UNITED STATES OF AMERICA v. JOHNSON
Filing
159
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 08/07/2015. IT IS ORDERED that the claims of the United states be DENIED. The judgment entered for Defendant Sheriff Johnson, and the Complaint 1 be DISMISSED WITH PREJUDICE. Any request for costs must be filed within thirty (30) days. A judgment in conformance with this Order will be entered simultaneously. (Coyne, Michelle)
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
TABLE OF CONTENTS
I.
FINDINGS OF FACT...........................................3
A.
Alamance County.......................................3
1.
2.
B.
Population and Demographics of Alamance County...3
Law Enforcement Challenges in Alamance County....4
ACSO and Sheriff Johnson..............................9
1.
The Introduction and Implementation of ICE’s
287(g) Program in Alamance County...............10
a.
287(g) Program’s TFO.......................14
b.
Termination of TFO Position................21
c.
Gun Permit Investigations..................23
d.
ACSO’s Processing and Booking Procedures...25
e.
Fairness Alamance..........................32
2.
ACSO Arrest Policy and Practice.................36
3.
Orders to Target Hispanics......................41
4.
ACSO Checkpoint Policy and Implementation.......44
5.
ACSO’s Stops and Searches.......................54
a.
Particular Stops...........................54
b.
Statistical Evidence.......................58
i.
Dr. John Lamberth.....................58
ii.
Dr. John MacDonald....................67
(a)
Post-Stop Outcome Study..........70
(b)
“Hit-Rate” Study.................72
iii. Officer Mark Dockery and ACSO Data on
Searches Not Incident to Arrest.......75
iv.
Dr. David Banks.......................78
ii
(a)
(b)
ASCSO’s Checkpoint Stops.........82
(c)
ACSO’s Checkpoint Arrests........86
(d)
ACSO’s Traffic Stops.............87
(e)
C.
ACSO’s Checkpoint Siting.........80
ACSO’s Citations.................89
Evidence of Racial and Ethnic Bias Within ACSO.......90
1.
2.
D.
Racial and Ethnic Epithets and Jokes............93
Derogatory Emails...............................96
ACSO’s Supervision and Discipline of Its Officers...102
1.
Supervision....................................103
a.
ACSO’s Complaint Policy...................103
b.
ACSO’s Review of Stops, Arrest, and
Searches..................................105
c.
ACSO’s Traffic Stop Data Reporting........109
d.
ACSO’s Training of Its Officers...........110
e.
ACSO’s Harassment Prevention Policy.......112
f.
Implementation of Email and Video
Filtering Software........................112
2.
3.
II.
Discipline.....................................113
Margo Frasier..................................116
CONCLUSIONS OF LAW.......................................121
A.
Motion to Exclude Dr. Lamberth’s Testimony..........121
1.
Admissibility..................................123
a.
Testability...............................124
b.
Peer Review...............................128
c.
Error Rates...............................129
iii
d.
2.
B.
General Acceptance........................134
Credibility....................................139
Motion to Exclude Dr. Banks’ Testimony..............142
1.
Dr. Banks’ Qualifications......................142
2.
The Admissibility of Dr. Banks’ Testimony......145
a.
Dr. Banks’ Study of ACSO Traffic Stops....146
b.
Dr. Banks’ Analysis of ACSO Checkpoint
Stops.....................................148
c.
Dr. Banks’ Study of ACSO Checkpoint
Arrests...................................150
d.
Dr. Banks’ Permutation Test...............151
C.
Motion for Adverse Inference........................153
D.
Motion to Exclude Kenneth Evans’ Testimony..........160
E.
42 U.S.C. § 14141 Claims............................165
1.
Fourteenth Amendment Claim.....................171
a.
Express Classification....................173
b.
Facially Neutral Classification...........182
i.
Traffic Stops........................190
ii.
Checkpoint Placement and Stops.......192
iii. Post-Stop Outcomes...................199
iv.
v.
F.
287(g) Practices.....................219
vi.
2.
Searches After Stops.................211
ACSO’s Culture, Supervision, and
Discipline...........................225
Fourth Amendment Claim.........................227
Statute of Limitations..............................246
III. CONCLUSION...............................................247
iv
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
The
United
States
of
America
(the
“Government”)
alleges
that, from at least January 2007 to the present, Defendant Terry
S.
Johnson,
County,
in
North
his
official
Carolina,
discriminatory
law
capacity
engaged
in
enforcement
a
as
Sheriff
pattern
activities
or
of
Alamance
practice
directed
of
against
Hispanics, 1 in violation of the Fourth and Fourteenth Amendments
to the United States Constitution.
The Government brings this
action via Section 210401 of the Violent Crime Control and Law
Enforcement
Principally,
Act
of
the
1994,
42
Government
U.S.C.
charges
§ 14141.
that
(Doc.
Alamance
1.)
County
Sheriff’s Office (“ACSO”) disproportionately subjects Hispanics
to unreasonable searches, arrests them for minor infractions (in
lieu of issuing warnings or citations), targets them at vehicle
checkpoints
uses
located
in
ethnically-offensive
predominantly
epithets
to
Hispanic
neighborhoods,
refer
Hispanics
to
and
otherwise tolerates activities of deputies that evidence antiHispanic
bias,
automatically
and
selectively
refers
Hispanic
arrestees to U.S. Immigration and Customs Enforcement (“ICE”)
investigators
deficient
1
for
policies,
deportation,
training,
and
and
otherwise
oversight
that
engages
in
facilitates
The Government refers to Latinos and Hispanics interchangeably.
discriminatory enforcement.
wrongdoing
and
maintains
(Id.)
that
Sheriff Johnson denies any
ACSO’s
law
enforcement
is
legitimate and lawful.
The
parties
judgment,
previously
the
which
filed
considered
court
cross-motions
and,
argument, granted in part and denied in part.
for
summary
following
oral
(Doc. 118.)
A bench trial on the merits was conducted from August 12
through 22, 2014.
witnesses
and
The Government presented twenty-nine fact
three
expert
witnesses,
and
Sheriff
presented sixteen fact witnesses and one expert witness.
Johnson
At the
close of the Government’s evidence, Sheriff Johnson moved for
judgment
pursuant
to
Federal
Rule
of
Civil
which the court took under advisement.
Procedure
52(c),
Following trial, the
parties sought to file proposed findings of fact and conclusions
of law and requested additional time to do so.
submitted them.
(Docs. 157, 158.)
They have now
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
witnesses,
and
the
the
evidence,
including
inferences
that
the
the
credibility
court
has
reasonable to draw therefrom — and conclusions of law.
of
found
To the
extent any factual statement is contained in the conclusions of
law, it is deemed a finding of fact as well.
2
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.
I.
FINDINGS OF FACT
A.
Alamance County
1.
Population and Demographics of Alamance County
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,
qfd/states/37/37001.html
http://quickfacts.census.gov/
(last
visited
June
29,
2015). 2
The
Government has consistently contended, and Sheriff Johnson does
not dispute, that Alamance County’s population, and particularly
its Hispanic population, has risen sharply since 1990.
Doc. 1 ¶ 12; Doc. 158 at 9.)
(See
As of the 1990 U.S. Census,
Alamance County was home to about 108,000 residents, with the
County’s Hispanic population totaling fewer than 800 — or less
2
Under Federal Rule of Evidence 201, the court may take judicial
notice of U.S. Census data.
See Hollinger v. Home State Mut. Ins.
Co., 654 F.3d 564, 571–72 (5th Cir. 2011) (“United States census data
is an appropriate and frequent subject of judicial notice.”); United
States v. Gregory, 871 F.2d 1239, 1245 (4th Cir. 1989) (taking
judicial notice of population figures); see also United States v.
Cecil, 836 F.2d 1431, 1452 (4th Cir. 1988) (agreeing that “courts may
take judicial notice of official governmental reports and statistics”
under Rule 902(5) of the Federal Rules of Evidence).
3
than 1% of the total population.
See 1990 Census of Population
and Housing Public Law 94-171 Data (Official) Age by Race and
Hispanic
Origin,
U.S.
Census
Bureau,
http://censtats.census.gov/pl94/pl94.shtml
(displaying
population totals for North Carolina by county) (last visited
June 29, 2015).
has
over
expanding
total
Today, just over twenty years later, the County
150,000
to
residents,
approximately
population.
17,700
&
—
Hispanic
comprising
population
11.8%
of
the
QuickFacts:
U.S.
Census
Bureau,
http://quickfacts.census.gov/qfd/states/37/37001.html
(present-
North
State
the
County
County,
See
with
Carolina,
Alamance
ing figures on the demographic layout of Alamance County) (last
visited June 29, 2015).
2.
Law Enforcement Challenges in Alamance County 3
The Sheriff contends that the County’s recent growth has
brought
with
it
increasing
crime,
including
a
serious
trafficking problem with associated drug-related violence.
particular,
the
Sheriff
presented
uncontested
evidence
drug
In
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.
3
(Doc. 152 at 109,
Any challenge to law enforcement conduct must be examined in the
context of legitimate law enforcement concerns, keeping in mind that,
while highly relevant, such concerns cannot excuse or justify
unconstitutional policing.
4
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.)
criminal
bringing
enforcement
the
division,
present
a
action,
sister
has
Throughout
the
time
period
division
of
specifically
Alamance County as a national concern.
8.)
The DOJ’s
at
the
one
identified
(Def. Trial Ex. 30 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
North
at
100.)
Carolina
come
According
to
“predominately
one
from
ICE
agent,
Mexico”
drugs
and
“mainly” by Mexican nationals in North Carolina.
24.)
are
in
received
(Doc. 153 at
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.
152 at 101.)
(Doc.
Proceeds from the DTOs’ drug transactions are
returned to drug trafficking operators in Mexico.
5
(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.
The
(Id. at 115–16.)
increased
presence
of
Mexican
DTO
cell
heads
in
Alamance County has brought an increase in drugs, drug money,
guns, and violence.
DTO members often keep stash houses to
store drugs, money, and guns.
Serniak,
the
DTOs
keep
a
(Id. at 101.)
“great
number”
According to Agent
of
stash
houses
in
Alamance County and often operate within the County’s mobile
home parks.
(Id. at 101, 104; see also Doc. 154 at 106–07.)
For example, a recent DEA raid of a mobile home park in Alamance
County yielded a seizure of hundreds of thousands of dollars in
drug
money.
(Doc.
152
at
104;
see
also
(showing money seized from a stash house).)
6
Def.
Trial
Ex.
4
DTOs have become so
sophisticated
and
entrenched
that
they
local businesses within the County.
launder
money
through
(Doc. 152 at 105.)
The DEA has conducted a number of raids in Alamance County,
which have resulted in seizures of drugs and weapons connected
to Mexican DTOs. 4
For example, the DEA discovered approximately
12 kilograms of cocaine destined for the D.C./Baltimore area in
2005,
39
kilograms
of
cocaine
in
2009,
heroin from the Green Level community. 5
and
one
kilogram
of
(Id. at 101–03, 109–10.)
Drug-related weapons seizures are common, and their prevalence
has increased in recent years.
(Id. at 104–05.)
The DEA has
seized high-caliber handguns, rifles, and assault rifles.
(Id.;
Def.
money
Trial
Ex.
4.)
And,
with
the
confluence
of
laundering, drugs, and weapons, the DEA has investigated drugrelated homicides in the County.
Ex. 4.)
over
(Doc. 152 at 111; Def. Trial
Overall, the DEA’s operations have netted seizures of
100
firearms,
millions
kilograms of cocaine.
United
States
of
dollars,
and
hundreds
of
(Def. Trial Ex. 4.)
Interstates
40
and
85
join
as
a
common
highway in Alamance County, dissecting the County horizontally
at its midsection.
the highways
and
The town of Green Level lies just north of
offers
an
example
4
of
Despite these operations, Agent Serniak
observed racial or ethnic profiling by ACSO.
5
the
collateral
testified that he
(Doc. 152 at 127.)
damage
never
The street value of a kilogram of cocaine is about $30,000 dollars,
and a kilogram of heroin is about $60,000. (Def. Trial Ex. 4.)
7
resulting from the growing drug trafficking in the County.
Green
Level
community
faced,
and
continues
to
face,
The
“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
activities was [sic] in the street.”
Green
Level’s
mobile
home
your
home
because
drug
(Id. at 63.)
communities,
especially
the
Seamsters and Otter Creek mobile home parks, have been frequent
sites of significant illegal drug and criminal activity.
at
65,
67,
71,
75.)
The
Otter
Creek
mobile
home
suffered murders, drug activity, and kidnappings.
The
owner
of
Seamsters
has
sought
law
Starting
African
in
American
2002,
—
Green
Level’s
contracted
with
has
help
in
(Id. at 72.)
council
ACSO
park
(Id. at 75.)
enforcement
combatting drug and gang activity in his park.
(Id.
for
members
placement
—
all
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
(Id. at 68–70.)
8
used
for
criminal
activity.
By 2010, Alamance County’s rising drug trade led the DOJ
and
the
DEA
Trafficking
to
designate
Area,”
a
the
County
a
classification
“High
Intensity
reserved
for
Drug
counties
representing “a high threat of drug trafficking, of violence.”
(Id. at 106, 113, 115.)
The County was one of only seven in the
State to be so designated (id. at 115), and it retained the
designation at the time of trial.
(Id.)
According to Agent
Serniak, who participated in many of the DEA’s activities in the
County,
Mexican
residents.
B.
DTOs
remain
a
“danger”
to
Alamance
County
(Id. at 113.)
ACSO and Sheriff Johnson
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.
VII,
§ 2;
N.C.
1:05CV00062,
Gen.
2007
WL
Stat.
§ 162-1;
676687,
at
*3
See N.C. Const., Art.
Cranford
(M.D.N.C.
v.
Frick,
Feb.
28,
No.
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,
Smith,
114
not
F.
employed
Supp.
2d
by
437,
the
446
9
county.”
(quoting
(W.D.N.C.
2000))
Little
v.
(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.,
450
S.E.2d
747,
749
(N.C.
Ct.
App.
1994)
employee of the sheriff, not the county.”).
(“A
deputy
is
an
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
implements both individually and through his officers.
154 at 89; N.C. Gen. Stat. § 162-24.)
he
(Doc.
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.
various
ways
in
which
The Government’s evidence as to the
this
was
allegedly
done
is
addressed
below.
1.
The Introduction and Implementation of ICE’s
287(g) Program in Alamance County
A principal feature of the Government’s case rests on its
claim
that
ACSO
sought
in
out
a
and
used
discriminatory
federally-granted
immigration
authority
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
10
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
employees.
Known
enforcement
as
authority
“287(g)
programs,”
to
certain
these
State
arrangements
permit state and local law enforcement officers to investigate,
apprehend,
and
1357(g)(1).
287(g)
detain
To
program,
Mecklenburg
aliens
investigate
Sheriff
County
in
the
U.S.
See
8
U.S.C.
possibility
Johnson
(Charlotte),
the
of
employing
contacted
the
Sheriff
North
Carolina,
who
had
a
of
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 spoke
with ICE officers.
(Id.)
and
of
at
the
urging
an
Satisfied with what he had learned,
Alamance
County
Commissioner,
the
Sheriff applied for participation in the program through ICE in
Washington, D.C.; by January 2007, ACSO entered into a 287(g)
agreement — known as the Memorandum of Agreement (“MOA”) — with
ICE and Alamance County.
(Id.)
11
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
detainees
the
and
MOA,
ACSO
coordinate
immigration violations.
officers
with
could
federal
better
agents
(Doc. 149 at 127–28.)
who
identify
enforced
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.)
within
the
officers.
34.)
ACDC
to
ICE also stationed its own agents
supervise
those
287(g)-certified
ACSO
(Id. at 138–39; Doc. 152 at 157–58; Doc. 154 at 33–
While anyone arrested by ACSO and jailed could be turned
over to ICE within the ACDC, who could determine whether they
were
in
detention
the
country
center
for
illegally,
persons
12
the
ICE
ACDC
also
and
eleven
served
other
as
a
law
enforcement
agencies
arrested
surrounding counties.
(independently
of
ACSO)
in
(Doc. 152 at 164; Doc. 154 at 23–24.)
the
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.
at
164
(“[T]he
numbers. . . .
actual
287(g)
processing[s]
were
(Doc. 152
not
large
[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.
166.)
Thus,
while
the
Government
at
trial
(Id. at
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.
found it to be “an exemplary unit.”
(Id. at 148–50.)
(Id. at 149.)
ICE
In fact,
after one review, ICE used ACSO’s information as an exemplar to
provide to ICE’s other 287(g) units.
review
from
ICE
concluded,
“The
(Id. at 149–50.)
287(g)
program
in
A 2011
Alamance
County is adhering to the priorities and obligations set forth
13
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.)
a.
287(g) Program’s TFO
Early in Alamance County’s 287(g) program in 2007, Gloria
Fichou,
Special
retired)
in
Agent-in-charge
ICE’s
regional
of
Homeland
office
over
Security
Alamance
(now
County,
contacted Sheriff Johnson because the federal government hoped
to designate an ACSO officer as a Task Force Officer (“TFO”) for
ICE’s Homeland Security Investigations.
Doc. 154 at 80.)
(Doc. 153 at 17–18;
A TFO is cloaked with 287(g) authority to
perform investigations in the field, as opposed to simply in the
jail.
(Doc. 149 at 129.)
Randleman
to
serve
as
the
Sheriff Johnson selected Deputy Jeff
TFO,
experience with investigations.
based
on
Deputy
(Doc. 154 at 80.)
Randleman’s
At the time
of Deputy Randleman’s selection in 2007, Fichou told Sheriff
Johnson that Deputy Randleman could serve as a 287(g) detention
officer in the ACDC and as a TFO under her supervision.
80–81; Doc. 153 at 18–22.)
14
(Id. at
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.
ICE training).)
special
well.
TFO
agent
(Doc. 149 at 171; Doc. 153 at 20 (8 weeks of
Fichou supervised Deputy Randleman, and an ICE
would
sometimes
(Doc. 153 at 20.)
required
Fichou’s
work
with
Deputy
Randleman
as
Deputy Randleman’s investigations as a
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.
Randleman
(Doc.
would
149
at
receive
171.)
work
Thus,
from
both
while
a
Fichou
TFO,
and
Deputy
Sheriff
Johnson, and he would self-initiate investigations, as he had
before.
Sheriff
(Id. at 172–73, 177.)
Johnson
were
reported
Any cases assigned to him by
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
TFO. 6
(Id. at 177–78.)
Fichou acknowledged that she was aware
6
The Government cites Deputy Randleman’s statement that the only
persons Sheriff Johnson or then-Deputy Britt requested that he
investigate while acting as a TFO were Hispanic. (Doc. 149 at 208.)
This statement has little capacity for persuasiveness.
There is no
indication how many times (if any) such requests were made apart from
the limited specific ones detailed here, and Deputy Randleman clearly
15
(Doc. 153 at 20–21.) 7
of all 287(g) matters on which he worked.
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
members.
287(g)
officers
with
a
list
of
certified
(Doc. 147 at 75; Doc. 151 at 124, 139–41.)
gang
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 the roundup operations.
149 at 173–75.)
(Doc.
The majority of the gang members involved in
these ICE operations were Hispanic, but Asian, South African,
spent more of his time working for ICE.
Moreover, for the reasons
explained below, none of the specific investigations ordered by ACSO
provided at trial (which may be all of the Hispanic investigations
performed by Deputy Randleman) evidences an intent to target
Hispanics.
7
Deputy Randleman believed that Fichou was aware of his ACSO matters,
too.
(Doc. 149 at 178.)
But any significant knowledge appears
doubtful, as oversight for those matters was the responsibility of
Sheriff Johnson.
16
and South American gang members were also involved. 8
(Id. at
136, 174.)
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
Martinez.
involving
(Id. at 179.)
employee
reported
Alamance
County
to
an
named
Marxavi
Angel-
The case arose when an Alamance County
ACSO
library
individual
that
was
a
Hispanic
receiving
employee
maternity
at
the
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.
149
at
federal
179–80;
Doc.
154
prosecutors,
who
Social Security fraud.
The
Government
at
87.)
later
The
charged
case
was
(Doc.
referred
Angel-Martinez
to
with
(Doc. 149 at 201.)
also
points
8
to
an
instance
when
Deputy
In addition to gang roundups, ICE implemented (and continues to
implement) within Alamance County a yearly program called “Operation
Community Shield.” (Doc. 153 at 22–24.) This program requires ICE to
“reach out” to local law enforcement agencies to retrieve a list of
identified gang members in the community. (Id. at 23.) The program’s
ultimate goal is “to identify, arrest, and remove undocumented
nationals deemed to be gang members in the United States.”
(Id. at
22–23.)
17
Randleman assisted in an identity fraud investigation requested
by Alamance County Manager David Smith.
154 at 26–28.)
verify
the
Smith asked ACSO Chief Deputy Timothy Britt to
Social
employees.
(Id. at 181–83; Doc.
Security
numbers
(Doc. 154 at 27.)
of
several
newly-hired
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
investigation
of
a
also
cites
complaint
of
Deputy
identity
Alamance County resident Kay Oliver.
Randleman’s
theft
TFO
raised
(Id. at 183.)
by
Oliver
reported to Sheriff Johnson that he was the victim of identity
theft, and the Sheriff instructed Deputy Randleman to “look into
it.”
Ariano
(Id. at 184.)
Vazquez
in
Deputy Randleman ascertained that Juan
Weaverville,
North
using Oliver’s Social Security number.
Carolina,
was
illegally
(Id. at 183–85.)
Deputy
Randleman secured a warrant, arrested Vazquez in Buncombe County
(approximately
200
County
charged.
to
be
miles
characterizes
Deputy
measure
reflects
that
stringently
against
away),
(Id.
and
at
Randleman’s
an
18
him
185–86.)
efforts
intent
Hispanics,
brought
to
noting
as
The
an
enforce
that
to
Alamance
Government
extraordinary
the
law
Oliver
more
had
a
reputation in the community of being anti-immigrant.
(Id. at
189–90.)
Sheriff
Deputy
Randleman
testified,
however,
that
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.”
86, 203–04.)
prosecute
although
Ultimately, the U.S. Attorney’s Office declined to
the
the
case
(for
reasons
Government
never
never
offered
Vazquez’s arrest lacked probable cause.
The
case
attorney.
(Id. at 185–
was
prosecuted
by
the
explained
any
at
trial),
indication
that
(Id. at 190–91; 204.)
Alamance
County
district
(Doc. 149 at 205.)
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.)
Alamance
County
Commissioner
Ann
The matter began when
Vaughan
came
to
Sheriff
Johnson’s office, “raising Cain” following an accident.
154 at 76.)
(Doc.
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
19
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.
Vaughan was upset.
(Id.)
She showed Sheriff Johnson her accident
report and demanded that he do something.
Sheriff
Johnson
asked
if
the
driver
(Id. at 168–69.)
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.
92.)
(Doc. 149 at 191–
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
within
traffic
the
citations
jurisdiction
of
within
the
the
City
Burlington
of
Burlington
Police
lay
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
20
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
persuaded
that,
adversary
but
for
of
the
Vaughn’s
Sheriff.
persistence
The
and
court
will,
is
the
Sheriff never would have gotten involved in the inquiry.
b.
Termination of TFO Position
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
Office
of
been
“getting
conflicting
Investigations”
Randleman as a TFO.
about
information
ICE’s
ability
(Doc. 152 at 160.)
from
to
use
ICE[’s]
Deputy
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
21
had
never
questioned
Deputy
Randleman’s authority to operate as a TFO.
(Id. at 21–22.)
ICE
eventually interpreted the MOA not to authorize Deputy Randleman
to be a TFO within ICE’s Homeland Security Investigations (id.
at 21–22), so ICE withdrew Deputy Randleman’s TFO authority, and
he promptly discontinued any further work as a TFO, returning to
his position as a 287(g) detention officer in the ACDC.
(Doc.
149 at 172, 175.)
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
approached
the
credibly
Sheriff
at
trial
about
the
that
it
was
possibility
she
who
had
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.
purpose.
Nobody did this on
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.)
22
c.
Under
North
Gun Permit Investigations
Carolina
law,
county
sheriffs’
responsibility for issuing gun permits.
§ 14-404.
offices
bear
See N.C. Gen. Stat.
The law specifically requires that county sheriffs
verify that “it is not a violation of State or federal law for
the
applicant
handgun.”
Id. 9
to
purchase,
transfer,
receive,
or
possess
a
In accordance with the law, a clerk at ACSO
handles background checks for gun permits with subsequent review
by ACSO captains and a major.
(Doc. 154 at 38–39.)
Former
Chief Deputy Morris McPherson oversaw this process at ACSO until
he retired in 2009. 10
(Id. at 41.)
Through the duration of the 287(g) program, ACSO used its
access
to
immigration
databases
applying for gun permits.
to
investigate
(Doc. 149 at 132–33.)
individuals
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
violation
is
a
of
federal
law
for
aliens
illegally
or
unlawfully in the United States to possess a firearm, see 18
9
N.C. Gen. Stat. § 14-404 was amended several times during the period
of inquiry for this case and has also been amended since the
Government initiated its lawsuit.
Neither party, however, contends
that any amendment to the statute affects the court’s analysis.
10
Chief Deputy McPherson died in 2012.
23
(Doc. 154 at 41.)
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
authority
ACSO
was
officers
rescinded)
(other
for
gun
than
by
a
TFO
application
before
checks
such
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),
yet Lieutenant Denham’s statement is still credible because he
testified
supervisor
that
—
a
he
stopped
male
—
the
raised
checks
a
in
2011,
concern.
once
(Doc.
149
his
ICE
at
133
(“[T]he supervisor over deportation and detention for ICE, come
to me, and he was concerned that this may be a problem, and he
decided that we need to stop.” (emphasis added)), 147, 151.)
Sheriff
Johnson
was
never
aware
that
ACSO
used
the
287(g)
program to carry out ACSO’s statutory obligation to investigate
gun permits.
(Doc. 154 at 88.)
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
24
their
obligation
aliens.
to
avoid
issuing
gun
permits
to
ineligible
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.
the
officers
referring
the
names
Although the majors were
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.
d.
The
booking
ACSO’s Processing and Booking Procedures
Government
procedures
immigration
contends
to
enforcement”
that
target
after
ACSO
changed
Hispanics
entering
its
“for
into
(Doc. 1 ¶¶ 47–51; Doc. 158 at 65–66, 132.)
the
arrestee
heightened
287(g)
MOA.
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.
The
Government
relies
(Doc. 158 at 65, 132.)
mainly
25
on
the
testimony
of
North
Carolina
132.)
Magistrate
Susan
Wortinger.
(Id.
at
61–62,
65–66,
Magistrate Wortinger has served 12 years in her position,
having
previously
been
(Doc. 149 at 155–56.)
employed
by
ACSO
from
1996
Her office is in the ACDC.
to
2002.
(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.
149 at 158; id. at 126, 128; Doc. 154 at 157.)
(Doc.
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.
158
at
132.)
The
persuasive
evidence
at
trial,
(Doc.
however,
conflicts with this account of ACSO’s use of the 287(g) program.
Sheriff
implementation
Johnson
of
the
changed
287(g)
ACSO’s
procedures
program.
