 U.S. 730, 743
(1983) (suggesting in dicta that roadblocks with a pretextual
lawful purpose that are in fact for an unlawful purpose are
prohibited); cf. United States v. Martinez-Fuerte, 428 U.S. 543
(1976)

(holding

that

“reasonably

located”

checkpoints

for

illegal immigrants are allowed); Delaware v. Prouse, 440 U.S.
648,

663

(1979)

(suggesting

in

dicta

that

checkpoints

for

driver’s licenses are allowed); Mich. Dep’t of State Police v.
Sitz,

496

U.S.

444

(1990)

(holding
35

that

checkpoints

for

insobriety
(2004)

are

(holding

specific crime

allowed);
that

Illinois

checkpoints

committed

by

v.

Lidster,

seeking

another

are

540

U.S.

information
allowed).

419

about
And,

a

the

Government has presented evidence on that score sufficient to
create a dispute of material fact.

(See, e.g., Doc. 89-10 at 11

(checkpoint locations selected to target Hispanics), Doc. 89-35
at 6 (checkpoints set up to find illegal drugs).
eighteen

months

of

litigation,

with

discovery

But after
long

since

completed and the scheduled trial term less than two weeks away,
allowing the Government to proceed as to claims of generalized
unlawful checkpoints untethered to the abiding central claim of
this case would unduly prejudice Johnson.

Therefore, Johnson’s

motion will be granted to this extent. 13
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Johnson’s motion for summary
judgment

(Doc.

86)

is

GRANTED

as

to

the

Government’s

Fourth

Amendment claims in the second claim for relief regarding (1)
the pattern of individual traffic stops, to the extent noted
herein,

and

(2)

the

use

of

13

checkpoints

for

general

law

The Government notes that some ACSO deputies testified to setting up
checkpoints to find illegal drugs as part of general law enforcement.
(See, e.g., Doc. 89-62 at 3, Doc. 89-35 at 6.) If this testimony is
to be believed, the Supreme Court has condemned such checkpoints as
unconstitutional.
See City of Indianapolis, 531 U.S. at 41-42
(stating that checkpoints set up “to uncover evidence of general
criminal wrongdoing,” including drug interdiction, are prohibited by
the Fourth Amendment).

36

enforcement
Latinos.

purposes
In

all

unrelated

other

to

any

alleged

respects,

the

parties’

summary judgment (Docs. 86, 88) are DENIED.

targeting

of

motions

for

Johnson’s motion to

strike Dr. Lamberth’s report (Doc. 96 at 25-28) is DENIED.

The

Government’s remaining claims pursuant to § 14141 for violations
of the Fourth and Fourteenth Amendments will proceed to trial.

/s/ Thomas D. Schroeder
United States District Judge
June 20, 2014

37