26
North
well
before
Carolina
law
permits law enforcement to photograph and fingerprint arrestees,
whether or not they are later committed to a jail, unless they
are
only
charged
the
certain
lower
level
motor
N.C. Gen. Stat. § 15A-502(a). 11
misdemeanors.
with
with
law
and
several
years
before
vehicle
In accordance
implementation
of
the
287(g) program, Sheriff Johnson instituted a policy requiring
officers
to
misdemeanor
fingerprint
arrestees,
and
photograph
including
those
felony
who
have
as
well
as
no
driver’s
license and cannot be identified, irrespective of ethnicity or
race.
(Doc. 154 at 58–59; see also Doc. 147 at 33 (Perry —
called
by
the
Government
—
testifying
that
Sheriff
Johnson
changed the policy a few years before the 287(g) program was
implemented).) 12
The
Sheriff
explained
that
he
did
this
to
remedy a developing problem:
[T]he reason for that was that we were having people
arrested under different names; and when I come in the
office, we had an overcrowding in the old jail because
our new jail had not been finished.
And when I went
11
Even when charging those lower level motor vehicle misdemeanors,
North Carolina law enforcement may still photograph a person at the
scene where cited or, if arrested, at the jail if that person fails to
produce a valid driver’s license and the officer has reasonable
suspicion concerning his or her true identity. N.C. Gen. Stat. § 15A502(b).
12
ACSO Deputy Steven Perry testified that in the mid-2000s “we were
told to start — anybody we brought in on an arrest, we had to
fingerprint for any charge, misdemeanor or felony” and not just for
felonies as in the past. (Doc. 147 at 26.) The court does not read
this summary description of the new policy to necessarily contravene
the limitations of N.C. Gen. Stat. § 15A-502.
27
down to look at the records, I was seeing people’s
same picture but under different names, and also
people were not showing up for court when they were
arrested or given a citation.
(Doc.
154
Carolina
at
law,
58.)
The
enabled
new
ACSO
procedure,
to
properly
permitted
identify
by
North
all
persons
how
Sheriff
arrested.
The
evidence
at
trial
was
unclear
as
to
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.
completed
citizen.
“in
the
(Doc.
prebooking
before the magistrate.
152
at
138.)
area”
where
This
the
process
arrestee
was
went
(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
28
property sheets.
52.)
If
an
persuasive
(Doc. 152 at 138–40; see also Def. Trial Ex.
arrestee
evidence
could
that
he
meet
or
she
bond,
however,
might
be
able
there
to
was
leave
without being subject to 287(g) questioning. 13
The Government’s complaint further alleged that arrestees
are
referred
for
287(g)
questioning
based
on
ACSO
officers’
assumptions about nationality or ethnicity and thus that ACSO
targets Hispanics for immigration questioning.
50–51.)
its
(Doc. 1 ¶¶ 48,
To support this allegation, the Government relies on
leading
question
to
Major
Alan
Miles,
who
agreed
that,
during the 287(g) program, “it was important to [him] to make
sure that people who appeared to be of foreign descent were
booked into the jail.”
(Doc. 149 at 214.)
This was the sole
statement regarding the misuse of the 287(g) program within the
ACDC, and there is no other evidence on record to support it.
13
Sergeant Dan Cubino, a Hispanic officer who worked in the ACDC
during the entire 287(g) program and whom the court finds highly
credible, testified that, if an arrestee made bond, the individual did
not enter the booking area and thus presumably would not be subject to
287(g) questioning. (Doc. 152 at 138-40.) Others testified, though,
that arrestees subject to fingerprinting and photographing at least
had to enter the booking area, so that detention officers could
fingerprint and photograph them.
(Doc. 147 at 43 (Evans explaining
that detention officers would fingerprint and photograph arrestees but
making no mention as to whether they would also then be subject to
287(g) questioning); Doc. 149 at 160 (Magistrate Wortinger testifying
that “[i]f [an arrestee] had the money for the fine or the bond, they
still had to go into the jail”); Doc. 154 at 22–23 (Chief Deputy Britt
stating that detention took arrestees’ photographs and fingerprints so
that ACSO could turn officers “back out on the street”).)
Neither
party satisfactorily addressed whether, after fingerprinting and
photographing, an arrestee would likely be subject to 287(g)
questioning despite meeting bond. (See Def. Ex. 53.)
29
Even taking Major Miles’ response at face value, there is no
evidence that he or other detention officers, who were stationed
in the ACDC, could control whether an arrestee was booked into
the jail.
Moreover, there is no evidence as to how many (or few)
Hispanics
arrested
subjected
to
287(g)
by
ACSO
were
booked
questioning.
into
Certainly,
the
the
ACDC
and
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,
[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, and Alamance County jail was actually
housing ICE detainees, and the bulk of the numbers at
Alamance County jail were not 287(g) arrests from
Alamance County.
They were, in fact, people who had
30
been arrested from ICE officers at other 287(g)
locations, and we housed those individuals at the
Alamance County jail.
(Doc.
152
at
164.)
Chief
Deputy
Britt
added
that
eleven
“contributing” State law enforcement agencies also used ACSO’s
facilities for booking.
138–40
(Sergeant
jurisdiction,
an
Dan
(Doc. 154 at 24; see also Doc. 152 at
Cubino
arrestee
testifying
was
taken
that,
before
no
the
matter
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) program, she saw Officer Troy Anthony on
one occasion with a “stack” of alien registration cards and U.S.
passports.
(Doc. 149 at 163–64.)
them as his “collection.”
saw
one
of
Hispanic.
forged
and
supervisor,
the
(Id.)
Officer Anthony referred to
(Id. at 164.)
documents,
which
Magistrate Wortinger
appeared
to
belong
to
a
She did not know whether the documents were
reported
Brandon
her
observation
Wilkerson,
yet
she
to
Officer
never
Anthony’s
followed
up
to
determine what, if anything, became of it. (Id. at 164–65, 16631
67.)
She concedes that she is unaware of ACSO’s policy for
taking
custody
actually
did
of
forged
with
investigations.
instruments
forgeries
(Id.
at
they
166.)
or
came
what
across
Although
the
deputies
during
Officer
their
Anthony
“regularly” came before her for some period of time, she never
found that any of his arrests lacked probable cause.
(Id. at
167.)
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.
court
credits
Magistrate
(Doc. 152 at 85–86.)
Wortinger’s
testimony.
The
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. 14
(Id.; Doc. 154 at 77–78.)
e.
Fairness Alamance
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.
143–44.)
Members
attended
Alamance
County
(Doc. 151 at
Commissioners’
meetings, held their own meetings, and organized a candlelight
14
The Government does not tie this event to any claim in the case.
(See Doc. 158 at 60–61 (referring to testimony in Findings of Fact).)
32
vigil in support of their views.
In
response
to
the
(Id. at 148–50.)
group’s
expressed
concerns,
Sheriff
Johnson invited its members to the ACDC in 2008, provided a tour
of
the
facility,
members’
outlined
questions.
(Id.
the
287(g)
at
program,
151.)
In
and
addressed
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
presentation,
to
North
Sheriff
Carolina’s
Johnson
SBI.
invited
(Id.)
citizens
to
In
his
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
University, took the Sheriff up on his invitation.
153.)
at
Elon
(Id. at 142,
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.
155.)
(Id. at
The Sheriff incorrectly responded that he did not have
the forms and that they were in Raleigh.
Ultimately,
contained
Professor
four
times
Roselle
as
learned
many
33
(Id. at 154–55.)
that
citations
as
the
SBI’s
traffic
data
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 to be inconsistencies in the numbers.
(Id. at 159.)
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 trafficstop
data.
(Id.)
After
these
changes,
requests for corrected data went unanswered.
Professor
Roselle’s
(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. 15
(Id. at 161–62.)
ACSO referred her to ICE for access to those records.
162.)
(Id. at
Undeterred, during a March 2009 County Commissioners’
15
There is no record of a federal FOIA request or North Carolina
public records request under N.C. Gen. Stat. § 132-1.
34
meeting, Professor Roselle again requested the records — this
time publicly — from the Sheriff, who was in attendance.
at 163–64.)
up.
(Id.
And after the meeting, she approached him to follow
(Id. at 164.)
He explained that, under the MOA with ICE,
he lacked the authority to release the records, so she needed to
request them from the federal government — specifically ICE.16
(Doc. 154 at 64.)
At some time during his discussion with her,
Sheriff Johnson placed his hand on Professor Roselle’s shoulder;
this caused her to bristle, and she became quite upset.
Sheriff
Johnson
reacted
by
raising his hands in the air.
saying
he
was
“done”
(Id.)
with
her,
(Doc. 151 at 165; Doc. 154 at 64–
65.)
The Government offers this encounter as evidence of antiimmigrant animus by the Sheriff.
situation.
motivated
This is an over-read of the
Professor Roselle presented at trial as a deeplyadvocate
who
was
personally
opposed
to
what
she
perceived as anti-immigrant efforts by ACSO, distrusted Sheriff
Johnson, and was zealous in her persistence. 17
16
Professor Roselle conceded at trial that she never pursued her
requests with ICE. (Doc. 151 at 176–78.)
17
Professor Roselle testified to several situations where she believed
ACSO surveilled her and tapped her phone, although no proof of such
was ever presented.
She ultimately moved to a neighboring county
solely because of her dislike of ACSO. (Doc. 151 at 167–73.)
35
2.
The
ACSO Arrest Policy and Practice
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.)
proof
on
this
point
relies
on
several
The Government’s
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
traffic violations.
to
arrest
Hispanics
stopped
for
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
[they]
that
stopped
one
if
they
for
a
“went
traffic
to
an
Hispanic’s
violation
or
house
if
it
was
or
a
violation, that [they] were to bring them to jail and not write
a citation.”
instruction
(Doc. 147 at 45.)
on
to
officers
Evans said he did not pass the
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 monthly staff meeting
Sheriff
Johnson
told
them
that
Hispanics
without
a
driver’s
license should be arrested and brought to jail, where they would
be run through the 287(g) program.
36
(Id. at 151–54.)
Officer
Lloyd said that the Sheriff had a similar conversation with him
separately
and
explained
that
doing
so
would
allow
Hispanic
detainees to be run through the 287(g) program to be deported,
allowing the County to receive money for the federal detention.
(Id. at 151–52.)
discussion
occurred
Officer Lloyd was unable to say when such
but
insisted
that
he
never
discriminated
against any Hispanic and knew of no ACSO officer who ever had.
(Id. at 152–54, 168.)
He also conceded on cross-examination
that he understood (and his personal practice was) that if he
could not identify any suspect, he would arrest him or her so
they could be processed and their identity determined.
170.)
(Id. at
Finally, Brenda Cole — a former ACSO officer — testified
that she heard Sheriff Johnson give the same instruction (to
arrest Hispanics) at a monthly staff meeting in 2007 or 2008,
but could offer no other context for the statement.
at 5, 7.)
(Doc. 151
Like the others, Cole insisted that she never carried
out the instruction.
(Id. at 6.) 18
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
18
All three witnesses started at ACSO before Sheriff Johnson became
sheriff; Officer Lloyd left in 2009, Cole in 2011, and Evans in 2011.
(Doc. 147 at 36–38, 57–58, 144, 179; Doc. 151 at 3; Doc. 154 at 41–
42.)
37
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.)
ever doing so.
that
his
stopped
(Doc. 154 at 56–57.)
command
discretion,
Sheriff Johnson similarly denied
so
left
that
without
any
all
“if”
arrests
an
to
officer
identification,
brought in for processing.
Rather, the Sheriff stated
the
officer’s
arrested
the
an
individual
(Id. at 57–58.)
proper
individual
should
be
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
38
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. 19
(Doc. 154 at 37–38.)
Lieutenant Brian Allen
similarly described ACSO’s arrest policy as follows: “[I]f it
was anybody that we couldn’t positively identify, . . . they
needed to be arrested, and that’s anybody.”
16.)
(Doc. 152 at 215–
As noted, this is what Officer Lloyd explained as well.
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
19
discretion”
when
facing
an
As noted below, this is in fact what transpired with the stop of
Jose Luis Arzola, Jr., the only witness offered by the Government as
an example of alleged targeting. Once he provided identification (but
not proof of citizenship) after being stopped, he was not arrested,
cited, or warned, but permitted to go about his way.
39
individual stopped without any identification.
136, 157.)
(Doc. 150 at
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.)
choice” to arrest.
with
Sheriff
In sum, the officer “make[s] the
(Id. at 173.)
Johnson’s
articulation
All of this is consistent
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
Hispanic)
that
would
an
officer
not
complained.
This
Government’s
evidence
have
is
or
employee
questioned
especially
that
all
40
(some
his
true
orders
of
of
whom
statements
in
the
light
of
Sheriff
are
and
the
were
expected to be obeyed and that all three individuals who claimed
to hear such a directive universally testified that they never
followed it.
3.
The
Orders to Target Hispanics
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.
57–58.)
made,
(Doc. 154 at
The court is doubtful that the claimed statement was
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.”
(Doc. 147 at 81.)
While he could not recall the
41
context, it was most likely when the owner of the Rocky Top
mobile home park, which has a significant Hispanic population,
came
to
Sheriff
Johnson’s
office
to
complain
about
crime.
Sheriff Johnson summoned Corporal Nicholson, who reported that
the “Bandidos,” a Mexican gang operating in that area, had been
breaking and entering into trailers in the mobile home park.
(Id.
at
78,
88–89.)
Corporal
Nicholson
testified
that
he
interpreted the Sheriff’s comment as a command to arrest every
Hispanic
in
the
park.
(Id.
at
86–87.)
But
as
Corporal
Nicholson conceded, because the park was predominantly Hispanic,
such
many,
an
interpretation
if
Insofar
whatever
not
as
interpretation
testimony.
have
of
the
owner’s
owner,
who
most,
the
the
would
Sheriff
appears
In
fact,
said
was
or
resulted
paying
present,
directed,
overstated
Corporal
and
in
arrest
customers.
never
of
(Id.)
objected
Corporal
conflicts
Nicholson
the
to
Nicholson’s
with
admitted
his
he
own
never
arrested anyone, but instead set up a license check point near
the park on his own accord “to appease” the Sheriff.
78, 87–89.)
(Id. at
When pressed further, he conceded that he never
intended to arrest non-violent or non-criminal Hispanics, but
was after the “Bandidos,” who were the “people who broke the law
that day”; and he inferred that is what the Sheriff meant, too.
(Id. at 88–89.)
Corporal Nicholson also denied that he ever
targeted any Hispanics or knew anyone at ACSO who did.
42
(Id. at
92.) 20
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
(Doc. 151 at 132.) 21
Johnson said, “go get those Mexicans.”
Sergeant Crain recalled the Sheriff making the statement upon
learning that a Mexican gang had spray-painted an ACSO patrol
car.
(Id. at 132–33, 136–37; Doc. 154 at 69–70.)
Crain’s
testimony
Sergeant
Crain
differs
heard
an
from
order
the
to
Government’s
“[g]o
get
some
Notably,
claim
that
Mexicans.”
(Doc. 158 at 11, 122 (emphasis added).)
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
20
Corporal Nicholson also testified that, in front of the mobile home
park owner, Sheriff Johnson told him to “arrest every chili shitter in
the park.” (Doc. 147 at 77.) Corporal Nicholson has some reason for
bias, as he was reprimanded for sexual harassment by Sheriff Johnson.
(Doc. 147 at 92–93.).
Sheriff Johnson denies he made this statement
(Doc. 154 at 70), and Sergeant Christopher Crain — also present at the
time — denies ever hearing any such statement.
(Doc. 151 at 136.)
Even assuming this epithet was used, it is some evidence of ethnic
bias but, for the reasons noted, even Corporal Nicholson did not
interpret it as any command to arrest non-violent or law-abiding
Hispanics, but rather as a reference to the Bandidos gang members
thought to be committing the crimes in the park.
21
This is also consistent with Sheriff Johnson’s testimony that he
told Corporal Nicholson and Sergeant Crain during a meeting to “go
down there and get those Mexicans,” referring to the Mexican gang
committing the crimes. (Doc. 154 at 70.)
43
his deputies to arrest individuals simply because they were from
Mexico or were Hispanic.
4.
ACSO Checkpoint Policy and Implementation
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
manual
policy
procedures
113.)
for
The
guidelines
its
outlines
checkpoint
general
and
which
purpose
procedures
the
operations.
of
for
the
(Gov’t
policy
members
of
purposes
“is
Trial
to
[ACSO]
and
Ex.
establish
to
conduct
suspicion less [sic] seizures of vehicles at vehicle checking
stations (checkpoints).”
(Id. at 1.)
The policy provides for three permissible purposes or types
of
checkpoints:
operations.”
“standard”;
(Id.
at
2–4;
“informational”;
Doc.
154
at
and
104–05.)
“special
Standard
checkpoints were the most commonly used and aim to “determine
compliance with motor vehicle laws,” such as “verification of
drivers’
checks,
licenses,
seat
belt
impaired checks.”
vehicle
registration
compliance
checks[,]
checks,
and
insurance
driving
while
(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
44
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
advance”).)
3
(stating
Once
in
that
place,
approval
standard
must
and
be
made
“in
informational
checkpoints must “provide for the stopping of every vehicle.”
(Id.
at
1.)
Special
apprehension
of
a
operations
suspect
who
checkpoints
poses
a
focus
danger
to
on
“the
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
passing
following
through
a
logistical reasons.
a
traffic
checkpoint,
stop
—
for
presumably
every
for
(See Gov’t Trial Ex. 59.)
vehicle
practical
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
reasonable time.
the
policy
can
an
officer
(Id. at 2–3.)
prohibits
ACSO
a
driver
for
a
For informational checkpoints,
officers
licenses or any other documentation.
45
detain
from
asking
(Id. at 3.)
for
drivers’
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.
at 1, 3–4.)
stop
forms
(Id.
Therefore, at checkpoints, ACSO officers fill out
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
checkpoints in the County from 2009 through 2012. 22
93.)
Some
of
those
occurred
predominately Hispanic residents.
near
mobile
home
thirty-five
(Doc. 153 at
parks
with
(Doc. 147 at 156–57, 188–90,
213; Doc. 148 at 18; Doc. 150 at 85.)
ACSO also patrolled at or
near these mobile home parks on occasion. (Doc. 149 at 216–17;
22
The Government suggests that there were more, pointing to testimony
from a few deputies that they conducted checkpoints on a “daily
basis.”
(See Doc. 158 at 75 n.23; see also Doc. 150 at 81–82.)
Because the policy appears to require checkpoint authorization forms
for only standard checkpoints, it is possible there were more nonstandard checkpoints.
But there was no evidence of any alleged
activity at any unreported checkpoint.
46
Doc. 153 at 9; Doc. 154 at 106–07; Def. Trial Ex. 61.)
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.
Ex. 113; Doc. 154 at 104–05.)
their
performance
of
(Gov’t Trial
Most officers testified as to
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.”
47
(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,
conjunction with ACSO.
Conklin
echoed
that
drivers
check”
(Doc. 152 at 171–72.)
the
“purpose
of
setting
checkpoints is “motor vehicle violations.”
also
id.
at
registrations.
drugs.
that
checkpoints
90
(“We
. . .
check
in
Deputy James
up”
standard
(Doc. 150 at 82; see
driver’s
license
and
We don’t set them up specifically for
If we stop a vehicle and either smell or see something,
would
Sergeant
indicate
Crain
“ensur[ed]
described
us
testified
compliance
primarily.”
to
we
move
the
that
with
forward.”).)
checkpoints
North
Carolina
(Doc. 151 at 112–13.)
informational
information
on
the
checkpoints
crime”
or
Similarly,
he
motor
conducted
vehicle
law
Similarly, Sheriff Johnson
as
attempts
individuals
“to
committing
get
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.”
44.)
(Doc. 158 at 142–
Such testimony was generally elicited by the Government
through leading questions and was generally clarified on crossexamination as merely the deputies’ shorthand for a “standard”
48
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
rather
“set
for
[checkpoints]
motor
vehicle
up
specifically
violations).)
The
for
drugs”
Government
but
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
approves of placing checkpoints in high crime areas).)
that
he
Apart
from what is discussed immediately below, however, there was no
evidence
that
ACSO
conducted
any
standard
checkpoint
with
a
purpose to target Hispanics.
Of
the
over
400
checkpoints
conducted,
presented evidence relating to four. 23
Crotts
—
a
Communications.
county
employee
at
Government
The first involved Paula
Alamance
(Doc. 149 at 116–17.)
23
the
County
Central
On a Sunday in 2010,
The complaint lists five mobile home parks that ACSO allegedly
targeted with checkpoints.
(Doc. 1 ¶ 45.)
At trial, the Government
offered evidence as to only three of those mobile home parks — Rocky
Top, Seamsters, and Calloway Drive.
49
ACSO Deputy Sara Keller stopped Crotts and her husband (both of
whom are Caucasian) at a checkpoint on Monroe Holt Road near
Rocky Top mobile home park, which is predominantly Hispanic.
(Id. at 116–19.)
Crotts’ husband was driving the car and, upon
approaching the deputies, retrieved his wallet and began to pull
out his driver’s license.
(Id. at 119.)
Deputy Keller leaned
in, observed the two of them (Deputy Keller knew Crotts because
Crotts was a substitute teacher at the high school Deputy Keller
attended (id. at 119–24)), said hello to Crotts, and said that
she did not need to see Mr. Crotts’ license because “they were
there to get them some,” gesturing toward the mobile home park.
(Id. at 119.)
Crotts testified (without objection) that she
assumed that Deputy Keller meant “she was there to get as many
Hispanics — or get an Hispanic person stopped,” but she conceded
she did not know.
(Id. at 120, 125.)
Deputy Keller had no
recollection of seeing Crotts at a checkpoint and denied making
the statement or waving them through.
(Id. at 114–15.)
She did
admit that she had conducted a checkpoint on Monroe Holt Road as
well as another checkpoint on Kernodle Lane — the road entering
the mobile home park.
(Id. at 110–13.)
There was also evidence
that ACSO conducted a small number of checkpoints on weekends,
although the policy manual discourages them from taking place
near a religious institution during worship hours.
31–32
(noting
that
the
policy
50
manual
did
(Doc. 150 at
not
prohibit
checkpoints on the weekend); Doc. 153 at 10; Doc. 153 at 4;
Gov’t
Trial
Ex.
113
at
5.)
The
court
concludes
that
the
checkpoint occurred as Crotts testified.
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.
meeting
those
when
the
Sheriff
Mexicans,”
told
referring
crimes in the park.
Corporal
to
the
This was the
Nicholson
Bandidos
to
gang
“get
me
committing
(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,
forms.
wrote
no
citations,
and
filled
out
no
traffic
stop
(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
(Doc. 147 at 29–30, 47, 155.)
is
predominantly
Hispanic.
Sheriff Johnson asked Officer
Lloyd to set it up, and it was the only checkpoint the Sheriff
asked of him.
Evans
and
(Id. at 155.)
Steven
Perry
—
Two other ACSO officers — Kenneth
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
51
Operators License] or driving revoked, we was [sic] to arrest
them.”
(Id.
at
155.)
Officer
Lloyd,
however,
added,
“We
discussed it, and we decided we was [sic] going to also arrest
any whites or blacks at these same checkpoints also.”
(Id.)
Evans and Perry similarly testified that Sheriff Johnson told
them to arrest Mexicans or Hispanics.
(Id. at 30 (Perry: “If
any Mexicans violate the law, lock their ass up.”), 52 (Evans:
“[I]f there is [sic] any Hispanics that come through here or
whatever, . . . you don’t write them a citation, you take [them]
to
jail.”).)
It
is
not
clear
why
the
Sheriff
would
have
directed such a statement to them because neither was tasked
with
any
responsibility
checkpoint. 24
ACSO
had
actually
arrest
anyone
at
the
In any event, at the conclusion of the checkpoint
arrested
Hispanics.
to
equal
numbers
(Id. at 155–56.)
of
whites,
blacks,
and
Officer Lloyd was also adamant
that he never discriminated against Hispanics nor knew any ACSO
officer who had.
(Id. at 168.)
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.
at 56.)
(Doc. 154
Chief Deputy Britt, who lives in the general vicinity
of the checkpoint, testified that he recalled only a checkpoint
24
As previously noted, two of the three officers have reason for some
bias because the Sheriff had fired them or their family members.
52
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.
because
it
performed
was
no
only
informational,
arrests
or
he
citations.
stated,
(Id.)
ACSO
Indeed,
And
officers
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.
26.)
(Id. at
Finally, Officer Culler, who was a North Carolina Highway
Patrol
officer
conducting
from
1983
checkpoints
to
with
ACSO
2011,
as
credibly
a
acknowledged
“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,
direct
Officer
examination
Lloyd
that,
testified
while
during
preparing
the
to
Government’s
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
53
Johnson,
and
reported
back
that
the
Sheriff
meant
instruction for everyone and “didn’t mean just Hispanics.”
the
(Id.
at 158–59.)
5.
ACSO’s Stops and Searches
a.
Particular Stops
The Government’s complaint contains broad allegations that
ACSO
discriminatorily
suspicion,
alleging
(Doc. 1 ¶ 37.)
of
these
stops
several
Hispanics
“[e]xamples
without
of
reasonable
such
incidents.”
By the time of trial, however, the vast majority
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
enforcement case).
in
Fourteenth
Amendment
selective
law
Evidence of two other stops was offered at
trial, but the Government makes no reference to either of these
in its post-trial proposed findings of fact and conclusions of
law.
All three will be addressed below.
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
54
the posted 65 mile per hour speed limit. 25
(Id. at 86, 91–93.)
When making the stop, Deputy Conklin approached the vehicle from
behind and did not know the ethnicity of the van’s driver or
passengers.
(Id. at 92–93.)
The van was driven by a Hispanic
man and had several Hispanic passengers.
(Id.)
When asked for
his license and registration, the driver handed Deputy Conklin a
sheet of paper with a list of twelve to fifteen names, phone
numbers, and dollar amounts.
(Id. at 93–94.)
Deputy Conklin
also observed “multiple fast-food bags with trash in them” and
bottles filled with what appeared to be urine.
(Id. at 94.)
This
he
evidence
led
him
to
possible human trafficking.
contact
(Id.)
ICE
because
suspected
The Government cites the
fact that Deputy Conklin detained the van and its occupants for
approximately fifty minutes or an hour, but on cross-examination
it was apparent that he did so at the direction of ICE so its
agents could arrive at the scene.
(Id. at 95.)
The deputy
could not recall whether he issued a citation or a warning.
(Id. at 86–87.)
He was later advised that the U.S. Attorney’s
Office declined to prosecute the case because it had “concerns”
about the validity of the stop.
(Id. at 87.)
There was no
testimony as to what those “concerns” were or what became of the
25
Impeding traffic is a violation of North Carolina traffic law.
N.C. Gen. Stat. § 20-141(h).
55
See
matter, yet Deputy Conklin believed some occupants were released
and some were transported to ACSO’s office. 26
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.)
described
Of those, he declined to prosecute two cases and
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.)
driver
alien
was
Hispanic.
an
but
could
(Id. at 193, 197–98.)
Husser remembered that the
not
recall
whether
he
was
Husser’s concern at the time
was that the stop was improper “no matter who the driver was.”
(Id. at 194.)
with
ACSO
evidence
as
that
Hispanics.
He noted, however, that during his involvement
an
Assistant
its
deputies
U.S.
Attorney,
racially
or
he
never
observed
ethnically
profiled
(Id. at 196.)
Finally, the Government elicited testimony from Jose Luis
Arzola,
Jr.,
a
Hispanic
man
living
in
Carolina, which lies within Alamance County.
Burlington,
North
Arzola has been
stopped by an ACSO deputy approximately three times in the ten
26
It is thus unknown whether some occupants were ultimately detained
by ICE and deported.
56
years he has lived in the County.
received traffic
citations,
but
(Doc. 147 at 184.)
he
“usually”
did
not
He has
get
an
explanation for the stop reason until he examined the ticket.
(Id.
at
191.)
unwarranted.
He
In
did
2009
not
or
maintain
2010,
driving
on
an
a
that
any
unspecified
highway
near
citation
was
ACSO
deputy
Green
Level.
stopped Arzola
while
(Id. at 185.)
Arzola was not aware that he had violated any
traffic law but could not say whether he was speeding.
(Id.)
Once Arzola pulled his car to the side of the road, the deputy
asked him for his driver’s license.
(Id. at 185–86.)
After
that was produced, the deputy asked for his “papers.”
(Id.)
The deputy
never
clarified
the
question,
but
Arzola,
who
is
legally present in the United States on a Green Card, assumed
the question referred to immigration documents. 27
92.)
(Id. at 191–
Arzola responded that he did not have his immigration
documents with him, but that they were at his house.
187, 191.)
Apparently satisfied, the officer let Arzola leave.
(Id. at 191.)
Arzola “didn’t really see it as a big deal” and
never filed a complaint with ACSO about the stop.
93.)
(Id. at
(Id. at 192–
In fact, he testified that ACSO and its officers responded
twice to his calls of two break-ins at his home and described
27
Under the Fourth Amendment, the Supreme Court appears to allow the
inquiry into a stopped individual’s immigration status so long as the
inquiry does not prolong the stop (and the stop is itself valid). See
Arizona v. United States, 132 S. Ct. 2492, 2509 (2012); Muehler v.
Mena, 544 U.S. 93, 101 (2005).
57
his treatment as “excellent.”
(Id. at 194.)
He explained that
he called ACSO on both occasions because he believed that having
them respond would reassure his wife and make her feel safe.
(Id. at 194–95.)
b.
Statistical Evidence
i.
Dr. John Lamberth
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
Consulting firm in West Chester, Pennsylvania.
28.)
Lamberth
departments
to
(Id. at 31.)
Consulting
identify
focuses
potentially
on
Lamberth
(Doc. 148 at
assisting
discriminatory
police
targeting.
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
psychology at Temple University.
chair
of
the
department
(Id. at 29–30.)
master’s degree and Ph.D. in social psychology.
of
He holds a
(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
58
concentrating
on
traffic enforcement and racial or ethnic disparities.
30–31.)
in
The Government thus offered Dr. Lamberth as an expert
studying
Sheriff
(Id. at
patterns
Johnson
of
does
traffic
not
enforcement.
dispute
Dr.
(Id.
at
Lamberth’s
37.)
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. 28
(Id. at 38.)
by creating a “benchmark survey.”
(Id.)
Dr. Lamberth began
To do so, he attempted
to create a profile of drivers — a “benchmark” — by observing
all
drivers
ethnicity,
on
and
traffic law.
selected
whether
roads
they
in
were
(Id. at 38, 40.)
Alamance
violating
a
County,
North
their
Carolina
Here, the benchmark sought to
determine how many Hispanic drivers violate a traffic law on
specific roads in Alamance County.
28
(Id. at 40.)
Dr. Lamberth
Dr. Lamberth did not analyze ACSO’s traffic-stop database. Although
ACSO’s traffic stop forms contain information on the ethnicity of each
driver stopped as observed by the officer, the stop forms lack
information on the location of the stops. (Doc. 148 at 98–99.) Dr.
Lamberth testified that, without that location information, he could
not perform an accurate comparison between the traffic stops performed
by ACSO officers and his observational benchmarks.
(Id.)
Dr.
Lamberth’s testimony, however, did not explain why a citation form,
which had the stop location, could not be linked to its corresponding
stop form, which contained the ethnicity of the driver. (See id. at
173.)
59
then compared that benchmark to the actual citations issued by
ACSO on those same roads.
(Id. at 38–39; see also Gov’t Trial
Ex. 71 (example citation form).)
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.)
through both urban and rural areas.
The highways also cut
(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. 29
at 54–55.)
(Id.
Each observation site was at least a quarter of a
mile from an intersection, to allow for the identification of
vehicles exceeding the speed limit.
(Id. at 66.)
located sites on both sides of the highways.
Dr.
Lamberth
employed
two
persons
—
He also
(Id. at 67.)
Richard
Sabino Valdez — to conduct the traffic survey.
Rivera
and
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
29
The demonstrative offered by the Government (“D2”) maps out a total
of twenty-three observation sites.
60
making observations of some fifteen thousand drivers.
(Id. at
67, 175.)
Rivera is a former New Jersey state police officer.
at
70,
188.)
No
information
on
Valdez’s
(Id.
background
provided, and neither surveyor testified at trial.
was
Both are
Hispanic and have worked with Dr. Lamberth in prior studies.
(Id.
at
70–71,
observations,
77.)
with
Rivera
Valdez
made
the
assisting
“vast
him
at
majority”
some
of
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.
The
surveyors
identified
“looked” Hispanic.
description,
(Id. at 61, 70–71, 175–76.)
drivers
who
(Id. at 181.)
criteria,
or
“appeared
to
be”
or
Dr. Lamberth provided no
standard
used
by
the
surveyors
to
identify someone they believed to be “Hispanic” other than “if
they thought someone looked Hispanic.” 30
(Id.)
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
30
the
reliability
of
visual
Dr. Lamberth was unable to articulate a standard, definition, or
description the surveyors may have used, even upon the court’s
separate questioning of him. (Doc. 148 at 181.)
61
observation.
(Id. at 58–59.)
The purpose of an inter-rater
reliability test is to determine both how the surveyors identify
individuals’
ethnicities
identifications.
(Id.
and
at
the
reliability
56–57.)
The
test
of
those
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 driver ethnicity in at least 80% of the
observations.
(Id.
at
56.)
Here,
Dr.
Lamberth
testified,
Rivera’s and Valdez’s “inter-rater reliability” testing produced
agreement
as
to
observations.
the
ethnicity
of
(Id. at 56–57, 60.)
drivers
in
100%
of
their
However, the surveyors only
made ten test observations, and none included a Hispanic driver.
(Id. at 128, 131.)
In
addition
endeavored
to
to
observing
identify
those
ethnicity,
drivers
Carolina traffic law in any regard.
the
who
surveyors
violated
a
also
North
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
apparently
traffic
“familiar
law
violations,
with”
according to Dr. Lamberth.
North
but
Carolina
(Id. at 72.)
62
both
surveyors
traffic
were
laws,
Rivera also used a
radar device to identify speeding violations.
Using
traffic
Rivera
law
and
Valdez’s
violations,
Dr.
(Id.)
observations
Lamberth
of
purported
benchmark for each of the three highways.
ethnicity
to
and
create
(Id. at 78.)
a
After
initially identifying Hispanic violators, Dr. Lamberth weighted
the benchmark based on the incidence of citations at a given
location.
weighted
(Id. at 63–64, 79.)
the
observed
Put differently, Dr. Lamberth
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
violations across the three surveyed highways.
rates
of
(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.
of
For Highway 49, he concluded, the weighted percentage
Hispanic
drivers
violators
observed
on
was
this
violated a traffic law.
4.17%,
road,
meaning
4.17%
were
(Id. at 103–04.)
weighted percentage was 4.34%.
weighted percentage was 2.71%.
that,
both
of
the
total
Hispanic
and
On Highway 70, the
(Id. at 107.)
Highway 87’s
(Id. at 106.)
Dr. Lamberth used these weighted percentages of Hispanic
violators
as
benchmarks
to
compare
63
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. 31
(Id. at 38–39, 47.)
The citations included the
location where the citation was issued, permitting Dr. Lamberth
to identify those citations issued on the three highways.
at
89.)
Dr.
highways
Lamberth
from
2008
approximately 2,000.
identified
through
citations
October
issued
2013,
(Id. at 48–49, 90.)
on
which
(Id.
those
totaled
From that group he
then removed those citations issued between the hours of 1:00
a.m.
and
7:00
a.m.
because
observations during that time.
his
surveyors
did
not
conduct
(Id. at 69.)
ACSO’s citation database lacks information identifying the
ethnicity of the individual cited.
address
this
analysis.”
analysis
for
problem,
Dr.
(Id. at 90–91.)
this
case
is
(Id. at 90.)
Lamberth
To attempt to
conducted
a
“surname
The basic assumption of surname
that
individuals
surnames “tend heavily to be Hispanic.”
31
with
(Id. at 90.)
particular
Operating
Dr. Lamberth’s analysis included non-traffic citations issued as a
result of traffic stops. (Doc. 148 at 112.) The Government attempted
to introduce additional analysis by Dr. Lamberth in which he removed
those citations for non-traffic offenses.
(Id. at 113–18.)
Sheriff
Johnson objected on the ground that the Government failed to amend Dr.
Lamberth’s expert report to include this additional analysis as
required by Federal Rule of Civil Procedure 37(c)(1).
(Id. at 113,
116–17.)
The Government responded that, under Rule 26(e)(1)(A), no
amendment was required.
(Id. at 115–17.)
The court took the issue
under advisement (id. at 118) but need not resolve it because the
additional analysis would not change the court’s conclusion that the
analysis is fundamentally unreliable for other reasons, as provided
below.
64
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.)
do
the
this,
Bureau
he
that
used
probabilities
estimated
whether
developed
a
would self-identify as Hispanic.
person
by
with
a
U.S.
given
(Id. at 91–92.)
To
Census
surname
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. 32
(Id. at
92.)
Using this information, Dr. Lamberth calculated estimates
of
the
percentage
highway.
(Id.
at
of
citations
94–95.)
issued
to
According
to
Hispanics
Dr.
for
Lamberth,
each
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.
107.)
And, for Highway 87, 15.39% of ACSO citations were issued
to Hispanics.
rate
(Id. at
for
these
(Id. at 106.)
estimates
Dr. Lamberth calculated an error
between
32
3%
and
5%,
noting
it
was
Dr. Lamberth testified that he also performed a surname analysis in
which he estimated the number of Hispanics using U.S. Census Bureau
probabilities but using a probability cutoff of 75%. (Doc. 148 at 91,
94.) In other words, if a name on an ACSO citation had an associated
probability less than 75%, that individual would not be counted as
Hispanic in Dr. Lamberth’s study.
Dr. Lamberth testified that this
alternative calculation did not significantly change his results.
(Id. at 94.)
65
“bidirectional,”
meaning
undercount
or
overcount
citations.
that
the
the
estimates
number
of
may
Hispanics
slightly
receiving
(Id. at 97–98.)
With the benchmarks from the observational study and the
estimates
from
the
surname
analysis,
“odds ratios” for each highway.
Dr.
Lamberth
(Id. at 33.)
calculated
Dr. Lamberth’s
odds ratios sought to measure the likelihood that a Hispanic
would receive a citation compared to a non-Hispanic.
33, 39–40.)
of
his
(Id. at
The odds ratios reflect Dr. Lamberth’s comparison
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 sub-
group 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.
Lamberth
testified
that
statistically significant.
each
of
(Id. at 104, 106–07.)
those
(Id. at 104–08.)
odds
ratios
Dr.
was
He also conducted
this same analysis for the intersection of Graham-Hopedale Road
and Apple Street Extension in Alamance County.
108.)
(Id. at 50–51,
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
66
cited Hispanics at a much higher rate than the rate at which
they violated traffic laws.
ii.
(Id. at 39.)
Dr. John MacDonald
The Government also presented expert testimony by Dr. John
MacDonald as to ACSO’s law enforcement practices after traffic
stops.
Dr. MacDonald is an associate professor of criminology
and sociology at the University of Pennsylvania.
4.)
(Doc. 149 at
Criminology is “a social science that’s focused on studying
the causes of crime, the response of crime, and some aspects of
[lawmaking]
bachelor’s
. . . .”
degree
(Id.
in
at
political
6.)
Dr.
science
degree and Ph.D. in criminology.
MacDonald
and
(Id. at 5.)
both
a
holds
a
master’s
Prior to joining
the faculty at the University of Pennsylvania, Dr. MacDonald was
a professor at both the University of South Carolina and the
University of Florida and spent time as a behavioral scientist
at the Rand Corporation.
(Id.)
Since 2006, he has held various
positions at the University of Pennsylvania.
work
at
both
Pennsylvania
the
Rand
involved
justice system.
Corporation
statistical
(Id. at 5–6.)
and
analysis
(Id. at 6.)
the
and
University
the
His
of
criminal
Much of his scholarly research
and peer-reviewed publications also contain statistical analyses
on the topics of crime control and responses to crime.
7–8.)
67
(Id. at
Beyond his academic work, Dr. MacDonald has served as a
consultant for several law enforcement agencies to analyze their
policing activities.
research
on
(Id. at 8.)
identifying
His consulting work included
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
examined
stops.
the
(Id.
following
at
11–12.)
outcomes
First,
occurring
Dr.
after
MacDonald
ACSO
traffic
stops: (1) citation; (2) arrest; (3) written warning; (4) verbal
warning;
and
outcomes”).
(5)
(Id.)
no
enforcement
action
(hereafter
“post-stop
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
68
2013. 33
(Id. at 11–15.)
stop
database
forms
based
contained
on
the
completing them.
For that time period, ACSO’s traffic
information
information
from
20,059
provided
(Id. at 13–14.)
by
traffic
the
stop
deputies
Those stop forms include
information on the following: the initial reason for the traffic
stop; vehicle driver information (including the driver’s race
and ethnicity but not name); the enforcement action taken as a
result of the stop (specifically, whether an officer issued a
citation, made an arrest, issued a verbal or written warning, or
made no enforcement action); whether the officer performed a
search during the stop; the type of search (i.e., whether the
search was based on probable cause, consented to, based on a
search
warrant,
incident
to
arrest,
or
a
protective
frisk);
whether a passenger was searched; and whether the officer found
“contraband” (e.g., illegal drugs or weapons).
(Id. at 14–16;
Gov’t Trial Ex. 59 (example of ACSO traffic stop form).)
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 testimony generally credible but, for the
reasons
noted
herein,
finds
many
of
the
conclusions
the
Government seeks to draw from it unsupported.
33
Dr. MacDonald did not rely on the citation database
Lamberth used in his observational study. (Doc. 149 at 18.)
69
that
Dr.
(a)
In
his
first
study
Post-Stop Outcome Study
examining
post-stop
MacDonald performed two comparisons.
outcomes,
Dr.
First, he calculated a
“raw” percentage for each of the five post-stop outcomes and
separated
(Doc.
his
149
at
results
between
19–20.)
He
Hispanics
then
and
performed
non-Hispanics.
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. 34
(Id.)
Dr. MacDonald used a
logistic regression model, which held differences in stop reason
constant between Hispanic and non-Hispanic stops.
37–38.)
(Id at 23,
He controlled for stop reason because he believed that
differences in stop reasons may explain differences in the poststop outcomes faced by Hispanics and non-Hispanics.
(Id. at
23.)
Dr.
officers
MacDonald
issued
did
not,
citations
or
however,
made
control
arrests
for
the
following
a
reason
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
34
ACSO’s stop form provides ten reasons for traffic stops: checkpoint,
driving while impaired, investigation, other motor vehicle violation,
safe movement violation, seat belt violation, speed limit violation,
stop light/sign violation, vehicle equipment violation, and vehicle
regulatory violation. (Gov’t Trial Ex. 59.)
70
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 poststop outcome study lacks “a layer of context[].”
Dr.
MacDonald’s
comparisons
(Id. at 42.)
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.
stop
reason,
Dr.
(Id. at 21–22.)
MacDonald’s
study
After controlling for
showed
that
a
stopped
Hispanic is 146% more likely to receive a citation relative to a
stopped non-Hispanic.
the
post-stop
Hispanics
outcome
were
Hispanics.
(Id. at 25–26.)
study
arrested
as
(Id. at 29.)
revealed
compared
to
Second, as to arrests,
that
11.9%
6.2%
of
of
stopped
stopped
non-
Dr. MacDonald’s controlled comparison
of arrests indicated that a stopped Hispanic is 52% more likely
to
be
Third,
arrested
for
the
than
a
stopped
post-stop
non-Hispanic.
outcome
of
written
(Id.
at
warnings,
30.)
Dr.
MacDonald found that 5% of stopped Hispanics received written
warnings relative to 9.5% of stopped non-Hispanics.
35.)
(Id. at 34–
Controlling for stop reason, Dr. MacDonald’s comparison
indicated
that
stopped
Hispanics
were
44%
less
stopped non-Hispanics to receive a written warning.
71
likely
than
(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
receive a verbal warning than stopped non-Hispanics.
33.)
to
(Id. at
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
stopped
36–37.)
The
Hispanics
controlled
were
comparison
63%
likely
less
Dr.
MacDonald’s
second
that
stopped
non-
than
Hispanics to receive no law enforcement action.
(b)
indicated
(Id. at 37.)
“Hit-Rate” Study
study
was
of
“hit
rates,”
which
analyzed the rate at which searches performed subsequent to a
traffic stop yielded contraband.
had two major components.
(Id. at 40.)
This analysis
First, Dr. MacDonald determined the
rate at which stopped Hispanics and stopped non-Hispanics were
searched.
He
concluded
that
16%
of
stopped
Hispanics
searched as compared to 12.9% of stopped non-Hispanics.
41.)
These figures are statistically significant.
were
(Id. at
(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
72
(Id. at 43–44.) 35
common contraband found.”
stop
reason
but
approximately
not
6%
search
of
reason,
searches
of
Dr.
Controlling for
MacDonald
stopped
found
Hispanics
that
uncovered
drugs as compared to 30% of searches of stopped non-Hispanics.
(Id. at 44–45.)
In other words, searches of stopped Hispanics
were 85% (or he said about five times) less likely to uncover
drugs relative to stopped non-Hispanics.
(Id. at 45.)
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.
Hispanics
(Id. at 46–47.)
were
80%
less
stopped non-Hispanics.
He found that searches of stopped
likely
(Id.)
are statistically significant.
to
uncover
drugs
relative
to
He reported that these figures
(Id. at 46–48.)
In summing up his conclusions, Dr. MacDonald opined that
his
“hit
standard,
rate”
a
analyses
lower
“suggest
threshold
of
that
there
suspicion
or
is
a
different
probable
cause
[being applied] in searching Latinos compared to non-Latinos.”
(Id. at 48.)
Finally,
Dr.
MacDonald
measured
35
search
hit
rates
Dr. MacDonald testified that he examined other contraband and found
a “consistent pattern of hit rates being significantly lower for
Latinos compared to non-Latinos.” (Doc. 149 at 44.)
73
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.” 36
(Id.)
Dr.
MacDonald’s study indicated that the overall contraband hit rate
for checkpoint searches of stopped Hispanics was 10.99%, while
the overall contraband hit rate for stopped non-Hispanics was
56.8%.
(Id. at 49–50.)
significant.
(Id.)
Each of these figures is statistically
In summing up his opinion as to searches
ACSO conducted at vehicle checkpoints, Dr. MacDonald testified
that his results “suggested at checkpoints the searches being
conducted
on
Latinos
have
suspicion or probable cause.”
a
lower
threshold
for
reasonable
(Id. at 50.)
As to all results, Dr. MacDonald concluded that they showed
“a consistent pattern” across all post-stop outcomes and “on an
36
Dr. MacDonald did not say in which direction that difference lay or
its numerical magnitude.
A demonstrative exhibit contained some
information, but it was only identified and not moved or admitted into
evidence.
74
order of magnitude that’s pretty large” compared to what he has
seen in other research as well as in his own work.
(Id. at 51.)
iii. Officer Mark Dockery and ACSO Data on
Searches Not Incident to Arrest
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
response
searches,
to
Dr.
Sheriff
MacDonald’s
Johnson
Officer Mark Dockery. 37
Officer
Dockery
In this regard and
testimony
introduced
about
the
discretionary
testimony
of
ACSO
(Doc. 153 at 31.)
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.
He
holds
an
associate’s
degree
from
(Id. at 35–36.)
Rockingham
Community
College, has taken a course in crime analysis, and has received
training from the manufacturer of ACSO’s records system.
at
32–33.)
That
training
included
37
work
on
Crystal
(Id.
Report
Before trial, the Government moved to exclude Officer Dockery on the
grounds he was not properly disclosed as an expert witness.
(Doc.
116.)
The court reserved ruling on the motion, and at the close of
evidence the Government conceded that its motion had become moot
because Officer Dockery did not provide expert opinion testimony.
(Doc. 155 at 44–45.)
75
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 38 from
December 20, 2008, to October 4, 2013.
(Id. at 51–52.)
placed
into
all
of
ACSO’s
traffic
stop
data
a
He
spreadsheet,
examined all traffic stops involving searches, and removed those
marked as incident to arrest.
traffic
stop
searches
not
(Id. at 51–53.)
incident
to
This left only
arrest,
which
Officer
Dockery organized by the stop reasons provided on ACSO’s stop
form.
(Id. at 53; see also supra note 34.)
He then compared
the results for Hispanics and non-Hispanics (based on ethnic
information
in
the
database)
by
search
reason,
conducting
a
simple mathematic calculation to determine the percentage the
results represent based on the overall number of stops.
153 at 54, 73.) 39
(Doc.
Officer Dockery’s calculations, which were not
disputed as to their accuracy, were as follows:
38
Because most departments have a policy that requires a search of all
arrestees, ACSO officer discretion should not come into play for a
search incident to arrest; such searches are specifically recorded as
a “type of search” option on ACSO’s traffic stop form. (Doc. 149 at
63; Gov’t Trial Ex. 59.)
39
Although Officer Dockery often referred to these figures as “rates,”
they are more accurately considered as percentages.
See Federal
Judicial Center, Reference Manual on Scientific Evidence 294 (3d ed.
2011).
76
STOP REASON
HISPANIC NONINCIDENT TO
ARREST SEARCHES
Checkpoint
35
Driving While 6
Impaired
Investigatory
61
Regulatory 41
149
Other
20
Safe
38
Movement
Speeding
30
Seatbelt
5
Violation
Stop Sign
12
Violation
Vehicle
21
Equipment
Vehicle
23
Registration
Total
251
PERCENTAGE OF
HISPANICS
SEARCHED
5.18%
20.00%
PERCENTAGE OF
NON-HISPANICS
SEARCHED 40
22.27%
19.07%
11.42%
10.29%
16.46%
7.97%
9.62%
13.24%
11.28%
10.33%
10.53%
14.71%
5.53%
14.04%
10.17%
7.13%
7.42%
8.08%
9.87%
7.68%
(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
investigatory,
“other”).
(e.g.,
at
vehicle
checkpoints,
equipment,
driving
seatbelt
while
impaired,
violations,
and
The largest gap was at checkpoint searches, where
Hispanics were searched less than non-Hispanics by a factor of
40
Officer Dockery presented absolute numbers only for searches of
Hispanics not incident to arrest and not for the non-Hispanics, and
the Government did not seek the latter on cross-examination.
41
“Regulatory” is not itself provided as a stop reason on ACSO’s
traffic stop form but is Officer Dockery’s designation for a group of
seven stop reasons: safe movement, speeding, seatbelt, stop sign,
vehicle equipment, vehicle registration, and “other.”
(Doc. 153 at
55; Gov’t Trial Ex. 59.)
77
more than 4 to 1.
Hispanics
were
The principal areas where ACSO searched more
stops
involving
moving
violations
such
as
speeding and safe movement, as well as stop sign and vehicle
registration violations.
iv.
Dr. David Banks
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.
The
Government
challenges
substance of his testimony.
Dr.
Banks’
(Doc. 153 at 90.)
qualifications
and
the
(Doc. 115 (Motion to Exclude Expert
Report and Testimony of Dr. Banks); Doc. 153 at 90–91; Doc. 158
at 110 n.29.)
objections
As with the challenge to Dr. Lamberth, those
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.
153 at 76.)
and
He received his bachelor’s degree in mathematics
anthropology
degrees
in
(Doc.
from
applied
the
University
mathematics
and
of
Virginia,
statistics
from
master’s
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.)
78
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,
Advanced
serving
Studies
and
as
the
the
director
acting
chief
of
the
Office
statistician
at
of
the
Department of Transportation, and performing risk analyses for
the U.S. Food and Drug Administration.
(Id. at 78–80.)
at
Dr.
the
Department
of
Transportation,
Banks
While
reviewed
a
written report on racial profiling on the New Jersey Turnpike at
the request of the Bureau of Justice Statistics.
He
also
worked
with
the
Fatality
Analysis
(Id. at 81.)
Reporting
System,
which is a dataset collected by law enforcement agencies.
at 81–82.)
(Id.
After his government work, Dr. Banks joined the
faculty at Duke University, where he teaches courses on data
mining and statistical inference. 42
(Id. at 80–81.)
He is not
tenured at Duke but has received offers for tenured positions at
Yale University and Penn State University.
Dr.
Banks
has
written
several
(Id. at 90.)
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.
89.)
(Id. at 82–85,
He currently serves on the Board of Directors of the
42
Dr. Banks described data mining as “a relatively modern area of
computer-intensive statistics in which you typically work on very
large datasets, and you try to make minimal assumptions on the data —
on the model that you have for the data.” (Doc. 153 at 80.)
79
American
Statistical
Association
and
as
the
editor
Journal of the American Statistical Association.
Throughout
his
career,
Dr.
Banks
has
of
the
(Id. at 86.)
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.
139–40.)
his
He has received numerous honors and awards, including
position
Association.
Dr.
case:
(Id. at
as
a
fellow
of
the
American
Statistical
(Id. at 86–87.)
Banks
performed
analyses
of
the
following
for
this
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.
(a)
ACSO’s Checkpoint Siting
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
labels.”
unlikely
(Id. at 92.)
compared
to
random
assignment
of
the
As applied to the current case, Dr.
80
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. 43
(Id. at 92–94.)
He then identified the
six Hispanic communities that ACSO allegedly targeted through
its checkpoint operations.
(Id. at 94–96.)
For each year from
2009 through 2012, Dr. Banks measured the distance from ACSO’s
checkpoints to the six Hispanic communities (id. at 93–96) and
ran a thousand simulations of ACSO’s checkpoint siting (id. at
94).
Each simulation randomly selected sites from the list of
305 actual sites and, in doing so, assumed that the list of
sites reflected all possible checkpoint sites. 44
98.)
(Id. at 94, 97–
Dr. Banks then compared the actual distance of ACSO’s
checkpoints
simulations.
for
each
year
to
the
distances
reflected
in
his
(Id. at 93–94.)
43
The total number of checkpoints conducted over the four-year period
studied was 435, indicating that some sites were used more than once.
(Doc. 153 at 93.) The Government never challenged the total volume of
checkpoints
as
being
inappropriate
or
as
any
evidence
of
discriminatory intent or conduct.
44
Dr. Banks acknowledged that the 305 locations “probably [don’t]
consist of all possible sites.”
(Doc. 153 at 97.)
The permutation
test also assumed that the selection of checkpoints was independent,
meaning that selection of one checkpoint location did not affect the
next location’s selection. (Id. at 97, 159–60.)
81
The results of Dr. Banks’ permutation test showed that 40%
of
the
simulations
randomly
placed
checkpoints
closer
Hispanic communities than ACSO’s actual checkpoint sites.
at
94–95.)
Given
these
results,
and
by
applying
to
(Id.
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.
(b)
ASCSO’s Checkpoint Stops
Dr. Banks next examined those who were stopped at ACSO’s
checkpoints. 45
He
found
that
36%
of
checkpoint involved a Hispanic driver.
the
stops
at
(Id. at 99.)
offered four reasons why this may be the case:
an
ACSO
Dr. Banks
(1) Hispanics
may be more likely to commit certain types of offenses or engage
45
As noted earlier, every motorist passes through a checkpoint. Only
those who are stopped for further, reportable action become the basis
of a stop form.
82
in certain types of behavior that could lead to a detainment at
a checkpoint; (2) Hispanics may be more likely to drive without
licenses; (3) Hispanics may be of lower socioeconomic status and
thus not register their vehicles as often or have car insurance;
and
(4)
drive.
Dr.
ACSO
may
place
checkpoints
on
roads
where
Hispanics
(Id. at 172–93, 201.)
Banks
offered
three
studies
explanation. (Id. at 174–76.)
to
support
his
first
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.”
et
al.,
Evaluation
Immigration
(Id. at 110 (referencing Thomas M. Guterbock
Study
Enforcement
of
Prince
Policy
William
(2010)).)
County’s
The
second
Illegal
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
83
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
estimate for Hispanics in Alamance County — 11.6%.
106.)
Census
(Id. at 101,
Dividing the 36% figure by the 11.6% Census estimate, Dr.
Banks derived Alamance County’s “disparity” ratio of over 3.0.
(Id. at 100, 106.)
He then repeated this calculation of ratios
for ten other (mostly nearby) North Carolina counties and the
city of Burlington (which lies within the County).
101.)
Banks
(Id. at
Comparing ratios across these other jurisdictions, Dr.
found
that,
of
the
North
Carolina
counties
(and
city)
examined, Alamance County had only the fourth largest ratio of
Hispanics
stopped
at
checkpoints
percentage estimate of Hispanics. 46
The
Government
Census data.
criticizes
to
the
unadjusted
Census
(Id. at 101–02.)
Dr.
Banks’
use
of
unadjusted
Dr. Banks testified that, while he did not know of
peer-reviewed studies using unadjusted Census data, he performed
46
Although not specifically testified to, Dr. Banks’ demonstrative at
trial showed that Caswell, Chatham, and Forsyth Counties all had
higher ratios.
84
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.
102.)
(Id. at
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.
143–45.)
performing
Because
other
“misinformative.”
he
could
“minor”
(Id.
at
not
adjust
for
adjustments
144–45.)
driving
would
Fourth,
(Id. at
behavior,
have
based
on
been
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. 47
07, 205.)
(Id. at 106–
Fifth, and most importantly, he explained that his
47
Dr. Banks provided no testimony as to how he reached this figure,
but the Government did not challenge is methodology at trial or in its
pre-trial motion to exclude his testimony and expert report.
(See
Doc. 115.)
85
analysis
“did
correct.
not
require
that
the
actual
census
count
be
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 localities].”
198.)
(Id. at 105–06,
Dr. Banks noted that, through “pooling information” on
Hispanic population figures, the U.S. Census makes the same or
similar
adjustments
estimates.
Banks
to
(Id. at 148.)
all
believed
that
nearby
counties’
population
the
Given that U.S. Census practice, Dr.
lack
of
adjustments
identical inaccuracies across counties.
caused
nearly
(Id. at 198–99.)
The court accepts Dr. Banks’ use of Census data for the
limited
purpose
Alamance
County’s
ratio to that of other North Carolina jurisdictions.
For the
reasons
so
without
of
a
cited
it
by
is
the
accepting
that
any
benchmark
analysis.
offered:
to
Government,
ratio
is
Rather,
compare
the
itself
it
is
court
does
indicative
only
Dr.
Banks’
true
relative
comparison of Census data, whose alleged internal errors are
consistent across all the examined jurisdictions, that will be
considered.
(c)
ACSO’s Checkpoint Arrests
Dr. Banks next examined ACSO arrests at checkpoints. 48
To
conduct this analysis, he randomly chose a 10% sample of ACSO’s
48
This is distinguished from Dr. MacDonald’s arrest analysis, which
focused on all arrests and not just those at checkpoints.
86
435 checkpoints conducted between 2009 and 2012, selecting 45
different checkpoints.
sample
“adequate”
higher
arrest
(Id. at 93, 111–12.)
because
rate
than
non-Hispanics
Hispanics,”
He deemed the 10%
had
which
“a
considerably
would
remarkable reversal” by the remaining arrest data.
require
“a
(Id. at 113–
14.)
For those 45 checkpoints, Dr. Banks “hand-matched” traffic
stop
forms
checkpoint
to
arrest
arrests
reports
and
found
to
that
determine
110
occurred there.
(Id. at 112, 165–66.)
Hispanics
arrested
“were
Hispanics.”
intervals
for
overlapped,
viewpoint
them.
(Id.
he
there
at
the
two
determined
cannot
However,
groups
be
stops
less
said
from
to
often
because
(Hispanic
that
and
number
21
of
arrests
His results showed that
conspicuously
112.)
the
be
a
any
and
his
than
non-
confidence
non-Hispanics)
purely
statistical
difference
between
(Id. at 112–13.)
(d)
Dr.
traffic
Banks’
stops.
fourth
In
ACSO’s Traffic Stops
study
this
examined
analysis,
Dr.
ACSO’s
Banks
non-checkpoint
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
87
“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
population. 49
(Id.)
compared
Because
to
this
their
proportion
calculation
for
of
the
Alamance
County employed the unadjusted Census data as a benchmark, the
court
does
earlier.
not
consider
However,
Dr.
it
reliable
Banks
made
for
the
similar
reasons
noted
for
(Id. at 115–16.)
fourteen other North Carolina counties.
calculations
In
comparing the results across the counties, Dr. Banks found that
eight of the counties had higher ratios than Alamance County.
(Id.)
Specifically,
“extraordinarily
he
found
favorably”
to
which he termed “suspicious.”
According
to
Dr.
that
Alamance
Orange
and
County
Randolph
compared
Counties,
(Id.)
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.”
This is an overstatement.
(Id. at 116.)
While Dr. Banks’ analysis in this
49
Sheriff Johnson did not move the admission of Exhibit 79, and Dr.
Banks did not testify to any numerical values.
88
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.
(e)
Finally,
Dr.
citation ratio.”
Banks
ACSO’s Citations
analyzed
what
he
termed
a
“Hispanic
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. 50
123.)
(Id. at
A ratio of 1.0 would reflect a completely ethnic-neutral
citation rate.
(Id.)
The ratio for Alamance County was “above
one,” 51 which “suggests that Hispanics are receiving citations at
a higher rate in the population” than non-Hispanics.
(Id.)
By
comparison, Alamance County’s ratio was less than that of three
other counties he compared. 52
(Id. at 123–24.)
Orange County
had a ratio “a little bit less than three” and Randolph County’s
50
It appears that these were for citations at checkpoints only, but
that is not entirely clear. (See Doc. 153 at 168–69.)
51
Sheriff Johnson never moved the admission of Def. Trial Ex. 80, but
the court notes the ratio was between one and two.
52
Although not specifically testified to, Dr. Banks’ demonstrative at
trial showed that he had calculated the ratios for nine other North
Carolina counties and the city of Burlington, making Alamance County’s
ratio larger than six counties.
89
ratio
was
“extremely
elevated.” 53
(Id.)
Based
on
this
comparison, Dr. Banks opined that Alamance County’s ratio was
not
“suspicious,”
especially
compared
counties with “clearly larger” ratios.
to
the
extent
Dr.
Banks
used
the
to
those
other
(Id. at 123–25.)
unadjusted
Census
three
Again,
data
to
compute a figure for Alamance County, it would be an improper
benchmark for reaching a conclusion about the County alone; but
to the extent he used the unadjusted Census data across multiple
jurisdictions,
the
court
will
consider
that
for
the
limited
purpose it is offered.
C.
Evidence of Racial and Ethnic Bias Within ACSO
The evidence of ethnic/racial bias regarding Hispanics at
ACSO
was
speaking
conflicting.
Hispanic
of
ACSO
Cuban
Sergeant
descent
Dan
who
Cubino,
was
an
a
Spanish-
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,
Hispanics.
or
direct,
any
discriminatory
(Doc. 152 at 130–31, 155.)
action
against
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
53
While Randolph County’s large ratio would give him “concern,” Dr.
Banks stated that it would require further analysis to “try and figure
out why there was an elevated rate.”
(Doc. 153 at 125.)
Dr. Banks
did not argue that this comparison was proof of discrimination or lack
of discrimination, apparently conceding that further investigation was
necessary.
90
patrol officer — echoed Sergeant Cubino’s assessment of ACSO.
(Doc.
153
at
neighborhoods
212–13.)
in
Detective
Alamance
Rossi
County
discrimination toward Hispanics.
and
worked
the
never
Hispanic
observed
(Doc. 154 at 4.)
any
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
ethnicity,
Government
suggests
characterized
his
was
stopped
treatment
by
because
ACSO
of
officers
his
as
“excellent” when responding to his calls after home break-ins.
(Doc. 147 at 194.)
presence.
(Id.
In fact, his wife was reassured by their
at
194–95.)
This
is
contrary
to
the
Government’s generalized allegation that Hispanics in the County
are
distrustful
supported
by
of
and
Detective
fear
Rossi’s
law
enforcement
testimony,
but
further
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
91
was his experience that much of their hesitation is attributable
to
cultural
differences,
police distrust.
Director
of
handles
most
with
many
(Id. at 8, 15.)
Personnel
citizen
Captain
coming
cultures
of
Finally, according to ACSO
Richard
complaints,
from
ACSO
Longamore,
has
never
Jr.,
who
received
a
complaint of racial profiling or any type of complaint from an
individual speaking Spanish.
ACSO
has
officers.
repeatedly
(Doc. 152 at 196–97.)
attempted
to
hire
more
(Doc. 152 at 197, 199–200; Doc. 154 at 5.)
Hispanic
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.
efforts,
ACSO
language
(Id. at 197–99.)
recently
classes
to
began
to
improve
In addition to recruiting
offer
language
its
officers
skills
and
Spanish
better
understand Spanish-speaking culture — an idea originating from
Sheriff Johnson and Chief Deputy Britt.
at 14–16, 217.)
(Id. at 195; Doc. 153
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
92
will often field calls from Spanish-speaking residents.
(Doc.
152 at 195–96.)
Sheriff
Johnson
himself
ACSO’s outreach programs.
has
been
personally
involved
in
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.
at 72.)
(Doc. 154
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
Hispanics,
and
there
have
emails
of
character.
been
jokes
derisive
similar
of
pejorative
Most of this conduct occurred within the ACDC — not
the patrol division — of ACSO.
1.
In
Racial and Ethnic Epithets and Jokes
its
complaint,
discriminatory
officers.
claimed
eaters,”
statements
(Doc.
that
that
the
1
Sheriff
he
Government
made
by
¶¶ 31–33.)
Johnson
“lamented
Sheriff
For
to
increased
a
number
Johnson
example,
referred
the
alleged
the
ACSO
Government
Hispanics
Latino
and
of
as
“taco
presence
in
North Carolina’s workforce and public schools,” and that ACSO
officers
threatened
residents
with
93
deportation
on
multiple
occasions.
no
(Id. ¶¶ 31, 33.)
evidence
to
support
At trial, the Government presented
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;
Gerry
Helms
attributing use of word to Major Miles); Doc. 153 at 7). 54
Major
Miles
as
also
Doc.
heard
150
at
102
multiple
uses
(former
of
the
officer
term
“wets”
a
descriptor for Hispanics, but those individuals using the term
were mostly federal ICE agents.
(Doc. 149 at 218.)
Former
officer Gerry Helms also heard other ACSO officers use the terms
“taco” and “Mexicant,” referring to Hispanics.
103–04.)
(Doc. 150 at
Finally, several officers heard the term “Mexican” to
refer to Hispanics generally.
(See, e.g., Doc. 147 at 160–61;
Doc. 149 at 137.)
Beyond
epithets,
some
ACSO
54
officers
also
sometimes
made
Two officers said they also heard the term “Tonk.” (Doc. 149 at 136
(noting that, while ACSO officers used the term, the epithet
originated with an ICE agent), 218 (commenting that this term was used
only by ICE agents).) The Government, however, elicited no testimony
as to what it contends this meant. (See id. at 144 (Lieutenant Denham
testifying that he does not know what the word “Tonk” means).)
94
jokes and derogatory comments about Hispanics.
Officers
Anthony
and
Helms
heard
other
racially and ethnically insensitive jokes.
150 at 104–05.)
ACSO
For example,
officers
tell
(Doc. 148 at 9; Doc.
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).
Lloyd
heard
(Lieutenant
patrol
officers
Denham
derogatory terms).)
But see Doc. 147 at 160 (Officer
use
similarly
epithets);
heard
Doc.
patrol
149
at
officers
136
use
Such evidence came largely from current and
former officers in ACSO’s detention division — not those in the
traffic enforcement division.
Denham
spent
time
both
as
an
(Doc. 149 at 126–27 (Lieutenant
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
95
or
that
Hispanic
individuals may have heard insensitive terms and jokes.
150
at
65–66,
113.)
Most
accounts
were
that
ACSO
(Doc.
officers
uttered such epithets outside the presence of a Hispanic person.
(See, e.g., Doc. 147 at 160; Doc. 149 at 224.)
2.
In
Derogatory Emails
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.
at 14; Gov’t Trial Ex. 20.)
(Doc. 150
He thought the email was “amusing”
and, as a military veteran, respectful to the military.
150 at 15, 27.)
(Doc.
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.
96
. . .
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
of his supervisee officers.
Trial Ex. 51.)
shooting
game
(Doc. 149 at 234–35, 238; Gov’t
Titled “Border Patrol,” the video game was a
with
the
objective
of
shooting
people
running
across a river toward a shore bearing a sign reading, “Welcome
to the United States.”
(Doc. 149 at 235; Gov’t Trial Ex. 51.)
According to Officer Wiley, the people running across the screen
were
Mexicans.
(Doc.
149
at
236.)
Although
Officer
Wiley
claims that he and any others playing the game “didn’t pay a
whole lot of attention of [those] running,” this is not credible
(id. at 236–37) — the game labelled the runners as “Mexican
Nationalists,”
“drug
smugglers,”
offensively as “breeders.”
or,
in
(Id. at 239.)
the
case
of
women,
After the conclusion
of a game, the final screen tells the player how many “wetbacks”
were shot.
(Id. at 240–41; Gov’t Trial Ex. 51.)
The use of the
game appears limited to certain persons within the ACDC, and
there is no evidence that Sheriff Johnson or any senior ACSO
officer was aware of the game until it was discovered during
97
Officer Wiley’s deposition in this case.
was
discovered,
Sheriff
Johnson
met
When use of the game
with
Officer
Wiley,
who
agreed to step down several ranks with a corresponding 9% pay
reduction.
(Doc. 149 at 245–46; Doc. 154 at 61–62.)
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.”
Ex. 23.)
Chief
Officer Jones sent the email to several supervisors —
Deputy
Longamore.
(Doc. 150 at 54; Gov’t Trial
Britt,
Captain
(Doc. 150 at 54.)
Robert
Wilborn,
and
Captain
The email read:
The United States Border Patrol is asking citizens to
keep on the lookout for a red 1951 Chevy that they
suspect is being used to smuggle illegal immigrants
across the border from Mexico and into points along
the U.S. border.
If you see the vehicle pictured
below and have reason to believe that it is the
suspect vehicle, you are urged to contact your local
Police Department or the U.S. Border Patrol.
(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-soclever 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”
98
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[ 55] Take on Slow Response” and tells
of observing two men — a “Muslim extremist” carrying guns and
bombs, and a “Mexican” with a “large backpack of drugs . . .
strapped to his back” — drowning in the Rio Grande River due to
their
loads.
(Gov’t
Trial
Ex.
22.)
The
text
notes
that
“[b]eing a responsible Texan . . . I informed the El Paso County
Sheriff’s Office and Homeland Security” but that, after several
hours of no response, both have drowned and “I’m starting to
think I wasted two stamps.”
(Id.)
Officer Jones said he sent
the email because he thought it exemplified the irony in the
groups
that
elements
represented
in
traffickers.”
our
“two
of
society”:
the
“armed
most
dangerous
terrorists”
criminal
and
“drug
(Doc. 150 at 56.)
On August 23, 2012, Lieutenant Hoover — now a supervisor in
ACSO’s
Special
Services
division
—
forwarded
another
email
titled “Texans” to two subordinates in ACSO’s Animal Control
division.
(Doc. 150 at 16–17; Gov’t Trial Ex. 117.)
The body
of the email begins with the title “The Dallas Solution” and
told
55
a
story
of
a
homeowner’s
association
embroidering
Sam Elliott is an American actor who plays in westerns.
99
the
letters “INS” (ostensibly for “Inner Neighborhood Services” and
not “Immigration and Naturalization Service”) onto hats.
150 at 18; Gov’t Trial Ex. 117.)
(Doc.
The story continues that
members of the homeowners association, upset with construction
debris
left
nearby
and
wearing
the
“INS”
hats,
approached
“Mexican construction workers” in hopes of scaring them.
150 at 18–21.)
“not
about
(Doc.
Lieutenant Hoover testified that the email was
scaring
off
Mexican
workers”
but
“stopping the trash and cleaning up the trash.”
rather
about
(Id. at 21–22.)
This explanation is not credible.
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:
The clientele were most certainly 99.44% coethnic illegal aliens themselves. Do the “gag me with
a spoon” fifth grade arithmetic — 25 “polvitos” per
day times 22 days per month times 12 months per year
times 11 female sex slaves equals quite a few
undesirable illegal aliens.
And this is just ONE
small subset of an operation that just happened to be
busted by a largely Anglophone police intelligence
network.
Eliminate the young male illegal aliens and
a
very
substantial
portion
of
their
co-ethnic
prostitutes
and
sex
slaves
will
self
deport.
100
Unfortunately for the American taxpayer, the 11 female
sex slaves in this case (and many others) will get to
stay
in
the
US
under
the
“U”
Visa
program
(undocumented victims and witnesses).
What will our
society be able to do with young Mesoamerican females
who at best are semi-literate in any language and only
have experience milking cows and working as captive
sex slaves.
(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
(Id. at 210.)
Deputy
Britt
“for
informational
purposes.”
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.”
37,
43;
Gov’t
Trial
Ex.
21.)
Corporal
Meyers
anything to the text of the original email.
original
email
began,
“THE
(Doc. 150 at 36–
did
not
add
(Gov’t Trial Ex.
21.)
The
ORIGIN
OF
PROFILING.”
(Id.)
It then described a scene between historical figures Davy
Crockett, William B. Travis, and Jim Bowie at the Alamo.
As
the
group
looks
out
over
“the
hordes
of
Mexicans
(Id.)
moving
towards the Alamo,” Davy Crockett says to Jim Bowie, “Jim, are
we,
by
any
chance,
having
landscaping
101
done
today?”
(Id.
(quotation marks omitted).)
email,
without
maintenance
additional
director.
Lieutenant Anderson forwarded the
text,
(Doc.
150
to
Greg
at
Shattery
ACSO’s
Corporal
42.)
—
Meyers
testified that he did not believe the email to be derogatory or
a slur.
D.
(Id. at 44.)
This is not credible, either.
In
ACSO’s Supervision and Discipline of Its Officers
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. 56
(Doc. 151 at 21.)
She
specifically provided testimony on (1) whether ACSO had policies
and
training
to
limit
discriminatory
policing,
and
(2)
what
measures ACSO took in light of complaints about discriminatory
policing.
(Id.
at
22–23.)
To
reach
her
opinion
on
these
issues, Frasier reviewed ACSO’s entire policy book, including
its harassment policy, read through witness depositions selected
in part by the Government, and met with Government attorneys.
(Id. at 23, 61, 73.)
Frasier also visited Alamance County for
56
Sheriff Johnson originally challenged Frasier’s law enforcement
qualifications as to her familiarity with North Carolina law.
(Doc.
151 at 21–22.)
This court allowed Frasier to testify subject to a
later motion by Sheriff Johnson. (Id. at 22.) Sheriff Johnson never
subsequently objected to Frasier’s qualifications.
102
about six or seven hours but met exclusively with Government
witnesses — several of whom were members of the advocacy group
Fairness Alamance — to further inform her opinion.
61.)
During her brief visit, Frasier did not meet with any
current ACSO patrol officers or visit ACSO.
With
(Id. at 60–
Frasier’s
expert
testimony
and
the
(Id. at 58–60.)
testimony
of
ACSO
officers, the evidence at trial established the following facts
on ACSO’s supervision and discipline.
1.
Supervision
ACSO has several policies meant to supervise the conduct of
its officers.
a.
ACSO
ACSO’s Complaint Policy
implements
a
citizen
complaint
conjunction with its disciplinary policy.
16.)
The
guidelines
purpose
and
investigating,
and
of
the
procedures
for
adjudicating
against [ACSO] personnel.”
from “any source.”
complaint
(Id. at 2.)
in
(See Def. Trial Ex.
policy
“is
to
receiving,
allegations
(Id. at 1.)
procedure
and
establish
reporting,
complaints
ACSO accepts complaints
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
103
report the complaint to his or her supervisor.
16
at
2.)
All
complaint form.
complaints
received
require
(Def. Trial Ex.
completion
of
(Doc. 154 at 46; Def. Trial Ex. 16 at 2.)
a
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.
47.)
(Doc. 152 at 188; Doc. 154 at 46–
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
known
investigations,
require
preliminary
“Supervisory
investigation
warranted, by the supervisor.
Ex. 16 at 2–3.)
as
and
possible
Investigations,”
discipline,
if
(Doc. 152 at 190–91; Def. Trial
The chief deputy then reviews the complaint,
investigation, and any discipline.
Trial Ex. 16 at 2–3.)
(Doc. 152 at 190–91; Def.
If satisfied, the chief deputy signs off
on the complaint, but if not, he returns the complaint to the
supervising officer for further investigation.
(Doc. 152 at
190–91.)
If, however, the complaint relates to an “ethical issue,”
it is handled by ACSO’s Office of Professional Standards.
154 at 47; Def. Trial Ex. 16 at 1–2.)
civil rights violations.
(Doc.
Ethical issues include
(Def. Trial Ex. 16 at 1–2.)
Under
this type of investigation, an internal investigative officer
104
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.
47.)
(Doc. 154 at
After investigation, the internal investigation officer
classifies
the
“exonerated,”
Sustained
complaint
or
as
“sustained.”
complaints
or
“unfounded,”
(Def.
allegations
Trial
are
“unresolved,”
Ex.
handled
“Rules of Conduct/Disciplinary Procedures” policy.
retains
minor.
all
complaints,
even
those
found
to
be
16
at
under
6.)
ACSO’s
(Id.)
ACSO
unfounded
or
(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.)
Johnson sometimes reviewed video records as well.
ACSO,
however,
records.
had
no
policy
regarding
the
Sheriff
(Id. at 91.)
review
of
video
(Id. at 50.)
b.
ACSO’s Review of Stops, Arrest, and Searches
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
105
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.
For
traffic
(Id. at 147.)
stops,
since
at
least
2009,
Captain
Wilson
collects daily traffic stop forms filled out by ACSO officers.
(Id. at 141–42.)
County
Central
She then compares those reports to an Alamance
Communications
Department
aided dispatch or “CAD report”).
(Id.)
report
(a
The CAD report logs all
stops radioed over the County’s communication system.
a
stop
appears
in
the
CAD
report
computer-
that
does
(Id.)
not
have
If
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.)
identified
an
Similarly,
Her review of CAD reports has never
unconstitutional
Captain
Wilson
stop.
conducts
106
no
(Id.
at
substantive
144–45.)
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
occasionally
reports.
check
looked
of
ACSO
through
(Id. at 175–78.)
traffic
traffic
stop
stop
forms,
forms
but
and
he
arrest
A lieutenant under Captain Wilson in
the patrol division, Gerry Williams, testified that he also did
not review stop forms for adequate legal justification.
130.)
(Id. at
Rather, he relied on Captain Wilson to do so.
(Id.)
Captain Wilson has returned officers’ incomplete stop forms to
him
but
never
justification.
Several
because
of
a
deficiency
in
a
stop’s
legal
(Id. at 131.)
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.”
at 156.)
the
legal
(Id.
Sheriff Johnson similarly believed that challenges to
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.”
107
(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. 152 at 93–94.)
(Doc. 149 at 169;
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,
officers.
formal
ACSO
From
reviews
County.
conducts
about
2004
because
154
to
they
at
2009,
were
153.)
no
evaluations
ACSO
stopped
longer
ACSO
did
of
its
conducting
required
by
the
conduct
informal
performance reviews during that time period, however.
(Id. at
93.)
(Doc.
performance
Starting in 2009, ACSO — of its own accord — reinstituted
formal annual performance reviews of its officers.
153–54.)
(Id. at 151,
Neither party has submitted evidence on the substance
of these performance reviews.
According
citations,
to
Frasier,
arrests,
and
standard
searches
review
includes
of
traffic
the
review
makeup of those stopped, cited, arrested, or searched.
151
at
25–26,
79–80.)
That
108
review
should
also
stops,
of
the
(Doc.
include
evaluation
of
the
standards
applied
by
arrests, citations, stops, and searches.
c.
ACSO
submits
officers
in
making
(Id. at 27, 79–80.)
ACSO’s Traffic Stop Data Reporting
monthly
reports
of
its
traffic
stop
data,
including race and ethnicity information, to the North Carolina
SBI. 57
(Doc. 150 at 148.)
submitting this data.
Captain Wilson is responsible for
(Id.)
For several months from 2009 to
2012, in addition to sending data to the SBI, Captain Wilson
also sent a summary report of traffic stops to Sheriff Johnson
and Chief Deputy Britt.
organized
(Id. at
the
148,
data
sent
162–63.)
(Id. at 148–49.)
to
the
However,
SBI
Her additional report
into
neither
percentage
Sheriff
figures.
Johnson
nor
Chief Deputy Britt followed up with her on either the original
data or Captain Wilson’s additional reports.
(Id. at 149.)
It
turns out that the data Captain Wilson sent to Sheriff Johnson
and Chief Deputy Britt was the same as the data sent to the SBI,
so her report was duplicative.
Deputy
Britt,
through
Major
(Id. at 158.)
Holland,
Eventually, Chief
determined
that
the
additional report was not needed, and Captain Wilson stopped
sending it.
(Id. at 149–50.)
All ACSO data sent to the SBI is
57
As noted earlier, because of software changes, ACSO underreported
its traffic stop data to the SBI for a time. (Doc. 154 at 20.) Once
made aware of the problem, Chief Deputy Britt reported the problem to
the SBI. (Id.) To remedy the problem, ACSO implemented new software
and created additional administrative review to ensure that it
reported all officer stops. (Id.)
109
posted by the North Carolina Attorney General on its website,
along
with
data.
all
state
law
enforcement
(Doc. 154 at 21.)
agencies’
ACSO
stop
In addition, ACSO recently began
posting its traffic stop data on its own website.
d.
traffic
(Id.)
ACSO’s Training of Its Officers
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
officers attend twenty-four hours of training annually.
152 at 177; Doc. 154 at 66.)
that
(Doc.
From 2009 to 2012, that mandatory
training included a two-hour course for “juvenile and minority
sensitivity training,” known as “JMST.”
ACSO
required
its
officers
to
attend
session.
(Def. Trial Exs. 21–24.)
received
State-mandated
training
(Doc. 152 at 177–78.)
that
two-hour
training
In 2012, ACSO officers also
in
“traffic
interdiction.”
(Doc. 152 at 182; Def. Trial Ex. 24.)
In
addition
implemented
Johnson.
to
significant
Prior
to
the
State-mandated
supplemental
Sheriff
training
Johnson’s
received little training and instruction.
110
training,
tenure,
ACSO
under
Sheriff
ACSO
officers
(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.
ACSO
officers
throughout
the
(Doc. 154 at 66.)
attended
over
country.
450
(Def.
From 2009 to 2012,
officer
Trial
Ex.
training
14.)
schools
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
likely
training,
to
officers
undercover
drug
could
more
trafficking
crimes.
(Doc. 150 at 123–24, 132.)
Latino”
is
indicators
not
an
suggested
indicator.
possible
and
other
make
stops
drug-related
He made clear that “being
(Id.
drug
effectively
at
123-24.)
trafficking,
If
the
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.”
111
(Id.
at 132–33.)
Lieutenant Williams explained that he drew on this
drug interdiction training when making stops.
e.
(Id. at 123.)
ACSO’s Harassment Prevention Policy
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.”
particular,
person
the
harassment
because
of
policy
gender,
bans
race,
(Id. at 1.)
“[h]arassment
color,
age,
of
In
any
religion,
disability, ancestry or national origin” whether that harassment
is “directed at an employee, vendor, or customer.”
4.)
(Id. at 3–
The policy goes on to list examples of prohibited conduct,
including “racial and ethnic slurs or offensive stereotypes and
making jokes about these characteristics.”
policy
requires
that
a
violation
of
the
(Id. at 4.)
policy
“be
The
reported
promptly” unless the victim chooses to handle the situation on
his or her own.
(Id. at 5.)
f.
Implementation of Email and Video
Filtering Software
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.
112
(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.)
2.
Discipline
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:
A Class D violation would be basically a verbal
reprimand, or it could be a plan of corrective action.
A Class C reprimand would be a written reprimand,
which it could be a written reprimand that would go in
their personnel file.
A Class B violation could be
one to two days off, suspension without pay; and a
Class A violation could be a combination of both, up
to three days off without pay, including demotion or
termination.
(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.)
113
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.
number
of
circumstances,
wrongdoings,
which
ACSO
disciplined
included
its
racially
officers
and
inappropriate epithets, jokes, statements, and emails.
In a
for
ethnically
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.
racial
(Doc. 147 at 201; Doc. 154 at 78.)
slur
received
discipline
(Doc. 154 at 78–79, 143—44.)
for
his
The officer using the
statement
as
well.
Sheriff Johnson denied a promotion
to Lieutenant Anderson for his use of a racially insensitive
joke.
sexual
(Doc. 150 at 44–46.)
harassment.
(Doc.
ACSO demoted Corporal Nicholson for
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.
114
(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. 154 at
48 (noting discipline occurring because of citizen complaints).)
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.
115
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.).)
3.
In
her
lacked
Margo Frasier
expert
opinion,
adequate
practices
Frasier
and
concluded
that
procedures
ACSO
to
(1)
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.)
of
relying
review
to
exclusively
detect
She particularly criticized the practice
on
a
magistrate
discriminatory
or
policing.
district
(Id.
at
attorney
27–28.)
According to Frasier, magistrate and district attorney review
116
insufficiently scrutinizes law enforcement practices. 58
(Id. at
28–29.)
Frasier also critiqued Captain Wilson’s matching of CAD
reports
to
traffic
stop
reporting as inadequate.
forms
and
ACSO’s
(Id. at 32–33.)
method
of
data
While recognizing
that ACSO reported all of its data to the SBI, Frasier opined
that Captain Wilson and ACSO should have conducted some sort of
analysis of the data.
(Id. at 32–33, 98.)
Frasier, however,
offered no testimony as to what ACSO should have done in its
review or what other law enforcement agencies do with their stop
data.
(Id. at 27 (describing the analysis as “burrowing down
and seeing whether or not you’re treating people differently”).)
Finally,
Frasier
stated
that
ACSO
should
not
leave
its
stop, arrest, and search practices to officer discretion.
(Id.
at
have
38–40.)
Instead,
Frasier
opined
that
ACSO
should
implemented systematic review of officer stops, citations, and
arrests.
(Id. at 25–27.)
For Frasier, that systematic review
should occur regardless of whether the law enforcement agency
believes discriminatory policing is, in fact, occurring.
at 31.)
(Id.
For review of traffic stops, Frasier believed that a
law enforcement agency should have “a policy on traffic stops,
58
Frasier testified that magistrates and district attorneys “often
never” report discriminatory policing.
(Doc. 151 at 29.)
This
opinion is contrary to the testimony of District Attorney Nadolski
(called
by
Sheriff
Johnson),
who
testified
he
would
report
discriminatory policing if he observed it.
(Doc. 152 at 93–94.)
Magistrate Wortinger was never asked whether she would report
discriminatory policing.
117
as far as the facts of how they’re to be conducted.”
34.)
(Id. at
As to an arrest policy, she testified that arrests should
require supervisor approval.
no
opinion
on
profiling.
a
search
(Id. at 34–35.)
policy
that
would
Frasier offered
adequately
curb
She further suggested that, to find “the general
premise of policies and what sort of policies you would have,
. . . you can find a template for policies on the web.”
(Id. at
69.)
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.)
weekly
Frasier also appeared unaware of Sheriff Johnson’s
meetings
with
District
Attorney
Nadolski,
but
that, if they did meet, that would be “a good thing.”
86;
see
also
Doc.
152
at
88
(District
Attorney
agreed
(Id. at
Nadolski
acknowledged working with Sheriff Johnson “often.”); Doc. 154 at
82
(Sheriff
Johnson
stating
Nadolski on a weekly basis).)
he
met
with
District
Attorney
Lastly, she did not say whether
118
the
training
Carolina
ACSO
officers
satisfied
her
received
concerns
from
not,
or
the
State
and
it
of
is
North
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
should require training for those violating that policy.
at
40,
42.)
organization
occurs.
She
advocated
that
vocally
condemn
should
(Id. at 42.)
those
any
at
the
top
violation
and
(Id.
of
an
when
it
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.”
41,
45–46.)
comments
She
and
acknowledged,
jokes
continue
however,
to
occur
that
in
these
law
(Id. at
types
of
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
unaware
of
and
ACSO’s
improper
adoption
slurs
of
made
email
within
filtering
ACSO,
she
was
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.”
91.)
(Id. at
She also admitted to being unaware of Sheriff Johnson’s
119
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,
about
law
Frasier
critiqued
enforcement
ACSO’s
profiling.
response
She
to
stated
complaints
that
a
law
enforcement agency faced with complaints should not ignore them
but rather address them.
(Id. at 25.)
More specifically, she
testified that a law enforcement agency should “strengthen” its
policy.
receiving
(Id. at 37–38.)
complaints
“conversation”
with
to
Frasier urged a law enforcement agency
“sit
them.
down
(Id.
with
at
critics”
51–52.)
and
have
Without
a
this
reaction, Frasier opined, the community would come to distrust
law enforcement.
(Id. at 55–56.)
In her opinion, ACSO failed
to make adequate efforts at community outreach.
(Id. at 54.)
Frasier, however, again appeared to be unaware of certain
efforts
undertaken
acknowledged
she
by
was
ACSO.
unaware
Of
“that
particular
the
[S]heriff
note,
she
met
with
[Professor] Roselle and Fairness Alamance” over their complaint.
(Id. at 63.)
with
She allowed, though, that if Sheriff Johnson met
Professor
Roselle
“applaud[ed] him.”
(Id.)
and
Fairness
Alamance,
then
she
As noted previously, Sheriff Johnson
did in fact met with Professor Roselle and Fairness Alamance on
120
more than one occasion.
Frasier also acknowledged that Sheriff
Johnson investigated Professor Roselle’s complaint regarding the
underreporting
of
stop
data
problem in the computer data.
of
Sheriff
should
do
(Id.)
Johnson’s
. . .
when
Although
security
at
action
fields
corrected
an
(Id. at 66–67.)
as
somebody
appearing
soccer
and
“the
sort
raises
a
unaware
of
frequently
underreporting
Frasier approved
of
thing
legitimate
ACSO’s
attended
that
concern.”
provision
by
you
of
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.
II.
CONCLUSIONS OF LAW
Based
on
the
above
facts
and
any
further
facts
noted
hereafter, the court makes the following conclusions of law.
A.
Motion to Exclude Dr. Lamberth’s Testimony
As a preliminary matter, the court must resolve Sheriff
121
Johnson’s
motion
to
exclude
the
testimony
of
Lamberth. 59
Dr.
(Docs. 127–28, 142–44.)
Sheriff
Johnson
qualifications,
only
does
not
the
challenge
admissibility
Dr.
Lamberth’s
his
testimony.
of
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.
Johnson
renewed
testimony.
his
motion
at
(Doc. 148 at 36.)
(Doc. 156 at 2.)
trial
during
Dr.
Lamberth’s
The court deferred decision until
after Dr. Lamberth’s direct and cross-examination.
37.)
Sheriff
(Id. at 36–
Counsel elected to withhold argument on the motion until
the close of the Government’s case.
hearing
argument
on
the
motion
(Id. at 189–90.)
following
Government’s case, the court reserved ruling.
31; Doc. 152 at 4–14, 57.)
the
close
After
of
the
(Doc. 151 at 230–
With the entirety of Dr. Lamberth’s
testimony now before it and after careful consideration, this
court concludes that the testimony is unreliable as applied to
59
Sheriff Johnson also moved to exclude Dr. Lamberth’s expert reports
which, although hearsay, were never offered at trial.
122
this case and will grant Sheriff Johnson’s motion to exclude it.
1.
Admissibility
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 (1993); see also Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 147 (1999).
opinion
must
specialized
be
based
knowledge
be
on
and
scientific,
not
derived
on
using
“A reliable expert
technical,
belief
or
or
other
speculation,
scientific
or
other
and
inferences
must
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)).
function,
the
Supreme
exhaustive
factors
To
Court
useful
for
has
guide
this
identified
evaluating
the
“gatekeeping”
several
non-
reliability
of
proposed expert testimony, which include:
(1) whether a theory or technique can be or has been
tested; (2) whether it has been subjected to peer
review and publication; (3) whether a technique has a
high known or potential rate of error and whether
there are standards controlling its operation; and (4)
whether
the
theory
or
technique
enjoys
general
acceptance within a relevant scientific community.
Id. at 199 (citing Daubert, 509 U.S. at 592–94).
The Government
must establish the admissibility of Dr. Lamberth’s testimony by
“a preponderance of proof.”
Id.
123
a.
Testability
“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.
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
Hispanics, like the one performed by Dr. Lamberth.
Jobard
et
al.,
Measuring
Appearance-Based
studies
of
See Fabien
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
124
Violators
at
Probability
Extraordinary
&
Risk
139,
Rates
142–44
in
New
(2009)
Jersey?,
(mobile
8
Law,
observational
study comparing African-American drivers, not Hispanic drivers,
to
non-African-American
Race,
Drugs,
Delivery
and
Policing:
Arrests,
(observational
individuals
drivers);
44
study
either
Katherine
Criminology
involving
al.,
in
Drug
105,
Hispanics
self-reporting
et
Disparities
Understanding
Beckett
their
110–15
but
only
ethnicity
or
(2006)
involving
observed
while standing in “outdoor drug market”).
The
cases
testability
of
shortcomings.
612,
cited
644
Dr.
by
the
Lamberth’s
Government
study
to
suffer
suggest
from
the
similar
See Chavez v. Illinois State Police, 251 F.3d
(7th
Cir.
2001)
(citing
article
discussing
Dr.
Lamberth’s work observing African-American drivers); Md. State
Conf. of NAACP Branches v. Md. Dep’t of State Police, 72 F.
Supp.
2d
560,
566
(D.
Md.
1999)
(referencing
“statistics”
without any mention of how those statistics were calculated or
what they measured and applying no evidentiary standard to those
statistics); Commonwealth v. Lora, 886 N.E.2d 688, 700–02 (Mass.
2008)
(mentioning
Dr.
Lamberth’s
study
observing
African-
American drivers); State v. Ballard, 752 A.2d 735, 742–45 (N.J.
Super.
Ct.
App.
Div.
2000)
(accepting,
on
a
request
for
discovery and not on the merits, an observational study by Dr.
Lamberth involving Hispanics but offering no information on the
125
study’s features, making it difficult to derive much persuasive
value from the decision); State v. Soto, 734 A.2d 350, 352–57
(N.J.
Super.
Ct.
Law
Div.
1996)
(analyzing
Dr.
Lamberth’s
observational benchmark work regarding African-American, but not
Hispanic, drivers).
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.
593.
See Daubert, 509 U.S. at
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,
description was used to identify Hispanics in his study.
148 at 181.)
or
(Doc.
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. 60
Dr.
Lamberth’s
views
of
study
Rivera
thus
and
relies
Valdez
entirely
and
their
on
the
subjective
personal,
totally
subjective say-so of who should be considered “Hispanic.”
result,
it
not
only
cannot
be
determined
60
who
was
As a
considered
When asked for his own definition of Hispanic, Dr. Lamberth
responded, “[T]he Census Bureau basically indicates that people who
self-identify as Hispanics are Hispanics.”
(Doc. 148 at 129–30.)
Yet, as he admits, it is virtually impossible to track down those in
the observational study to have those individuals self-identify as
Hispanic.
(Id. at 59 (stating that he “[a]lmost never” has the
opportunity to ask drivers their race or ethnicity).)
126
“Hispanic,” but the method used cannot be independently tested.
These
flaws
render
the
study
unreliable.
See
Brown
v.
Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 772–73 (7th Cir.
2014) (upholding district court’s exclusion of expert testimony
because that testimony relied on “subjective experience instead
of
a
proper
scientific
approach”);
Durkin
v.
Equifax
Check
Servs., Inc., 406 F.3d 410, 420–22 (7th Cir. 2005) (excluding
expert testimony as “untestable say-so”); R.F.M.A.S., Inc. v.
So,
748
F.
Supp.
2d
244,
282–83
(S.D.N.Y.
2010)
(excluding
expert testimony that was “little more than conclusory say-so”).
The
pointing
Government
to
Dr.
attempts
Lamberth’s
to
downplay
opinion
that
this
the
failing
errors
in
by
his
benchmark would have to be wrong by “about 400 percent or more”
to
destroy
the
statistical
(Doc. 148 at 109–10.)
significance
of
his
conclusions.
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”
produced
“an
unknown error rate” and lacked reliability); KW Plastics v. U.S.
Can Co., 131 F. Supp. 2d 1289, 1294 (M.D. Ala. 2001) (concluding
that “an unknown error rate” rendered an expert’s methodology
127
unreliable).
invitation
Thus, the court declines to accept this beguiling
to
ignore
the
fundamental
flaw
in
Dr.
Lamberth’s
methodology.
b.
Peer Review
Similarly, Dr. Lamberth has not demonstrated adequate peer
review
and
publication
supporting
methodology in this case.
the
application
of
his
See Daubert, 509 U.S. at 592–94.
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,
attempted
to
observe
Hispanics
roadside,
as
in
case.
this
African-Americans
to
in
none
passing
Rather,
those
studies
from
involved
most
vehicles
non-African-Americans,
reliable methods of observation.
of
comparing
or
utilized
the
more
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-AfricanAmerican
drivers);
(observational
individuals
while
study
either
standing
Beckett
in
et
involving
supra,
Hispanics
self-reporting
“outdoor
al.,
drug
their
but
at
only
ethnicity
market”);
see
or
also
110–15
involving
observed
David
A.
Harris, The Stories, the Statistics, and the Law: Why “Driving
While
Black”
Matters,
84
Minn.
128
L.
Rev.
265,
277–88
(1999)
(referring
to
Dr.
Lamberth’s
involving African-Americans). 61
mobile
observational
study
Those articles, therefore, offer
little support for the reliability of the stationary observation
of
Hispanics
from
the
roadside
during
the
day
and
night
undertaken in this case.
c.
Error Rates
The known or potential rate of error of a technique is a
factor that
bears
conclusions.
See
on
its
reliability
Daubert,
509
U.S.
and
at
thus
the
592–94.
proffered
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
controlling
is
unknown,
standard.
Dr.
as
the
Lamberth
surveyors
admitted
used
no
was
no
there
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
subjective evaluation.
to
be”
Hispanic
based
on
their
(Id.)
61
Both the Government and Sheriff Johnson cite and quote favorably
from Lorie Fridell, By the Numbers: A Guide for Analyzing Race Data
from Vehicle Stops (2004).
None of the expert witnesses testified
that the book was authoritative, as required by Federal Rule of
Evidence 803(18).
In fact, Dr. Banks stated that the book was not
authoritative, and Dr. Lamberth conceded the same, even though he
authored one of the appendices.
(Doc. 148 at 185; Doc. 153 at 121–
22.)
129
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. 62
57, 61.)
The more the observers agree, the more “reliable”
their reported observations.
reports
(Doc. 148 at 56–
that
agreement”
Rivera
during
and
their
In this case, while Dr. Lamberth
Valdez
claim
inter-rater
to
have
reliability
reached
test
“100%
(id.
at
60), this conclusion is essentially meaningless.
Once probed,
their
drivers
test
group
was
revealed
to
be
statistically unreliable sample size. 63
only
ten
(Id. at 128.)
—
a
And, even
further, none of those drivers was identified as Hispanic.
(Id.
62
The court notes, but does not rely on, the fact that By the Numbers,
to which Dr. Lamberth contributed, suggests that observational
benchmarking should use “two or three observers,” with the observers’
reported findings tested for inter-rater reliability. Fridell, supra
note 61, at 174.
Whatever the interpretation of this standard, the
court simply observes that Dr. Lamberth essentially used only one
observer, Rivera, and one recorder, Valdez.
63
From a statistical point of view, Dr. Lamberth failed to ensure
accurate identification because of his test’s lack of reliable
sensitivity and specificity. Sensitivity is “the true positive rate”
of a test (i.e., the rate at which the surveyors correctly identified
Hispanics), and specificity is “the true negative rate” (i.e., the
rate of correctly identifying non-Hispanics).
(Doc. 153 at 118–19.)
Dr. Lamberth’s test produced unreliable information as to the
surveyors’ sensitivity and specificity by using only ten drivers.
(Id. at 118–20.) According to Dr. Banks, the test would have needed
at least two hundred non-Hispanics to ensure accurate and reliable
identification. (Id. at 119–20.)
130
at
131.)
The
test
therefore
provides
no
information
as
to
whether the surveyors would agree as to the identification of a
single Hispanic driver. 64
In short, the error rate of Hispanic
driver
Dr.
identification
in
Lamberth’s
study
is
completely
unknown because the surveyors followed no objective standard.
See EEOC v. Kaplan Higher Educ. Corp., 748 F.3d 749, 753 (6th
Cir. 2014) (finding no abuse of discretion in district court’s
exclusion, as unreliable, of expert who relied on “raters” who
“had no particular standard in classifying each applicant” into
one of five races and who “instead, . . . just eyeballed . . .
DMV photos”); Valente v. Textron, Inc., 931 F. Supp. 2d 409,
425–26
(E.D.N.Y.
2013)
(finding
expert
testimony
unreliable
because “a different expert [could not] verify [the testifying
expert’s] results”), aff’d, 559 F. App’x 11 (2d Cir. 2014).
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.
Government
further
relies
on
Dr.
64
(Doc. 158 at 51.)
Lamberth’s
previous
The
studies
Of course, even if there was agreement, Dr. Lamberth’s test provides
no information about whether any identified driver was actually
Hispanic.
But because ACSO could have stopped drivers whom they
thought looked Hispanic but were not, and because practical
difficulties may exist in making that determination, the court does
not consider this additional problem.
131
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.
Government’s burden to prove admissibility.
F.3d at 199.
rate,
the
Yet,
it
is
the
See Cooper, 259
Given the lack of any proof as to Rivera’s error
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
unconvincing.
reliance
on
past
studies
is
equally
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.
agreement
was
Moreover, even assuming Rivera’s inter-rater
reliable
in
previous
studies,
past
reliability
provides no more than the possibility that Rivera is reliable in
this case.
That is not the standard for determining testability
and rate of error.
Further,
the
surveyors’
error
rate
in
identifying
Carolina law violations is completely unknown. 65
65
North
Dr. Lamberth
An additional unknown error rate is the error rate in Dr. Lamberth’s
132
testified that Rivera is a former New Jersey police officer but
that he was familiar with North Carolina’s traffic laws.
148 at 72, 188.)
(Doc.
No information was provided as to Valdez.
According to Dr. Lamberth, Rivera was looking for all violations
of Chapter 20 of the North Carolina General Statutes.
(Id. at
179.)
It is questionable whether Rivera — as a former New
Jersey
police
officer
—
or
Valdez
could
in
fact
identify all North Carolina traffic violations.
they
could,
it
is
doubtful
that
they
would
know
and
But even if
have
had
proper
opportunity to identify many traffic violations while seated on
the side of the road facing oncoming traffic.
(Id. at 64.)
Identifying certain traffic violations, such as a failure to
display a registration plate, N.C. Gen. Stat. § 20-63(b), and a
failure
to
equip
a
vehicle
with
rear
lamps
in
good
working
order, N.C. Gen. Stat. § 20-129(d), would require observation of
a vehicle as it passes and drives away, which would then limit a
surveyor’s ability to identify ethnicity and traffic violations
for other oncoming vehicles.
See United States v. Mesa-Roche,
288 F. Supp. 2d 1172, 1190 (D. Kan. 2003) (noting “an obvious
concern”
with
Dr.
Lamberth’s
study
“is
the
accuracy
of
the
spotters’ recorded data, in light of the short period of time
Hispanic surname analysis. Drs. Lamberth and Banks offered competing
estimates of the error rate for this surname analysis, 3% to 5% versus
10% to 20%, respectively.
(See Doc. 148 at 95–97; Doc. 153 at 140–
41.)
Because of the problems already identified, the court need not
address this issue.
133
they have to record this information as a car passes them by”).
The
Government
bears
the
burden
of
demonstrating
the
admissibility of Dr. Lamberth’s study and has failed to persuade
the court in demonstrating the surveyors’ ability to identify
North Carolina traffic violations.
d.
This
court
See Cooper, 259 F.3d at 199.
General Acceptance
also
questions
whether
the
observational
methodology Dr. Lamberth used in this case is generally accepted
in the relevant scientific field.
94.
See Daubert, 509 U.S. at 592–
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.
techniques
used
to
Lamberth’s
measure
observational
traffic
enforcement
benchmarking
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.
also
opined
inter-rater
accepted.
that
certain
reliability
aspects
test
and
of
his
surname
(Id. at 169.)
study,
such
analysis,
as
have
He
the
been
(Id. at 58, 91.)
Critically, though, the Government offers nothing to show
that
Dr.
Lamberth’s
roadside
134
observational
method
for
identifying
Hispanic
scientific field.
violators
is
generally
accepted
in
a
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 undermines the methodology Dr. Lamberth
used in this case.
Both Dr. Lamberth (id. at 169) and the
Government (Doc. 158 at 40) point to William R. Smith et al.,
The North Carolina Highway Traffic Study (Jan. 2004) (“Smith
article”),
as
benchmarking.
supportive
of
Dr.
Lamberth’s
observational
That article actually supports, and applied, a
different observational method, known as the “carousel method.”
Smith, supra, at 6, 251, 254.
That method is one “in which a
research vehicle is driven at the speed limit, and vehicles that
pass the research vehicle can be examined from the vantage point
of the research vehicle, wherein the researchers can identify
the race and other demographic features of the driver.”
254.
Id. at
This was the methodology used by Dr. Lamberth in a prior
case.
See Soto, 734 A.2d at 352–57.
When discussing the roadside observation methodology used
in this case, however, the Smith article reaches a different
conclusion, undermining Dr. Lamberth’s opinions:
One might think that data collection would be as
135
easy as standing by the side of the road and
observing. Armed with a radar gun and a pad of paper,
researchers seemingly could record the race, as well
as perhaps the gender, age, and speed of drivers as
they drive by, and then would be able to compare such
data with the rates of stops and citations for a given
highway.
Researchers might even be able to observe
vehicles weaving unsafely, or vehicles with expired
license plate “stickers,” or perhaps identify drivers
they thought were “driving while intoxicated.”
One
could conceivably estimate speed of the vehicles on a
video tape by measuring the time during which a known
distance is traveled.
These first thoughts on how to collect data on
the
behavior
of
drivers,
however,
have
several
problems that make them impractical.
One problem is
that the glare on windshields and side windows of
vehicles makes it difficult to see clearly the
motorist’s race, as well as his or her gender or age,
from a safe distance at the side of the road.
The
glare is in part due to the tinting done on most, if
not all, windshields and to the angle of light from
the sky (even on cloudy days).
Video cameras suffer
from the same problem.
The skeptic is encouraged to
simply try to stand (from a safe distance) near a
highway with fast-moving traffic, and see how often
they
can
successfully
identify
the
demographic
characteristics of drivers. We experimented with this
method and found that we were frequently unable to do
so.
Compounding this difficulty is the high rate of
speed of the passing vehicles, as there is little time
to assess demographic characteristics, much less their
speed. More importantly, when we tried this technique
(roadside viewing), it did not seem likely that our
failure to identify demographic characteristics was
random (else one could argue that misses were “random
error” and could be safely ignored).
Rather, some
types of vehicles or conditions, such as an open side
window, seem to permit greater visibility than others.
In short, we suspect that it is simply too difficult
to reliably ascertain demographic characteristics from
the sides of busy roads (also, it is rather unsafe for
the observer, unless he or she is well removed from
the highway, but then it is even harder to see into
passing vehicles).
136
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
opposite, with many decisions voicing concerns similar to those
in
the
Smith
article.
As
noted
earlier,
this
court
has
identified four cases supporting some form of Dr. Lamberth’s
observational methodology, but each case either did not involve
Hispanics or failed to provide sufficient information to assess
the relevant studies’ comparability to this case.
Several decisions analyzing the exact methodology performed
by
Dr.
Lamberth
methodology.
in
this
case,
however,
have
questioned
that
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
unreliable, noting:
[Dr. Lamberth’s] study relies upon subjective and
swift,
if
not
split-second
observations
of
Dr.
Lamberth’s surveyors for its collection of benchmark
data regarding the race and ethnicity of drivers. In
most cases, one person looked at a car and wrote down
the race he or she believed the driver to be, and that
conclusion served as the ultimate benchmark data. Yet
one person’s perception of what another’s race is may
be vastly different than someone else’s perception of
the same individual.
137
be
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).
Lamberth’s
methodology
Two other decisions found Dr.
“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
138
this litigation.
acceptance
case.
of
This showing is far from demonstrating general
the
methodology
Dr.
Lamberth
employed
in
this
See Cooper, 259 F.3d at 199.
Considering
testimony,
the
all
court
factors
is
not
related
persuaded
to
Dr.
that
Lamberth’s
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. 66
2.
Credibility
Even if Dr. Lamberth’s study were admissible, this court
would
not
accept
his
conclusions
as
credible
for
several
reasons.
First,
Dr.
prior writings.
Lamberth’s
testimony
directly
contradicts
his
At trial, he testified that the most accurate
benchmark for determining disparities in traffic enforcement was
law violators rather than all traffic.
66
(Doc. 148 at 170.)
Yet,
The exclusion of Dr. Lamberth’s study in this case should not be
read to suggest that observational studies of Hispanics could never be
admissible in federal court.
Here, the multitude of errors, when
combined, simply render Dr. Lamberth’s study unreliable and thus
inadmissible.
139
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.
64–68.)
(Doc. 148 at
In his prior work, however, Dr. Lamberth unequivocally
states,
[D]etecting the vast majority of traffic violations for
140
which a motorist can be stopped from a stationary point
or even from a moving vehicle is either not possible or
prohibitively time consuming.
That is, while many of
the
violations
are
always
present
(equipment
violations), they may not be obvious until the vehicle
is
observed
from
several
angles.
Stationary
observations do not allow the necessary views.
Lamberth,
supra,
at
415
(emphasis
added);
Lamberth,
supra,
at
143
(“Observing
the
see
also
Kadane
race/ethnicity
of
&
a
motorist from a vehicle is easier to do than from a stationary
point
on
the
observed
roadway
individual
because
. . .
the
and
observer
has
more
is
closer
time
the
make
to
to
the
observation.”). 67
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.
trial,
Hispanic
Dr.
drivers.
Johnson,
however,
Lamberth’s
identify
Lamberth
prior
black
motorists.”
downplayed
(Doc.
impeached
work,
in
motorists
(Id.)
148
difficulties
at
127.)
this
which
he
visually
Counsel
testimony
states
than
in
it
identifying
for
by
“it
is
At
Sheriff
citing
is
for
easier
Dr.
to
Hispanic
Moreover, Frasier, a former sheriff and the
Government’s expert in law enforcement practices and procedures,
67
Dr. Lamberth also contradicted his prior writings concerning the
relevant data to compare with an observational benchmark. He designed
his methodology in this case to compare his observed benchmarks to
citations issued by ACSO. (Doc. 148 at 38–39.) He previously wrote,
however, that traffic stop data, rather than citation data, is “the
more reliable measure of officer behavior.” Lamberth, supra, at 416.
141
confirmed the unreliability of Dr. Lamberth’s methods in the
context of this case:
Q:
How do you recognize an Hispanic?
A:
I don’t think that you can assume that you can
recognize an Hispanic.
(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.
B.
Motion to Exclude Dr. Banks’ Testimony
The
Government
Banks. 68
(Doc.
moves
(Doc. 115.)
133),
Government
and
the
challenges
to
exclude
the
testimony
of
Dr.
Sheriff Johnson responded to the motion
Government
both
Dr.
admissibility of his testimony.
90–91; Doc. 158 at 110–15.)
replied
Banks’
(Doc.
141).
qualifications
and
The
the
(Doc. 115 at 3–21; Doc. 153 at
Both challenges will be addressed
in turn.
1.
The
Dr. Banks’ Qualifications
Government
contests
Dr.
Banks’
qualifications
critique the work of Drs. Lamberth and MacDonald.
68
to
(Doc. 115 at
The Government also moved to exclude Dr. Banks’ expert reports, but
Sheriff Johnson never offered them at trial.
142
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.”
Civ. P. 702.
Fed. R.
“[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,
Where the expert’s qualifications are challenged, the
test for exclusion is a strict one, and the purported
expert must have neither satisfactory knowledge,
skill, experience, training nor education on the issue
for which the opinion is proffered. One knowledgeable
about a particular subject need not be precisely
informed about all details of the issues raised in
order to offer an opinion.
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
properly
the
made
weight
by
the
that
testimony
[fact
is
finder]”).
given,
a
“The
decision
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.)
143
The court
finds
Dr.
Banks
qualified
Throughout
his
career,
performing
surname
surname analysis.
Dr.
analyses,
to
testify
Banks
has
and
he
(Doc. 153 at 139.)
on
those
supervised
has
also
subjects.
individuals
published
on
Dr. Banks further sits on
the Human Rights Data Analysis Group, which utilizes surname
analysis when performing records linkage to identify civilian
casualties
in
observational
areas
of
conflict.
benchmarking,
while
(Id.
at
acting
140.)
as
As
the
to
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.
studies,
When asked about his experience with observational
subject.
Dr.
Banks
cited
several
(Id. at 135.)
papers
and
a
book
on
the
In sum, Dr. Banks is qualified to
analyze Dr. Lamberth’s surname analysis and observational study.
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;
argument
Doc.
unpersuasive.
well-qualified
153
at
90–91.)
The
Government’s
is
Without belaboring the obvious, Dr. Banks is a
statistician.
During
his
career
as
a
statistician, he has worked with the Fatality Analysis Reporting
System — a law enforcement dataset.
144
(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.
2.
The Admissibility of Dr. Banks’ Testimony
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
obligation”
earlier,
on
trial
Rule
judges
702
to
imposes
“ensure
a
that
“gatekeeping
any
and
all
scientific testimony or evidence admitted is not only relevant,
but
reliable.”
Daubert,
509
Kumho
U.S.
at
Tire
Co.,
589).
The
526
same
U.S.
at
147
factors
(quoting
addressed
in
connection with the analysis of Dr. Lamberth’s testimony apply
here.
the
As the proponent of the evidence, Sheriff Johnson bears
burden
of
establishing
the
admissibility
expert testimony by “a preponderance of proof.”
145
of
Dr.
Banks’
See Cooper, 259
F.3d at 199.
Applying these factors and for the reasons noted
below, the court finds Dr. Banks’ expert testimony admissible.
a.
Dr. Banks’ Study of ACSO Traffic Stops
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
comparisons across counties.
112–13.)
differences
when
making
(Doc. 115 at 3–10; Doc. 158 at
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.
analysis,
Dr.
Banks
compared,
across
In his traffic stop
several
North
Carolina
counties, the ratios of traffic stops in each county with that
county’s
unadjusted
Hispanics. 69
Census
data
as
to
Hispanics
and
non-
His use of unadjusted Census data in this fashion
was not to determine a benchmark by which to assess whether ACSO
69
As noted earlier in the court’s findings of fact, Census adjustments
are changes to the U.S. Census’ population estimates meant to improve
the accuracy of U.S. Census estimates.
(Doc. 153 at 102.)
Adjustments account for population characteristics like literacy rates
and migrant worker patterns.
(Id. at 103–04.)
“Unadjusted” Census
data is a set of population estimates without any adjustments.
146
disparately stopped Hispanics.
(examining
prove
unadjusted
discriminatory
Amendment).
baseline
Census
effect
Cf. Chavez, 251 F.3d at 640–45
data
of
as
an
policing
actual
under
benchmark
the
to
Fourteenth
Rather, he used the unadjusted Census data as a
denominator
in
a
case-control
study
—
a
common
methodology in academic literature — to compare the relative
difference between each jurisdiction.
His
testimony
allegations
was
of
offered
to
cast
discrimination
by
(Doc. 153 at 152–57.)
doubt
on
noting
the
Government’s
similarities
and
differences in stop rates across counties.
Second, the Government charges that Dr. Banks failed to
“account
for
any
differences
among
the
ensure their comparability to Alamance.”
Dr.
Banks
acknowledged
imprecisely
gauged
that
selected
to
(Doc. 158 at 113.)
unadjusted
Census
totals.
(Doc.
population
counties
data
153
somewhat
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
counties].”
inaccuracy
of
the
census
(Id. at 105–06, 198.)
count
for
[the
other
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
147
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.
So,
performing
“misinformative.”
other
“minor”
(Id. at 143–45.)
adjustments
would
have
been
(Id. at 143–45 (noting that “it is perilous
to adjust for second-order effects when you have first-order
effects that are outstanding”).) 70
Thus, because the unadjusted
Census data was not used here as a benchmark but was rather kept
constant
across
all
other
jurisdictions
compared,
the
court
of
ACSO
Checkpoint
Dr.
Banks’
accepts its use for that purpose.
b.
The
Dr. Banks’
Stops
Government
next
Analysis
maintains
that
study
ACSO’s checkpoint stops suffers from reliability issues.
too,
the
Government
challenges
Dr.
Banks’
use
Census data to make comparisons across counties.
of
of
Here,
unadjusted
For the sake
of brevity, the court will not repeat its previous analysis and,
70
Dr. Banks found that 9.92% of the commuting miles in Alamance County
were driven by Hispanics — a figure “consistent” with the unadjusted
population estimate for the County that he used.
(Id. at 106–07,
205.)
Of course, it is unlikely that all Hispanics are of driving
age.
148
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,
that
the
Government
argues
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.
4:03CV1507-WRW, 2008 WL 3285183, at *1 (E.D. Ark. Aug. 7, 2008)
(observing that expert’s reliance on certain studies goes to the
weight of the evidence rather than its admissibility); Atkinson
Warehousing & Distrib., Inc. v. Ecolab, Inc., 99 F. Supp. 2d
665, 670 (D. Md. 2000) (“If the jury finds that the facts upon
which a particular expert relied are not sufficient to support
the opinion or that the facts relied upon are erroneous, the
jury may reject the opinion.
If the jury finds that the reasons
supporting the opinion of a particular expert are sound and that
the facts relied upon do support such opinion, then the jury may
give
weight
to
the
opinion
and
149
consider
it
in
reaching
its
verdict.”);
Kenneda
v.
United
States,
815
F.
Supp.
926,
936
(S.D.W. Va. 1993) (“Any weakness in the factual underpinnings of
[the expert’s] opinion go to the weight and credibility of his
testimony,
not
to
its
admissibility.”
(quoting
S.
Cent.
Petroleum, Inc. v. Long Bros. Oil Co., 974 F.2d 1015, 1019 (8th
Cir. 1992))).
Thus, as with the traffic stop study, Dr. Banks’
checkpoint analysis is sufficiently reliable to be admissible
under Rule 702.
c.
The
Dr.
Banks’
Arrests
Government
also
Study
challenges
of
the
Banks’ study of ACSO’s checkpoint arrests.
ACSO
Checkpoint
reliability
of
Dr.
Dr. Banks analyzed
the outcomes from checkpoint stops for 10% of the checkpoints
conducted by ACSO between 2009 and 2012.
The
Government
argues
that
Dr.
Banks’
(Doc. 153 at 112.)
analysis
of
10%
of
checkpoints “is less probative than Dr. MacDonald’s analysis of
all
arrests
Government
from
also
checkpoints.” 71
cites
Federal
Rule
(Doc.
of
158
at
Evidence
114.)
The
702(b)
which
allows an expert to provide opinion testimony if that testimony
“is based on sufficient facts or data.”
While the Government’s
point is well-taken, this argument again addresses the weight
rather than the reliability of Dr. Banks’ arrest study.
71
See
Technically, Dr. MacDonald testified that he examined all arrests
and controlled for the stop reason, which presumably included
checkpoints. (Doc. 149 at 23, 38.)
150
Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 401 F.3d 901,
915–16
(8th
Cir.
statistician’s
testimony
sample
“not
Government
2005)
does
to
(holding
size
its
not
goes
that
toward
evidentiary
contend
argument
that
the
concerning
weight
of
admissibility”).
Dr.
Banks’
statistically or mathematically unreliable.
study
the
The
is
Dr. Banks himself
testified that the 10% sample “was adequate” for statistical
purposes.
(Doc.
153
at
113.)
Therefore,
the
Government’s
criticisms of Dr. Banks’ arrest study will be considered as to
the weight, not the admissibility, of Dr. Banks’ testimony on
this point.
d.
The
Dr. Banks’ Permutation Test
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.” 72
(Doc. 158
at 115; see also Doc. 115 at 15–16; Doc. 153 at 158–63.)
72
As a
In its original motion to this court (Doc. 115), the Government also
argued that another of the permutation test’s assumptions — that the
checkpoint locations were chosen independently of each other —
rendered the study unreliable.
(Doc. 115 at 16 (citing Doc. 86).)
The Government elicited no testimony on this assumption on crossexamination at trial and made no mention of the assumption in its
post-trial filing.
At trial, Dr. Banks stated that this assumption
was a “weak” one and did not change the result of his analysis. (Doc.
153 at 98–99.)
The Government offers the court no persuasive reason
to conclude that the assumption on the independence of checkpoint
selection renders the permutation study unreliable.
151
result,
the
Government
“meaningless”
and
continues,
“merely
shuffles
Dr.
the
Banks’
timing
test
of
is
checkpoint
locations and does not provide information about the proximity
of checkpoints to Latino neighborhoods.”
(Doc. 115 at 14–15;
Doc 158 at 114–15.)
To be sure, Dr. Banks acknowledged the assumptions he made
in
his
permutation
Government
contradict
provided
Dr.
study.
no
(Doc.
evidence
Banks’
of
153
at
other
methodological
97–99.)
Yet,
the
available
sites
to
assumption
that
the
checkpoint data represented all possible checkpoint sites in the
County.
In
fact,
checkpoint
locations
standards,
limiting
ACSO’s
must
“the
evidence
meet
certain
universe”
of
demonstrated
safety
that
its
and
logistical
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
Banks’ permutation test is statistically unreliable.
that
Dr.
Rather,
the Government contends that his study is “meaningless” and of
little probative value.
15.)
Those
arguments
(Doc. 115 at 14–15; Doc. 158 at 114–
concern
the
relative
import
and
persuasiveness of Dr. Banks’ study rather than its admissibility
152
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.
C.
Motion for Adverse Inference
Prior to trial, the Government moved the court to draw an
adverse
inference
spoliation
of
against
Sheriff
evidence.
(See
Johnson
Doc.
131.)
based
on
alleged
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.
the
close
of
evidence,
noting
(Doc. 156 at 51–52.)
that
the
outstanding, the court made no final ruling.
motion
was
At
still
(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
153
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
employee
was
also
it
was
said
presented
to
have
at
trial. 73
informed
the
The
former
Government’s
attorney that Sheriff Johnson gave the alleged order via ACSO’s
central communications system (“C-COMM”) and that communications
on C-COMM were retained for only a short time period.
¶ 6.)
(Id.
Without a request for preservation, the recordings remain
in the system for one year.
(Doc. 156 at 34.)
The Government attorney sent a letter by mail and email
dated June
Attorney.
30,
2011,
to
Clyde
Albright,
the
Alamance
(Doc. 131-3 at 2; Doc. 156 at 38–39.)
County
Up until that
time, Albright was counsel of record for the County and Sheriff
Johnson in the DOJ’s then-pending declaratory judgment lawsuit
seeking unfettered access to ACSO deputies as part of the DOJ’s
investigation
of
present action.
discriminatory
policing
that
preceded
the
See United States v. Alamance Cnty., No. 1:11-
cv-507 (M.D.N.C.).
The letter requested that Albright preserve
73
The Government attempted to offer Deputy Randleman’s inadmissible
hearsay testimony that he had heard rumors of such a statement. (Doc.
149 at 194.)
154
all communications over the C-COMM system during the week of
June 12–18, 2011.
letter
further
(Doc. 131-3 at 2; Doc. 156 at 38–39.)
stated
that
the
communications
“may
contain
information relevant to” the Government’s investigation.
131-3 at 2.)
The
(Doc.
At 12:46 p.m. that same day, however, S.C. Kitchen
— ACSO’s current attorney in this case — served a notice of
appearance for ACSO in the declaratory judgment action, and at
2:11 p.m., Albright filed a notice of appearance on behalf of
Alamance County.
(Docs. 139-1; 139-2 at 1; 139-3; 156 at 38.)
On July 5, 2011, Kitchen filed a notice of appearance in that
same
action
capacity.
on
behalf
(Doc. 139-4.)
of
Sheriff
Johnson
in
his
official
The entry of separate counsel for the
County appears to have been a result of (1) the Government’s
litigation
position
that
it
was
entitled
to
interview
ACSO
deputies without ACSO or County counsel being present, and (2)
the fact that, under North Carolina law, ACSO is a separate
entity from the County.
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.
155
(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.
controlling
the
(Id. at 42.)
system
work
(Doc. 156 at 41–42.)
for
Alamance
County
Employees
—
not
ACSO.
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. 74
at 35, 39.)
recordings.
(Id.
Bower and Crotts indicated they would keep the
(Id. at 39.)
On July 6, 2011, Crotts sent an email
(with the subject “June 12-June 18 2011 ACSO CFS”) to Albright
with a 240-page computer-assisted dispatch report.
40; see
also
Doc.
139-7.)
Albright
further
(Id. at 39–
testified
that,
after informing Bower and Crotts that the Government wanted the
actual recordings and not the dispatch report, he believed that
74
Crotts has no recollection of this meeting but does not deny that it
occurred. (Doc. 156 at 37.) Her subsequent July 6, 2011 email (Doc.
139-7) is strong evidence that Albright’s account is correct.
156
the
recordings
According
to
would
preserved. 75
be
Albright,
he
had
no
(Doc.
reason
recordings were not preserved until 2013.
156
to
at
believe
40.)
the
(Id. at 40–41.)
In
April 2013, Albright asked Crotts for the C-COMM recordings from
June 12–18, 2011, but, by that time, the recordings were no
longer in the system.
(Id. at 35, 40–41.)
The Government argues that, because the C-COMM recordings
were
lost,
it
is
entitled
particular
“recording
contained
evidence
specifically
that
of
had
an
it
adverse
been
Defendant’s
“Sheriff
take him to jail.’”
131.)
—
to
Johnson
inference
preserved
—
would
discriminatory
stated
‘If
that
a
have
intent,”
he’s
Hispanic,
(Doc. 158 at 121 & n.31; see also Doc.
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
foreseeable litigation.”
F.3d
583,
590
(4th
Cir.
evidence
in
pending
or
reasonably
Silvestri v. Gen. Motors Corp., 271
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
75
Crotts again said she has no recollection of meeting with Albright
but does not deny that she did. (Doc. 156 at 37.)
157
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.
clearly
In its June 30 letter to Albright, the Government
states
that
the
recordings
“may
contain
relevant to” the Government’s investigation.
information
(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.
counsel
for
recordings
Sheriff
were
Johnson
relevant,
believed they were.
(Doc. 131-5 at 2.)
claims
he
did
he
know
did
not
that
Although
know
the
why
the
Government
That is sufficient to trigger a duty to
158
preserve.
See Silvestri, 271 F.3d at 591 (observing that the
duty to preserve arises “not only during litigation but also
extends
to
that
should
reasonably
period
know
before
that
the
the
litigation
evidence
may
when
be
a
party
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
County and not ACSO.
the
direction
and
(Doc. 156 at 41–42.)
control
of
Sheriff Johnson and
Alamance County are different legal entities.
Neither he nor
his deputies is an employee or agent of the county.
v.
Durham
Cnty.
Sheriff
Dep’t,
1:07cv825
Alamance
(M.D.N.C.
See Capers
July
17,
2009) (Doc. 85), adopting recommendation, 2009 WL 798924, at *6
(M.D.N.C. March 23, 2009); McLaughlin v. Bailey, 771 S.E.2d 570,
576 (N.C. Ct. App. 2015); Clark, 450 S.E.2d at 749.
Therefore,
because
under
the
C-COMM
system
and
its
recordings
are
the
control of Alamance County, Sheriff Johnson did not have control
over the C-COMM recordings and will not be held responsible for
their loss.
See Vulcan, 645 F.3d at 260; Hodge v. Wal-Mart
Stores, Inc., 360 F.3d 446, 450–51 (4th Cir. 2004) (concluding
that a party that “did not have control of” evidence could not
be blamed for its loss).
159
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
Vodusek, 71 F.3d at 156)).
of
evidence.’”
(quoting
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.
attorney
for
156
at
Sheriff
39–40)
Johnson
is
—
evidence
had
a
that
Kitchen
reasonable
belief
—
as
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.
D.
Motion to Exclude Kenneth Evans’ Testimony
At trial, counsel for Sheriff Johnson moved to strike the
160
testimony of former lieutenant Kenneth Evans based on an alleged
violation of Rule 4.2 of North Carolina’s Professional Rules of
Conduct.
rules).
See L.R. 83.10e(b) (adopting North Carolina’s ethical
Rule 4.2 states,
During the representation of a client, a lawyer shall
not
communicate
about
the
subject
of
the
representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is
authorized to do so by law or a court order.
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
lawsuit
Alamance
sought
a
County.
(Id.)
declaration
that
More
Rule
specifically,
4.2
permitted
that
DOJ’s
attorneys to interview certain ACSO non-command staff and all
former
ACSO
employees
outside
161
the
presence
of
Defendants’
counsel.
United
States
v.
Alamance
(M.D.N.C. June 23, 2011) (Doc. 1).
Cnty.,
No.
1:11-cv-507
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.
States
v.
Alamance
Cnty.,
No.
11-cv-507
(M.D.N.C.
United
Sept.
18,
2012) (Doc. 53).
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. 76
See, e.g., Ohio Valley
Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir.
2009) (listing the basic requirements for res judicata).
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
violated the rule.
legal
rule
explaining
how
the
Government
See, e.g., N.C. R. Prof’l Conduct 4.2, cmt.
76
Sheriff Johnson cites this court’s order dismissing his motion for
judgment on the pleadings (Doc. 19), in which this court assumed,
without deciding, that its prior Order granting the Government
voluntary dismissal was a final judgment.
(Id. at 7.)
The court,
however, did not hold that its prior order in the declaratory judgment
action was a final judgment on the merits. (Id. at 6–9 (holding that,
assuming that its prior order was a final judgment, that order did not
bar § 14141 claims under the declaratory judgment exception).)
162
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
163
*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.
harm;
No
involving
foul’
ethical
ignored.”).
also
no
cannot
While the sports based aphorism ‘No
be
wholly
violations,
the
transplanted
extent
of
to
harm
cannot
Sheriff Johnson certainly points to none.
evidence
that
Evans’
statements
attorney were used at trial.
to
the
matters
be
There is
Government’s
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
unethical
contact
Johnson’s
motion
prejudice
with
to
resulting
Evans
strike
would
the
from
the
similarly
lieutenant’s
doom
allegedly
Sheriff
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 of
the judicial proceedings, state bar authorities are generally
better
positioned
to
address
the
matter
through
disciplinary
proceedings, rather than the courts through substantive sanction
in the underlying lawsuit.”).
Although the court denies the
Sheriff’s motion, the Government’s pre-litigation contact with
164
Evans can be considered as it would be with any other fact
witness
in
assessing
the
credibility
and
weight
of
the
testimony.
E.
42 U.S.C. § 14141 Claims
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.
ACSO
committed
a
“pattern
or
Second, it maintains that
practice”
of
Fourth
Amendment
violations.
Section 14141 of Title 42 — titled “Cause of Action” —
reads in full:
(a) Unlawful conduct
It shall be unlawful for any governmental authority,
or any agent thereof, or any person acting on behalf
of a governmental authority, to engage in a pattern or
practice of conduct by law enforcement officers or by
officials or employees of any governmental agency with
responsibility for the administration of juvenile
justice
or
the
incarceration
of
juveniles
that
deprives persons of rights, privileges, or immunities
secured or protected by the Constitution or laws of
the United States.
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to
believe that a violation of paragraph (1) has
occurred, the Attorney General, for or in the name of
the United States, may in a civil action obtain
165
appropriate
equitable
and
declaratory
eliminate the pattern or practice. 77
The
statute
practice”
does
of
not
define
constitutional
what
relief
constitutes
rights
a
to
“pattern
deprivations.
Both
or
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 (1977), an employment discrimination
case under Title VII of the Civil Rights Act of 1964, as the
interpretative
requirement.
14141’s
light
source
§ 14141’s
“pattern
or
(See Doc. 157 at 90; Doc. 158 at 82.)
legislative
on
for
the
history
“pattern
or
similarly
practice”
sheds
no
standard.
practice”
Section
interpretive
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
assistance in interpreting § 14141.
§ 1202
(1991);
H.R.
Rep.
No.
some,
albeit
limited,
See H.R. 3371, 102d Cong.
102-242,
pt.
1
(1991).
The
predecessor bill contained language nearly identical to § 14141
and particularly the “pattern or practice” phrasing.
77
See H.R.
The phrase “paragraph (1)” appears to be a textual error in the
statute and should likely read “paragraph (a).”
166
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).
noting
that
“[t]he
Justice
Department
It began by
currently
lacks
the
authority to address systemic patterns or practices of police
misconduct.”
Id. at 137.
The Committee then drew a parallel to
the
or
authority”
“pattern
“under
voting,
eight
practice
civil
housing,
rights
statutes
employment,
of
the
including
education,
and access to public facilities.”
Attorney
Id.
those
public
General
governing
accommodations
Another comparison was
made to 42 U.S.C. § 1983, with the Committee observing, “The Act
does not increase the responsibilities of police departments or
impose any new standards of conduct on police officers.
The
standards of conduct under the Act are the same as those under
the
Constitution,
section 1983.”
Government’s
presently
enforced
in
damage
actions
under
Id. at 138; see also id. (citing the Federal
present
inadequate
ability
to
curb
“patterns
or
practices such as the lack of training or the routine use of
deadly
techniques
like
chokeholds,
or
the
absence
of
a
monitoring and disciplinary system” as impetus for the bill);
id. at 138–39 (citing two lawsuits against police departments
“illustrat[ing]
both
the
need
for
authority and how it will work”).
167
[the
Attorney
General’s]
Given the limited background provided by the Committee on a
bill other than § 14141, other judicial constructions of the
phrase
“pattern
parties
have
or
not
practice”
identified
provide
any
further
federal
guidance.
decision
applied § 14141’s “pattern or practice” standard.
found
one
recent
decision
applying
§ 14141’s
that
The
has
The court has
standard
on
a
motion for summary judgment, but that decision offers little
interpretive guidance. 78
See United States v. Town of Colorado
City, Ariz., No. 3:12-CV-8123-HRH, 2015 WL 3774315, at *4–6 (D.
Ariz.
June
17,
2015).
The
phrase
“pattern
or
practice,”
however, is not a concept foreign to federal courts.
repeatedly
uses
the
expression
in
federal
authorizing the Attorney General to bring suit.
Congress
statutes
when
See, e.g., 42
U.S.C. § 2000e-6(a) (authorizing the Attorney General to pursue
injunctive relief in cases concerning a “pattern or practice” of
employment discrimination); 42 U.S.C. § 3614(a) (authorizing the
Attorney
General
to
bring
civil
action
in
cases
involving
a
“pattern or practice” of Fair Housing Act violations); 52 U.S.C.
§ 10101(e) (authorizing courts to find a “pattern or practice”
78
Also, in Nat’l Cong. for Puerto Rican Rights v. New York City, 75 F.
Supp. 2d 154 (S.D.N.Y. 1999), the district court suggested an overlap
between § 14141 and § 1983. Id. at 165–66. In that case, the court
denied a request to stay a class action bringing § 1983 claims pending
resolution of a DOJ investigation pursuant to § 14141.
Id.
Among
other reasons for denying the stay request, the court observed that
any legal rulings in the § 1983 class action would be res judicata and
have collateral estoppel effect in any potential § 14141 litigation.
Id.
168
of voting rights deprivations).
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.”
n.16.
Int’l Bhd. of Teamsters, 431 U.S. at 336
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; see
also id. at 336 n.16 (“[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
(1984)
(concluding
that
an
attempt
to
prove
a
“pattern
or
practice” claim “may fail even though discrimination against one
or two individuals has been proved”); EEOC v. Am. Nat. Bank, 652
F.2d 1176, 1188 (4th Cir. 1981) (concluding that government’s
“pattern or practice” burden may be met “by statistics alone,
. . .
or
by
a
cumulation
of
evidence,
including
statistics,
patterns, practices, general policies, or specific instances of
169
discrimination” (citations omitted)); Stastny v. S. Bell Tel. &
Tel. Co., 628 F.2d 267, 278 (4th Cir. 1980) (holding that a
“pattern or practice” of employment discrimination can be shown
through
a
“sufficient
discriminatory
number
treatment”
or
of
instances
statistical
of
similar
data).
Legal
commentators also suggest that the definition of “pattern or
practice” supplied by employment law should persuasively guide
interpretations of § 14141.
72;
Eugene
§ 14141:
Kim,
See Miller, supra, at 166–67, 169–
Vindicating
Guidance
from
Civil
Procedures
Rights
in
Under
Complex
42
U.S.C.
Litigation,
29
Hastings Const. L.Q. 767, 778–80 (2002).
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”
under 42 U.S.C. § 1983.
of
constitutional
rights
deprivations
Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 685 n.45, 690–91 (1978); Rizzo v. Goode, 423 U.S. 362,
375–76 (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
(quoting
Spell
v.
1987))).
As
other
McDaniel,
or
flagrant’
violations
824
F.2d
1380,
commentators
have
observed,
170
1390
will.”
(4th
the
Cir.
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.
1.
Fourteenth Amendment Claim
The Government first alleges that ACSO violated § 14141 by
engaging
in
a
pattern
enforcement
directed
Fourteenth
or
Amendment.
practice
against
of
Hispanics
The
discriminatory
in
Fourteenth
violation
law
of
Amendment’s
the
Equal
Protection Clause bars any state from “deny[ing] to any person
within its jurisdiction the equal protection of the laws.”
Const. amend. XIV, § 1.
U.S.
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 (1985).
Proving
an
analysis.
First,
treatment
of
a
equal-protection
the
Government
person
or
must
group
similarly situated individuals.
claim
of
unequal
treatment
a
two-step
demonstrate
the
persons
compared
as
unequal
to
See id.; Morrison v. Garraghty,
239 F.3d 648, 654 (4th Cir. 2001).
Circuit,
involves
According to the Fourth
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
171
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,
Cir.
819
(4th
1995).
Suspect
facially
neutral
classifications are simply those that are not explicitly stated
but are nevertheless applied.
Id. at 818–19.
Second, this court must “determine whether the disparity in
treatment
can
scrutiny.”
be
justified
under
the
Morrison, 239 F.3d at 654.
requisite
level
of
“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.
Doc. 158 at 84.)
The Government argues that ACSO bases those
classifications on ethnicity. 79
unequal
treatment
(See
based
on
(Id. at 83–84.)
ethnicity
79
is
If proven, any
subject
to
strict
The Government does not argue that any ACSO policy or conduct was
irrational, if not proven to be based on a suspect or quasi-suspect
classification. See Sansotta, 724 F.3d at 542–43.
172
scrutiny.
See Fisher v. Univ. of Tex. at Austin, 133 S. Ct.
2411, 2417 (2013); Regents of Univ. of Cal. v. Bakke, 438 U.S.
265, 291 (1978) (“Racial and ethnic distinctions of any sort are
inherently suspect and thus call for the most exacting judicial
examination.”);
see
also
City
of
Cleburne,
473
U.S.
at
440
(applying strict scrutiny to unequal treatment based on national
origin).
To survive strict scrutiny, a classification based on
ethnicity
“must
(1)
be
narrowly
compelling government interest.”
a.
The
tailored
and
(2)
further
a
Monroe, 579 F.3d at 390.
Express Classification
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
Protection Clause.
“fall
within
the
core
of”
the
Equal
Shaw v. Reno, 509 U.S. 630, 642 (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
173
classifications: 80
(1)
Sheriff
Johnson’s
alleged
order(s)
to
“arrest Hispanics” during an ACSO meeting; and (2) his alleged
direction
to
“arrest
Hispanics”
at
a
predominantly Hispanic mobile home park. 81
checkpoint
near
a
(Doc. 158 at 86–87.)
To be sure, the record reveals no evidence that ACSO had a
policy
—
written
Hispanics.
any
policy,
or
unwritten
—
that
expressly
classified
The Government points to no ACSO document containing
and
no
witness
testified
to
any.
Rather,
the
80
The Government points to two other incidents — both involving ACSO’s
alleged use of “discriminatory criteria to select Alamance County
employees for investigation” — as demonstrating a purported express
classification.
(Doc. 158 at 88 (citing Deputy Randleman’s
investigation of the driver who hit Commissioner Vaughan and the
investigation of a Hispanic library employee requested by another
Commissioner).)
To be sure, a law enforcement agency cannot be
protected from complicity in another’s discrimination simply by
claiming it was requested or directed to do so.
But the two
supporting examples provided by the Government show that individuals
outside of ACSO not only initiated those investigations but identified
the alleged suspects as Hispanic. The Government fails to provide any
citation or explanation for why those incidents are express
classifications under the Fourteenth Amendment. See Monroe, 579 F.3d
at 388–89 (holding that use of ethnic information — originating
outside the police department — in description of crime’s perpetrator
is not an express classification); Brown v. City of Oneonta, N.Y., 221
F.3d 329, 337–38 (2d Cir. 2000) (finding no express racial
classification where police used race in description of suspect).
81
Although not cited by the Government as evidence of an express
classification, the court notes one other alleged incident: the
Government offered Corporal Nicholson, who testified that Sheriff
Johnson once said, “Go get the Mexicans” and “arrest every chili
shitter in the park.”
(Doc. 147 at 77, 81.)
As stated in its
Findings of Fact, the court questions the veracity of this allegation,
as Sheriff Johnson and the other officer attending the meeting deny
those statements.
Moreover, the persuasive evidence is that Sheriff
Johnson stated “Go get those Mexicans” or “the Mexicans” in reference
to a specific Mexican gang then under ACSO investigation for criminal
activity. Corporal Nicholson also testified that he made no stops or
arrests as a result of the alleged order. (Doc. 147 at 89.)
174
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. 82
This
total
lack
of
implementation,
particularly when viewed with the failure to provide any context
for such statements, casts serious doubt on both the veracity of
the
Government’s
witnesses’
characterization
of
them
and
claim that they rise to the level of a practice or policy.
82
the
Only
The parties have not addressed the extent to which an express
classification must be implemented in order to create a Fourteenth
Amendment violation.
The Supreme Court and lower courts have
suggested ethnic classifications may trigger strict scrutiny only when
official state action subjects persons to that classification or when
the government actor utilizes that classification. See, e.g., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) (“[A]ny person,
of whatever race, has the right to demand that any governmental actor
subject to the Constitution justify any racial classification
subjecting that person to unequal treatment under the strictest
judicial scrutiny.” (emphasis added)); Wayte v. United States, 470
U.S. 598, 610 n.10 (1985) (concluding that “[a] showing of
discriminatory intent is not necessary when the equal protection claim
is based on an overtly discriminatory classification,” suggesting that
a showing of discriminatory effect is still required); Sylvia Dev.
Corp., 48 F.3d at 819 (stating that strict scrutiny applies when “the
classification utilized is explicitly stated”); see also Monell, 436
U.S. at 694 (“[I]t is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury
that the government as an entity is responsible under § 1983.”). But
see Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 545 (3d
Cir. 2011) (“A statute or policy utilizes a ‘racial classification’
when, on its face, it explicitly distinguishes between people on the
basis of some protected category.” (quoting Hayden v. Cnty. of Nassau,
180 F.3d 42, 48 (2d Cir. 1999))).
175
a very few officers claimed to have heard such a statement.
And,
had
any
officer
regarded
such
a
statement
to
be
a
directive, like those from the Sheriff that he or she was dutybound to obey, as the Government suggests, it is odd that not a
single officer or employee ever complained about it, challenged
it, or was concerned that he or she would risk any adverse
action
at
all
for
failing
to
follow
it.
Whatever
Sheriff
Johnson may have said, it is unlikely that it was as portrayed,
singling out Hispanics expressly.
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.
City,
the
district
Department’s
found
policy
stated
court
that
that
In Floyd v. New York
the
“targeted
New
York
young
Police
blacks
and
Hispanics for stops” explicitly classified on the basis of race
and ethnicity, citing testimony by police officers that they
targeted “the right people” and the chief of police admitted
that the “right people” are “young men of color in their late
teens, early 20s.”
n.767.
959 F. Supp. 2d at 602–03 & n.280, 663 &
Similarly, in Melendres v. Arpaio, 989 F. Supp. 2d. 822
(D. Ariz. 2013), aff’d in part, vacated in part, 784 F.3d 1254
(9th
Cir.
2015),
classification
policies
the
existed
“expressly
district
where
a
permitted
176
court
police
held
an
express
department’s
written
officers
that
to
make
racial
classifications” as a factor in developing probable cause or
reasonable suspicion.
manual
“expressly
permitting
Id. at 846–47 (noting that ICE training
allows
consideration
for
of
consideration
“apparent
of
Mexican
race”
by
ancestry”
as
relevant to reasonable suspicion).
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, thenChief 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. 83
147
at
156–57.)
However,
after
several
officers,
(Doc.
including
Officer Lloyd, sought some clarification, Chief Deputy McPherson
spoke again with Sheriff Johnson and then reported back that the
Sheriff “didn’t mean [to arrest] just Hispanics” but rather also
“Hispanics, whites, and blacks.”
(Doc. 147 at 158–59.) 84
While
the clarification was inartful at best (there being no need to
refer to race at all), it demonstrates that the directive was
either
misstated
everyone.
or
misunderstood
and
was
meant
to
apply
to
This is consistent with Officer Lloyd’s testimony
83
Chief Deputy McPherson died in 2012.
84
The Government never questioned Sheriff Johnson about this incident.
177
(Doc. 154 at 41.)
that he never understood Sheriff Johnson to give him an order on
how to perform his traffic duties.
The
Government’s
theory
(Id. at 150–51.)
also
requires
interpretation of other trial evidence.
a
strained
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. 85
There was evidence, however, that in reality a
relatively low number of ACDC detainees were processed by ACSO’s
287(g) officers — approximately one detainee per week, and most
of those housed in the ACDC came from other counties and ICE.
(Doc. 152 at 163–64; Doc. 154 at 22–23.)
Thus, ACSO officers
contributed infrequently to the number of ICE detainees housed
in the ACDC, undermining the Government’s suggestion that ACSO
significantly
population
to
Government’s
heavily,
contributed
receive
arrestees
financial
statistical
contradicts
its
evidence,
theory
85
to
ACDC’s
benefits.
on
which
of
the
ICE
detainee
Moreover,
it
case
relies
—
the
very
whether
To be sure, there was no evidence that ACSO ever held any arrestee
solely for the purpose of determining his or her immigration status.
178
articulated
Hispanics
as
be
being
that
arrested,
identification. 86
or
the
Sheriff
only
those
directed
without
that
all
licenses
and
Dr. MacDonald’s testimony made clear that, in
87.9% of the cases, the opposite occurred: 55.8% of Hispanics
stopped were merely issued a citation; 22.3% were given only a
verbal warning; 5.0% were given only a written warning, and no
action at all was taken as to 4.8%.
(Doc. 149 at 21, 29–37.)
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.
Chief
Deputy
As to the alleged statement at the checkpoint,
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.
checkpoint
data
corroborating
testimony was presented.
the
Government’s
No
witnesses’
And, while the court relies on the
quality of the evidence and not the number of witnesses on any
86
The Government never provided any evidence as to why anyone was
arrested or cited, including whether or not they were able to provide
identification, to substantiate the theory that Hispanics were
arrested because they lacked identification.
179
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
sporadic discriminatory acts.”
of
isolated
. . .
or
Int’l Bhd. of Teamsters, 431
U.S. at 336 (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
(requiring
proof
of
“persistent
practices of state officials”).
one.
and
widespread
discriminatory
This inquiry is a fact-specific
See United States v. Cochran, 39 F. Supp. 3d 719, 730–31
(E.D.N.C. Aug. 13, 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
180
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 (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,
promotions,
two
failures
consisting
to
of
promote,
three
and
two
denials
rejections
of
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 (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.,
(concluding
665
that
discrimination
F.2d
class
following
482,
494–96
action
anecdotal
evidence
taking
into
account
Cir.
demonstrated
employees in addition to statistical data).
when
(4th
the
statistical
1981)
claim
from
of
twenty
This is true even
and
other
evidence
offered by the Government, as explained below.
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
181
the
Fourteenth
Amendment
and
§ 14141.
b.
The
Facially Neutral Classification
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.
neutral
158
at
84,
classification,
89.)
a
When
plaintiff
challenging
must
a
prove
facially
both
the
discriminatory effect of and discriminatory purpose behind that
classification.
256,
272
See Pers. Adm’r of Mass. v. Feeney, 442 U.S.
(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 (1977); Washington v. Davis, 426 U.S. 229, 238–42 (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.
Morrison,
239
F.3d
at
See City of Cleburne, 473 U.S. at 439;
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
(1996).
See, e.g., Farm Labor Org. Comm. v. Ohio State Highway
182
Patrol,
308
523,
to
plaintiffs
F.3d
533–34
(6th
demonstrate
Cir.
that
2002)
(obligating
“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
necessary
to
selective
prosecution
517
at
U.S.
prove
Supreme
Court
discriminatory
rather
465–71.
than
addressed
effect
for
selective
Attempting
to
the
a
law
obtain
evidence
claim
of
enforcement.
discovery,
the
Armstrong defendant had presented evidence that, “in every one”
of
twenty-four
cocaine
base
cases
closed
defender’s office, the defendant was black.
appeals
court
found
this
evidence
by
the
public
Id. at 459.
sufficient
to
permit
The
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.
The
Supreme
omission
of
instead
that
Court
the
disagreed,
similarly
“[t]he
rejecting
situated
requirements
for
the
appeals
requirement
a
Id. at 469.
and
court’s
finding
selective-prosecution
claim draw on ‘ordinary equal protection standards.’”
Id. at
465 (quoting Wayte v. United States, 470 U.S. 598, 608 (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
183
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
established
of
showing
requirement
in
discriminatory
[federal]
effect
is
jurisprudence.”
a
long
Chavez,
251 F.3d at 638.
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
enforcement (as opposed to selective prosecution).
law
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.
offers
no
argument
that
Armstrong
or
the
The Government
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. 87
(See Doc. 1 ¶¶ 4–5, 34–36, 38; Doc. 158 at 81, 117.)
concludes,
therefore,
that
Armstrong
is
The court
appropriate
and
persuasive guidance for the consideration of the selective law
87
The Government also offers no argument that Armstrong or
Fourteenth Amendment’s similarly situated requirement apply
differently in the context of a selective law enforcement claim.
184
the
any
enforcement claims raised here.
In this case, the Government aims to prove discriminatory
effect largely by relying on statistical evidence of disparities
in
ACSO’s
law
enforcement
practices. 88
Courts
analyzing
Armstrong in the context of selective law enforcement claims,
however,
differ
particular
as
similarly
statistical
evidence
to
whether
situated
of
a
plaintiff
individuals
aggregated
or
must
can
identify
instead
similarly
use
situated
individuals to show the discriminatory effect of selective law
enforcement.
Compare United States v. Viezca, 555 F. Supp. 2d
1254, 1267 & n.7 (M.D. Ala. 2008) (interpreting the Eleventh
Circuit
to
require
identification
of
specific
“similarly
situated individuals in selective traffic enforcement claims”),
aff’d sub nom. United States v. Ubaldo-Viezca, 398 F. App’x 573
88
The Government contends that its statistical evidence, alone, can
establish discriminatory purpose as well as effect.
(Doc. 158 at
119.)
The Supreme Court has, in other contexts, recognized that in
“rare” cases statistics alone may be able to demonstrate a
constitutional violation.
See Arlington Heights, 429 U.S. at 266
(observing that statistical evidence must present a “stark” pattern to
be accepted as the sole proof of discriminatory intent); see also
McCleskey v. Kemp, 481 U.S. 279, 294 n.12 (1987) (noting that only in
“rare cases” will “a statistical pattern of discriminatory impact
demonstrate[] a constitutional violation” and citing selection of the
jury venire and Title VII violations as the two types of cases in
which that demonstration is acceptable). In situations similar to the
present case, however, courts have held that “statistics may not be
the sole proof of a constitutional violation.”
Chavez, 251 F.3d at
647–48; accord Duque-Nava, 315 F. Supp. 2d at 1164; Mesa-Roche, 288 F.
Supp. 2d at 1196. Here, because of the multiple deficiencies noted as
to the statistical evidence, the court does not find it to be
sufficient, alone or in combination with all credible record evidence,
to demonstrate discriminatory intent to establish a § 14141 claim.
185
(11th Cir. 2010), with Farm Labor Org. Comm., 308 F.3d at 534
(“A claimant can demonstrate discriminatory effect by naming a
similarly
through
situated
the
use
individual
of
who
statistical
was
or
not
investigated
other
evidence
or
which
‘address[es] the crucial question of whether one class is being
treated
differently
similarly
from
situated.’”
another
(quoting
class
Chavez,
that
251
is
otherwise
F.3d
at
638)
(alteration in original)), and Duque-Nava, 315 F. Supp. 2d at
1153–56
(holding
that
statistical
evidence
prove a selective law enforcement claim).
importance
here
alleged
several
policing
(see
because,
specific
Doc.
1
while
the
instances
¶ 37),
the
is
sufficient
The distinction bears
Government’s
of
to
alleged
Government
complaint
discriminatory
has
abandoned
virtually all of them following discovery, leaving it with proof
of discriminatory effect consisting almost wholly of statistical
evidence.
For
purposes
discriminatory
demonstrated
of
effect
through
this
of
the
case,
selective
use
similarly situated individuals.
doing so.
the
of
court
law
accepts
enforcement
statistical
that
the
can
be
evidence
of
There are several reasons for
None of the cases appearing to require identification
of specific, similarly situated individuals in a selective law
enforcement
case
was
actually
evidence of discriminatory effect.
186
presented
with
statistical
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
(explaining
prosecution.
that
the
See
Chavez,
Armstrong
Court
251
F.3d
rejected
at
638
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
Hastings,
126
F.3d
treatment);
310,
316
see
(4th
also
Cir.
United
1997)
States
v.
(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 (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 (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
unexplainable
effect
of
the
U.S.
on
at
grounds
state
266
(“Sometimes
other
action
than
race,
. . . .”).
187
a
clear
emerges
Finally,
pattern,
from
as
the
several
courts
have
similarly
noted,
requiring
situated
the
individuals
identification
is
selective law enforcement cases.
sometimes
of
specific,
impractical
in
See, e.g., Chavez, 251 F.3d at
637–40; Bradley v. United States, 299 F.3d 197, 206 & n.11 (3d
Cir. 2002).
make
or
That is, “[b]ecause law enforcement agencies do not
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,
plaintiff must also demonstrate discriminatory purpose.
requires
more
“foreseeable.”
discriminatory
that
“the
than
proof
Feeney,
purpose
that
an
442
U.S.
instead
decisionmaker
adverse
at
requires
. . .
effect
278.
a
selected
was
This
merely
Establishing
sufficient
or
a
showing
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)
(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; see also Talbert v. City of Richmond, 648 F.2d 925, 929
188
(4th Cir. 1981).
circumstantial
available.”
This “demands a sensitive inquiry into such
and
direct
evidence
of
intent
as
Arlington Heights, 429 U.S. at 266.
may
be
The Fourth
Circuit has highlighted several factors “probative of whether a
decisionmaking body was motivated by a discriminatory intent.”
Sylvia Dev. Corp., 48 F.3d at 819.
Those factors include the
following:
(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.
Id.; see also Arlington Heights, 429 U.S. at 266–68.
is by no means exhaustive.
This list
See Arlington Heights, 429 U.S. at
268 (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
intentional.’”
administrative
Sylvia
Dev.
action
Corp.,
48
F.3d
was
at
‘clear
and
819
(quoting
facially
neutral
Snowden v. Hughes, 321 U.S. 1, 8 (1944)).
The
Government’s
classification
broadly
evidence
covers
189
of
six
a
areas
of
ACSO’s
law
enforcement practices: traffic stops; checkpoint placement and
stops;
post-stop
outcomes;
searches
program; and internal procedures.
after
stops;
the
287(g)
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
circumstances
Government
inquiry.
adduced
fails
to
In
from
sum,
all
demonstrate
given
the
a
the
trial
pattern
totality
evidence,
or
of
the
practice
of
facially neutral but discriminatory classifications.
i.
Traffic Stops
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
individual traffic stops performed by ACSO officers.
of
three
However,
none evinces a discriminatory intent or effect.
One traffic stop was Deputy Conklin’s stop of a van (which
unbeknownst
impeding
to
the
traffic
investigation
deputy
on
quickly
contained
Interstate
revealed
Hispanic
40.
evidence
passengers)
Deputy
of
human
for
Conklin’s
trafficking
(i.e., “multiple fast-food bags with trash in them” and bottles
filled with urine), a criminal offense (N.C. Gen Stat. § 1443.11), which prompted the deputy to contact ICE, who in turn
asked him to detain the van’s occupants for fifty minutes to an
190
hour until ICE agents arrived.
(Doc. 150 at 94–95.)
Nothing
about this stop suggests a discriminatory intent on the part of
Deputy Conklin.
law
The Supreme Court has acknowledged that state
enforcement
immigration
may
officials,
legitimately
Arizona
v.
cooperate
United
with
States,
federal
132
S.
Ct.
2492, 2507–09 (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.
stop,”
and
Hispanic.
Husser
(Doc.
The stop was simply described as a “bad
was
148
unclear
at
whether
192–93,
the
198.)
driver
was
Importantly,
even
Husser
testified that no ACSO stop he reviewed indicated the profiling
of Hispanics.
Finally,
the
stop
of
Jose
Luis
Arzola,
demonstrate discriminatory purpose or effect.
Jr.,
fails
to
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
registration.
officer
meant
to
provide
the
officer
(Doc. 147 at 185–86, 191–92.)
immigration
documents,
that
his
vehicle
Even assuming the
request
does
not
appear to be unlawful in and of itself absent evidence that the
191
request delayed the legitimate purpose of the traffic stop.
See
Arizona, 132 S. Ct. at 2509; Muehler v. Mena, 544 U.S. 93, 101
(2005).
The
ACSO’s
Government’s
traffic
evidence
stop
of
practices
discriminatory
thus
fails
to
profiling
in
demonstrate
a
Fourteenth Amendment violation.
ii.
The
next
operations.
drivers
by
area
Checkpoint Placement and Stops
of
challenge
involves
ACSO’s
checkpoint
The Government charges that ACSO targeted Hispanic
siting
neighborhoods
and
checkpoints.
In
checkpoints
stopping
the
absence
in
predominantly
Hispanics
of
Dr.
Hispanic
discriminatorily
Lamberth’s
at
inadmissible
testimony, the Government relies on four incidents occurring at
ACSO checkpoints and Dr. Banks’ finding that 36% of checkpoint
stops involved Hispanics. 89
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
predominately Hispanic mobile home park.
89
motioning
toward
a
(Doc. 149 at 119.)
Elsewhere, the Government notes Dr. MacDonald’s analysis of searches
at checkpoints and post-stop outcomes, which include those at
checkpoints. For the reasons explained infra, however, that analysis
is unpersuasive evidence of a discriminatory effect at ACSO
checkpoints.
192
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,
nevertheless
theory
if
Hispanics.”
being
which
came
speculative.
she
meant
It
they
in
without
would
were
support
there
to
objection,
the
is
Government’s
“get
them
some
There is no evidence of the type of checkpoint
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
193
statement, the probative value is weak because it is saddled
with such vagueness.
Next is the checkpoint set up by Corporal Nicholson near a
predominately Hispanic mobile home park.
however,
showed
that
that
the
The evidence at trial,
checkpoint
followed
Sheriff
Johnson’s direction to conduct some law enforcement activity in
the area due to the presence of a specific Mexican gang then
under ACSO investigation for criminal activity.
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,
194
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.
153
at
99–100,
170.)
The
Government
seeks
to
(Doc.
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.
71.)
(Id. at 170–
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
results.
(Doc. 153 at 145–46, 157.)
argument,
the
Government
contended
and
leads
to
erroneous
Indeed, in its closing
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
195
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
discrimination.
that
this
were
of
Hispanics
is
(Doc. 153 at 99–100.)
figure
disproportionately
demonstrates
where
disproportionately.
that
158
at
proof
of
The Government argues
ACSO
sites
drive
and
110–11.)
On
Hispanics
(Doc.
unreliable
checkpoints
stops
this
them
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
through
one.
Rather,
ACSO
officers
completed a stop form only for those actually detained beyond
the
initial
questioning
at
the
checkpoint.
Consequently,
without a legitimate benchmark, Dr. Banks’ figure says nothing
about the number of persons passing through ACSO checkpoints, or
their
ethnicity,
and
thus
is
not
proof
that
checkpoints discriminately near Hispanic areas.
ACSO
sites
This conclusion
is buttressed by the fact that, while there was evidence that
196
ACSO occasionally sited checkpoints near Hispanic neighborhoods,
there were 435 total checkpoints over four years positioned over
much of the County.
The Government has all but ignored these
other checkpoints and has not shown that there was any effort to
focus checkpoints on areas more densely populated by Hispanics
than
any
other
area
of
the
County.
Rather,
the
persuasive
evidence is that ACSO sited checkpoints throughout the County
and conducted them based on legitimate law enforcement reasons.
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,
decision-making
to
prove
detainment,
discriminatory
the
allowing
for
Hispanics
to
Government
should
a
comparison
of
violating
and
have
violating
non-violating
passed through the checkpoints.
in
provided
and
checkpoint
evidence
non-violating
non-Hispanics
who
Dr. Banks’ figure itself says
nothing about why any person was detained.
It is possible, of course, that ACSO was stopping Hispanics
197
discriminatorily.
But it is at least equally possible that ACSO
had
suspicion
reasonable
or
probable
cause
to
detain
proportionately more Hispanics than non-Hispanics without regard
to
ethnicity.
Cf.
Armstrong,
517
U.S.
at
469–70
(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
Government.
To
is
show
not
that
reasonably
ACSO
available
discriminatorily
to
the
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.
proof,
the
court
is
unable
In the absence of some further
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
checkpoint stopping.
198
evidence
of
discriminatory
iii. Post-Stop Outcomes
The
Government
decision-making
Here,
the
next
contends
evidences
Government
that
Fourteenth
relies
ACSO’s
Amendment
principally
on
post-stop
violations.
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 addressed the lay witness testimony, so the
expert testimony will be examined below.
Dr. MacDonald examined the outcomes from ACSO traffic stops
and
opined
traffic
that,
stop
higher arrest
warnings,
when
(by
way
and
he
of
controlled
regression
citation
verbal
rates
warnings,
or
for
the
reason
analysis),
but
lower
for
the
Hispanics
had
rates
non-enforcement
of
written
action.
The
Government argues that such “disparities” in post-stop outcomes
between
Hispanics
and
non-Hispanics
effect.
(Doc. 158 at 90–94.)
proves
discriminatory
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
outcome
to
measure.
analysis
fails
That
to
is,
the
demonstrate
Government’s
a
Fourteenth
post-stop
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 (“The requirements for a selective199
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 (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
discriminatory policing.
People,
Inc.,
684
Government
contends
constitute
the
See Attorney Gen. of U.S. v. Irish
F.2d
928,
200
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
generic
assume
stop
two
reason
major
means
propositions:
similarity
in
(1)
the
similarity
severity
of
in
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
assumptions cannot be made.
obvious
reasons,
these
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.
violation.”
For example, a common stop reason is “speed limit
(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 action than a driver going 80 m.p.h., who
is more likely to be cited or even arrested.
§ 15A-401(b)(2)
(stating
that
201
an
officer
See N.C. Gen Stat.
can
arrest
an
individual for any criminal offense without a warrant when the
offense is committed in the presence of an officer, such as
reckless driving, N.C. Gen. Stat. § 20-140 (defining reckless
driving as operating a vehicle “carelessly and heedlessly in
willful
or
wanton
others”)).
disregard
of
the
rights
or
safety
of
Similarly, other stop reasons provided on ACSO’s
stop forms, such as “safe movement violation” vary in degree and
may therefore explain differences in post-stop outcomes.
Gov’t Trial Ex. 59.)
(See
Other stop reasons are too generic to
assume they involve similar conduct and actually vary both in
kind
and
in
degree.
An
obvious
“vehicle equipment violations.”
example
of
the
latter
is
Compare N.C. Gen. Stat. § 20-
123.2 (requiring that vehicles contain a speedometer), with N.C.
Gen. Stat. § 20-130.1 (prohibiting installation of red and blue
lights
on
a
vehicle).
Thus,
controlling
for
stop
reasons
generically, as Dr. MacDonald has done, provides little evidence
that the persons stopped are in fact similarly situated.
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
202
for driving while impaired. 90
So, the driver is arrested for
that
other
offense.
However,
the
officer
who
stopped
the
Hispanic driver observes that the driver was only speeding as a
first offense and issues a verbal warning.
their
actual
law
violations,
the
drivers
Therefore, as to
are
not
similarly
situated, which explains and justifies their dissimilar poststop
outcomes.
This
does
not
even
take
into
account
the
offenders’ prior criminal and traffic record, which may inform
the officers’ discretion.
Dr. MacDonald’s study ignores these
distinctions between drivers in purporting to control for stop
reason.
trial,
Yet, when confronted with a comparable hypothetical at
Dr.
MacDonald
conceded
that,
in
scenarios
like
the
driving-while-impaired speeder, “the ultimate charge was not a
consequence of the [stop reason].” 91
(Doc. 155 at 43.)
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
90
The court uses this offense simply because Dr. MacDonald testified
that a driver who was impaired is more likely to be arrested while a
driver who was speeding is more likely to be cited. (Doc. 149 at 39.)
Other reasons for driver arrests undoubtedly exist, but, because Dr.
MacDonald’s study omitted that information, no proper comparison can
be made.
Dr. MacDonald’s failure to include the conduct underlying
the ultimate outcome is particularly problematic as to his arrest
comparison because, as he conceded, an arrest for mere speeding is
unlikely.
91
Margo Frasier also opined that, when examining an officer’s decision
to arrest versus cite, one must consider the “offense[] for which the
law allows either a citation or an arrest.” (Doc. 151 at 27.)
203
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
Hispanics
and
non-Hispanics
warnings,
and
no
action
is
so),
as
could
to
the
differences
written
just
as
between
warnings,
easily
be
verbal
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 the post-stop outcomes for written
warnings, verbal warnings, and no action, Dr. MacDonald’s study
would show that, at least as to these, Hispanics are better off
as compared to non-Hispanics.
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
traffic
(1996),
stops.
which
Without
allows
(nondiscriminatory)
controlling
for
these
pretextual
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
outcome.
See Armstrong, 517 U.S. at 465; Timms, 664 F.3d at
447; Attorney Gen. of U.S., 684 F.2d at 946.
204
as
to
stop
The
Government
superficial
effect.
must
statistical
do
more
than
disparities
it
to
did
show
here,
citing
discriminatory
As the Seventh Circuit cautioned, “Of course, parties
may not prove discrimination merely by providing the court with
statistical analyses.
crucial
question
of
The statistics proffered must address the
whether
251
(1st
Cir.
otherwise
treated
Chavez, 251 F.3d at 638; see also Cordi-Allen v.
245,
is
being
situated.”
F.3d
that
is
from
494
class
class
differently
Conlon,
another
one
2007)
(“[The
similarly
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
breakers
of
is
identifying
to
impermissible
isolate
a
similarly
the
factor
discrimination.”
situated
class
allegedly
(quoting
United
of
law
subject
to
States
v.
Aguilar, 883 F.2d 662, 706 (9th Cir. 1989))); Moore v. City of
Charlotte,
N.C.,
conclusion
that
754
F.2d
1100,
individuals
1110
have
(4th
Cir.
received
1985)
(“[A]
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
205
to
demonstrate
Amendment.
discriminatory
See
plaintiff’s
Ah
claim
Sin,
that
effect
198
under
U.S.
ordinance
at
was
the
Fourteenth
507–08
(rejecting
enforced
“solely
and
exclusively against persons of the Chinese race” because it did
not
allege
ordinance
“that
was
Chinese,
or
the
conditions
directed
that
did
there
and
not
were
practices
exist
other
to
which
the
exclusively
among
the
against
the
offenders
ordinance than the Chinese, as to whom it was not enforced”);
United
States
v.
Bass,
536
U.S.
862,
863–64
(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
generally
employees
fails
significantly
to
in
compensation,
compare
diminishing
similarly
the
Plaintiff’s
situated
probative
evidence
individuals,
value
of
any
disparity.”), aff’d, 390 F.3d 695 (11th Cir. 2004), overruled on
206
other
grounds,
Ash
v.
Tyson
Foods,
Inc.,
546
U.S.
454,
457
(2006).
The
that
court
the
persons
reaches
type
are
of
this
conclusion
information
similarly
with
necessary
situated
is
the
to
appreciation
determine
simply
whether
unavailable
practically difficult to obtain in some instances.
or
See, e.g.,
Chavez, 251 F.3d at 639-40 (noting that, “[i]n a civil racial
profiling
case,
however,
the
similarly
might be impossible to prove”).
566
(“The
similarly
situated
situated
requirement
But see Armstrong, 517 U.S. at
requirement
does
selective-prosecution claim impossible to prove.”).
not
make
a
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
conduct, but did not.
in
severity
of
driver
stop
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
207
likely causally associated with outcome.
The
citation
Government
forms.
also
Dr.
had
access
MacDonald
to
could
ACSO’s
therefore
arrest
have
and
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. 92
(Doc. 155 at 35–36 (Dr. MacDonald conceding that one
“could try” to match the citation and arrest forms to the stop
forms); see also Doc. 153 at 112, 165–66 (Dr. Banks testifying
that he “hand-matched” traffic stop forms to arrest reports to
determine the number of checkpoint arrests); Gov’t Trial Ex. 71
(example
citation
form).)
that
elected
not
he
to
Dr.
do
MacDonald
so.
(Doc.
testified,
155
at
however,
42.)
He
acknowledged further that, without the reason for citations and
arrests, “you’re missing the context.”
(Id. at 36; see also id.
at 41 (agreeing that, under his study, “you wouldn’t know the
type of arrest, charge, or the type of citation”); id. at 42
(admitting that, without providing the reason for citations and
arrests, “a layer of contextual information” is missing).)
Dr.
MacDonald
candidly
allowed,
it
is
important
to
have
As
the
reasons for citations and arrests as “it’s always better to have
92
Importantly, this does not mean that the Government needed to match
by hand all 20,059 traffic stop forms it analyzed. For example, while
controlling for the issues noted, it could have instead matched a
sufficiently sized sample of stop forms with citation or arrest data,
like Dr. Banks did. (See Doc. 153 at 112–13, 165–66.)
208
more
data
to
try
driving them.”
to
explain
the
disparities,
to
see
what’s
(Id. at 35 (emphasis added).)
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
detained
for
Consequently,
immigration
status
in
the
deportation).
(See
Doc.
if
held
287(g)
true,
the
theory
158
at
one
program
1–3,
might
and
10–14.)
logically
expect to find not only higher rates of arrest for Hispanics but
lower
rates
Hispanic
of
drivers
citations.
were
not
Yet,
only
Dr.
MacDonald
arrested
but
finds
cited
at
that
rates
higher than that of non-Hispanic drivers, and in significant
numbers: 55.8% of Hispanics cited versus 32.0% of non-Hispanics.
(Doc. 149 at 21–22.)
of
the
reasons
for
Because Dr. MacDonald fails to examine any
citations
or
arrests,
as
well
as
the
differences in the stop conduct, he does not rule out (or at
least make less plausible) benign motives.
For example, were
the Hispanics stopped for the same stop reason as non-Hispanics
in fact similarly violating the law that formed the basis for
their stop?
Were the Hispanics arrested not in fact committing
more serious crimes deserving of arrest, or were they committing
209
lesser
offenses
than
non-Hispanics?
And,
were
Hispanics
in
reality only cited for lacking any driver’s license (or when
lacking any identification) or were they arrested? 93
Rather than
rule out these plausible, non-discriminatory explanations, Dr.
MacDonald’s analysis instead requires the court to assume police
misconduct was afoot.
The Government contends that its showing is sufficient to
shift the
burden
to
Sheriff
Johnson
to
demonstrate
that
disparities were caused by factors other than ethnicity.
e.g., Doc. 158 at 97–104.)
post-trial
filing,
the
the
(See,
For example, at trial and in its
Government
repeatedly
attacked
Sheriff
Johnson’s attempts to show that Hispanics and non-Hispanics are
not similarly situated. 94
97–104.)
(See Doc. 155 at 54–55; Doc. 158 at
In making these criticisms, however, the Government
attempts to avoid its own obligation.
Sheriff Johnson need not
establish dissimilarities between Hispanics and non-Hispanics in
Alamance County.
the
burden
of
The Government — not Sheriff Johnson — bears
proving
that
ACSO
treated
Hispanics
in
a
93
Such questions are critical, even if the Government’s theory is only
that, by directing that Hispanics be arrested, ACSO necessarily cited
more Hispanics because bases for their arrest did not exist.
94
Similarly, Dr. MacDonald stated on several occasions that he did not
“need” to look at the reason for citation and arrest for his study to
show discriminatory effect.
(See, e.g., Doc. 149 at 18.)
Instead,
Dr. MacDonald relied on his “belief” that the size of the disparities
excused him from analyzing the reason for citations and arrests.
(Doc. 155 at 34.)
210
dissimilar fashion from similarly situated non-Hispanics.
See
Sansotta, 724 F.3d at 542 (describing the “burden” plaintiffs
must carry to prove an equal protection claim); Cordi-Allen, 494
F.3d
at
250
production
(“[C]ase
and
law
makes
persuasion
must
clear
be
that
the
shouldered
burdens
by
the
of
party
asserting the equal protection violation.”).
In sum, Dr. MacDonald’s post-stop outcome study fails to
show discriminatory effect.
iv.
Searches After Stops
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”).
“suggest[s]
threshold
In sum, Dr. MacDonald opined that his analysis
that
of
there
suspicion
is
or
a
different
probable
cause
searching Latinos compared to non-Latinos.”
see also id. at 42, 45.)
Dr.
MacDonald’s
standards
analysis
between
standard,
[being
a
lower
applied]
in
(Doc. 149 at 48;
The Government argues that, because
“suggest[s]”
Hispanics
and
211
differences
non-Hispanics,
in
search
it
proves
discriminatory effect.
(Doc. 158 at 94–96.)
The Government’s
conclusion, however, is unpersuasive.
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.
a
Such evidence would have suggested the application of
different
stands
in
policing.
search
contrast
standard
to
other
for
Hispanics,
cases
and
identifying
its
omission
discriminatory
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
Int’l
this
Bhd.
anecdotal
evidence
of
burdens
Teamsters,
evidence
its
431
serves
suggested
U.S.
to
at
bring
inference.
(observing
339
“the
See
that
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)); cf. Brown v. Nucor Corp., 785
F.3d
895,
914
(4th
Cir.
2015)
(noting
212
that
“statistical
and
anecdotal
evidence,
precisely
the
especially
‘glue’
of
when
combined,
thus
commonality”
necessary
in
provide
the
class
certification context).
Second, according to the Government, these three findings
“suggest” that ACSO uses a different standard when searching
stopped Hispanics.
however,
proof.
is
A suggestion of different search standards,
insufficient
to
meet
the
Government’s
burden
of
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.”
cases));
see
also
Mckoy
v.
Charlotte-Mecklenburg
(citing
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
important causal factor.
attempts
inference
Hispanics.
to
use
that
Dr.
ACSO
—
the
failure
to
control
(Doc. 153 at 132–33.)
MacDonald’s
applies
a
analysis
different
for
an
The Government
to
search
support
standard
the
to
In reaching these findings, however, Dr. MacDonald
213
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.
Dist.
See People Who Care v. Rockford Bd. of Educ., Sch.
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.”).
The
consent;
ACSO
search
stop
form
warrant;
lists
probable
arrest; and protective frisk.
MacDonald’s
finding
on
several
cause;
types
of
search
incident
(Gov’t Trial Ex. 59.)
drug
contraband
hit
searches:
rate
to
While Dr.
analysis
controlled for one of these — searches incident to arrest — it
failed to control for any other.
Most problematic is the first
among the search types — “consent.”
search
standard
at
voluntary consent.
all
and
merely
A consent search applies no
requires
an
individual’s
See United States v. Robertson, 736 F.3d
214
677, 679 (4th Cir. 2013) (“[I]f an individual consents to a
search, probable cause is unnecessary.”).
Consent may in fact
explain a significant portion of searches.
See United States v.
Worley, 193 F.3d 380, 386 (6th Cir. 1999) (describing a search
conducted pursuant to voluntary and valid consent as “[o]ne of
the most common” exceptions to the Fourth Amendment’s warrant
requirement); Ric Simmons, Not “Voluntary” but Still Reasonable:
A New Paradigm for Understanding the Consent Searches Doctrine,
80 Ind. L.J. 773, 773 (2005) (“Over 90% of warrantless police
searches
are
exception
to
accomplished
the
Fourth
through
the
Amendment.”).
use
Yet,
of
the
Dr.
consent
MacDonald’s
analysis makes no distinction between a search based on consent
and a search based on probable cause. 95
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
95
Dr. MacDonald presented an analysis controlling for searches
incident to arrest only as to drug contraband hit rates.
In an
unsupported statement, he stated that he looked at “other indicators
of contraband” and found a “consistent pattern of hit rates being
significantly lower for Latinos compared to non-Latinos.”
(Doc. 149
at 44.) This conclusory statement is difficult to interpret. Without
providing hit rates for other types of contraband, Dr. MacDonald’s
observed drug contraband hit rates may also be explainable by
contraband type.
For example, one would not expect “protective
frisks” — a type of “search” identified on the stop form — to yield
high numbers of drug contraband.
See United States v. HernandezMendez, 626 F.3d 203, 211 (4th Cir. 2010) (“A frisk for weapons is
permissible when an officer reasonably believes that the person being
stopped ‘may be armed and presently dangerous.’”
(quoting Terry v.
Ohio, 392 U.S. 1, 24 (1968))).
Yet, Dr. MacDonald did not address
this.
215
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
(1973)
probable
cause
(“A
is
custodial
a
arrest
reasonable
of
a
intrusion
suspect
under
based
the
on
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
overall
and
search
weapons
under
percentages
ACSO
and
policy.
checkpoint
Dr.
MacDonald’s
search
findings
nevertheless included those uncontrolled-for, non-discretionary
searches.
Including those non-discretionary searches severely
undermines the probative value of those two findings. 96
96
Notably, the Government cites Nicola Persico & Petra Todd,
Generalising the Hit Rates Test for Racial Bias in Law Enforcement,
with an Application to Vehicle Searches in Witchita, 116 Econ. J. F351
(Nov. 2006), in support of its argument that ACSO conducts
discriminatory searches. That article, however, observes,
A key assumption of the [hit rate] model . . . is that
police choose whom to search so as to maximize successful
searches.
Police presumably have little discretion in
cases where they pull over a driver because they have a
warrant for the driver’s arrest or when the search is
incident to an arrest.
Therefore, we limit our analysis
sample to observations on police-motorist encounters where
police have discretion over whether to initiate the search.
216
In sum, beyond controlling for searches incident to arrest
with respect to Dr. MacDonald’s overall drug contraband finding,
the Government makes no effort to address the effect of search
type on the analysis.
The Government’s suggested inference that
ACSO applies a different search standard to Hispanics, even in
light of the Government’s other evidence, is thus nothing more
than
that
—
a
suggestion
—
and
is
too
weak
to
show
discriminatory effect by a preponderance of the evidence.
See
Bazemore
J.,
v.
concurring)
Friday,
478
(“[F]ailure
U.S.
to
385,
include
400
(1986)
variables
(Brennan,
will
affect
the
analysis’ probativeness.”); see also EEOC v. Int’l Bus. Machs.
Corp.,
583
variables
F.
may
Supp.
875,
render
the
906
(D.
results
Md.
of
1984)
a
(“Ignoring
multiple
key
regression
analysis useless.”).
The Government’s proposed inference is further undermined
by the testimony of Officer Dockery.
that,
once
calculus,
searches
little
incident
disparity
to
Officer Dockery testified
arrest
existed
are
between
Hispanics and non-Hispanics searched.
removed
the
from
percentage
(Doc. 153 at 53–58.)
the
of
In
other words, once the analysis focuses only on searches where
deputies
have
discretion
to
search,
the
purported
blanket
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.
217
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 poststop outcome study.
11.42%
of
stopped
For example, Officer Dockery testified that
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
percentages,
Hispanics
yet
it
seeks
and
to
non-Hispanics
argue
that
ACSO
in
different
uses
different
search standards based on ethnicity.
The
Government’s
suggested
inference
thus
requires
court to make a significant, unsupported assumption.
the
That is,
even assuming that the type of search had been controlled for,
218
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
searching Hispanics less often than non-Hispanics.
while
not
required
to
do
so
to
demonstrate
should
be
And again,
discriminatory
effect, the Government produced no instance in which an ACSO
officer
failed
performing
meet
(finding
multiple
2d
Hispanic
at
instances
person,
standard
627–28,
of
which
when
Cf.
Supp.
a
legal
suggested the differing application of search standards.
F.
of
requisite
have
959
search
the
would
Floyd,
a
to
636–37,
640–42,
unconstitutional
652–55
searches).
Officer Dockery’s testimony thus reinforces the conclusion that
Dr. MacDonald’s search findings lack probative value as to the
existence of discriminatory effect resulting from ACSO’s search
practices.
For all these reasons, the Government has not carried its
burden
of
proof
that
ACSO
engages
in
discriminatory
law
enforcement in post-stop searches.
v.
287(g) Practices
The evidence presented at trial also emphasized the role of
ACSO’s 287(g) MOA with ICE.
The Government emphasized three
219
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
authority.
unlawfully
in
any
manner
involving
any
287(g)
See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
1147 (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
(1990))
(emphasis,
internal
quotation marks, and brackets omitted)); Babbitt v. United Farm
Workers
Nat.
plaintiff
Union,
must
show
442
U.S.
289,
“realistic
298
danger
(1979)
of
(holding
sustaining
that
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
discriminatory intent and conduct.
at
trial
to
ACSO’s
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.
220
as
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,
conflicting
“Nobody
did
information;
this
and
on
purpose.
once
it
was
ICE
was
discovered
giving
in
management audit, as it was supposed to, it was fixed.”
152
at
166.)
The
TFO
position
was
not
created
the
(Doc.
for
a
discriminatory purpose.
The
Government
also
argues
that
several
investigations
carried out by the TFO provide evidence of Fourteenth Amendment
violations.
an
intent
None of those investigations, however, demonstrates
to
discriminate
on
the
part
of
instigated by or organized outside of ACSO.
ACSO.
Many
were
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;
also
see
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
using ethnicity as factor for roundups).
(enjoining
policy
The investigation of
Marxavi Angel-Martinez occurred only after an Alamance County
221
employee
reported
Alamance
County
to
ACSO
Library
that
was
a
Hispanic
receiving
employee
the
benefits
maternity
at
and
food stamps illegally through another person’s Social Security
number.
(Doc.
149
at
180,
202;
Doc.
154
at
86.)
The
investigation of newly-hired County employees followed a request
from Alamance County Manager, David Smith, who forwarded ACSO a
specific list of 17 County employees.
154 at 26–28.)
(Doc. 149 at 182–83; Doc.
Only after a citizen complaint of identity theft
did ACSO investigate and eventually arrest Juan Ariano Vazquez
for illegally using a citizen’s Social Security number.
149 at 183–85.)
(Doc.
Lastly, the very limited investigation of a
Hispanic man following a traffic accident (assuming this even
involved
287(g)
authority)
was
entirely
orchestrated
by
Commissioner Ann Vaughn, who “rais[ed] Cain” about an accident
in which she was involved.
The
second
287(g)
(Doc. 154 at 76.)
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
major.
clerk,
ACSO
captains,
(Id. at 38–39.)
and
then
approval
by
an
ACSO
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.
not
Stat.
§ 14-404.
The
Government,
222
however,
did
call
Major Holland and, when it called Major Brown as a witness,
failed to ask a single question about the gun permit background
checks.
all
Moreover, while the Government points to evidence that
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
witness
permit
testifying
applicants.
to
The
effect,
Government
such
as
the
produced
delay
processing or a denial of a gun permit application.
accepts
this,
therefore,
as
some
evidence
of
in
no
the
The court
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.
ACSO
The Government’s allegation and contention was that
targeted
Hispanics
for
arrest
so
that
Hispanic arrestees through the 287(g) program.
they
could
run
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
223
of
the
287(g)
program
to
effectuate this effort, the arrest policy changed well before
the 287(g) program began.
Moreover,
Dr.
MacDonald’s
(Doc. 147 at 33; Doc. 154 at 58–59.)
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. 97
Finally, as to ACSO’s
after-arrest conduct, there was no evidence as to how many (or
few) Hispanics arrested by ACSO were booked into the ACDC and
subjected
to
287(g)
questioning
available to the Government.
—
figures
almost
certainly
ACSO’s 287(g) officers in fact
processed only about one detainee per week at ACSO under the
287(g) program, “the bulk” of whom actually came from other ICE
offices and/or were arrested by non-ACSO officers.
163–64.)
the
(Doc. 152 at
Thus, ACSO officers contributed only infrequently to
number
discrediting
of
the
ICE
detainees
Government’s
housed
in
theory.
the
To
ACDC,
the
further
extent
the
Government argues that the Sheriff had a financial motive to
arrest Hispanics, therefore, the trial evidence revealed that
the
real
financial
motive
for
using
the
ACDC
for
a
287(g)
program was the revenue to be received from housing detainees
97
Because the Government failed to provide similarly situated data or
other evidence of improper arrests, there is no comparator or basis
for concluding that the Hispanics arrested were subject to unlawful
policing.
224
brought in by ICE and the eleven other law enforcement agencies
who were using the facility.
The
court
does
not
find
the
evidence
related
to
ACSO’s
287(g) program to establish a pattern or practice of Fourteenth
Amendment violations.
vi.
ACSO’s
Culture,
Discipline
Supervision,
and
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 ethnicallycharged language demonstrates a discriminatory effect.
At least as to discriminatory language, courts have held
that
such
constitute
language,
a
while
Fourteenth
undoubtedly
Amendment
inexcusable,
violation.
See
does
DeWalt
not
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).
225
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
evidence at trial.
used
by
some
ACSO
the
troubling
nature
of
some
of
the
First, the language, epithets, and slurs
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
language.
and
wholly
inappropriate
nature
of
that
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.
place
for
the
use
of
that
Nevertheless, there is simply no
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,
behavior.
and
a
sheriff’s
office
is
no
place
for
such
The court notes ACSO’s recent efforts to curb the
abuse of its email system.
If not prevented already, however,
226
the sending of racially- and ethnically- insensitive jokes and
games must stop.
Finally, the evidence at trial highlighted inconsistencies
in ACSO’s discipline.
Some conduct violating ACSO’s policies
was
other
disciplined,
efficient,
and
while
conduct
professional
was
not.
functioning
A
law
competent,
enforcement
organization requires consistent, regular discipline.
The type
of
at
language,
epithets,
slurs,
and
emails
presented
trial
should be addressed in a more timely, reliable, and diligent
manner.
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 (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.
2.
The
Fourth Amendment Claim
Government’s
second
claim
under
42
U.S.C.
§ 14141
alleges a pattern or practice of discriminatory law enforcement
227
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
against all persons in the County.
other
unlawful
purposes
(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.”).)
raises
a
The court therefore concluded that “the complaint
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
228
decision in City of Indianapolis v. Edmond, 531 U.S. 32 (2000),
and its progeny for guidance.
The
Fourth
Amendment
searches and seizures.”
protects
“against
U.S. Const. amend. IV.
unreasonable
This protection
“generally bars officials from undertaking a search or seizure
absent individualized suspicion.”
305,
308
(1997).
While
Chandler v. Miller, 520 U.S.
“some
quantum
of
individualized
suspicion is usually a prerequisite to a constitutional search
or
seizure,”
the
Fourth
Amendment
does
not
“irreducible requirement of such suspicion.”
Martinez-Fuerte,
428
U.S.
543,
560–61
impose
an
United States v.
(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 (1989); see also
Martinez-Fuerte, 428 U.S. at 560–61.
Law
enforcement
limited
circumstances
suspicion.
checkpoints
permitting
sometimes
a
lack
fall
of
within
those
individualized
See Mich. Dep’t of State Police v. Sitz, 496 U.S.
444, 455 (1990) (holding a sobriety checkpoint valid under the
Fourth
Amendment);
Martinez-Fuerte,
428
U.S.
(upholding a “brief” border patrol checkpoint).
at
560–64
Not every law
enforcement checkpoint, however, necessarily withstands Fourth
Amendment
scrutiny.
Under
the
Supreme
Court’s
decision
in
Edmond, courts should inquire as to a checkpoint’s “primary”
229
programmatic purpose to determine its constitutional validity.
531 U.S. at 45–46 (“[P]rogrammatic purposes may be relevant to
the validity of Fourth Amendment intrusions undertaken pursuant
to
a
also
general
scheme
Hunsberger
v.
without
Wood,
individualized
570
F.3d
546,
suspicion.”);
554
(4th
Cir.
see
2009)
(“[W]hen analyzing a search made as the result of a routine
police
procedure,
. . .
the
court
should
examine
the
programmatic purpose of the policy.”).
When
behind
directing
checkpoints,
courts
the
to
ascertain
Supreme
Court
challenges inherent in a purpose inquiry.”
46–47.
the
primary
purpose
“recognize[d]
the
Edmond, 531 U.S. at
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
enforcement checkpoints.
the
primary-purpose
analysis
for
law
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
governmental conduct from that which is lawful”).
abusive
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; see also United States v.
230
Gonsalves,
435
administrative
regardless
F.3d
64,
search
of
69
under
(1st
Cir.
Edmond’s
government
2006)
(upholding
primary-purpose
official’s
subjective
test,
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),
violate[d] the Fourth Amendment.”
“the
checkpoints
Edmond, 531 U.S. at 48.
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
(2001).
In
v.
City
Ferguson,
of
the
Charleston,
Supreme
Court
532
U.S.
applied
67,
83–84
Edmond
to
determine the primary purpose of a state hospital’s program of
drug testing pregnant women.
Id. at 70–71.
“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 (citing Edmond, 531 U.S. at 45–47).
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.
Court
distinguished
purposes of a program.
between
Id. at 81–86.
the
“ultimate”
Id. at 83–84.
Importantly, the
and
“immediate”
For the Edmond inquiry, a
program’s “immediate objective,” not its ultimate goal, is the
231
pertinent measure of a program’s primary purpose.
Id.
(“While
the ultimate goal of the program may well have been to get the
women
in
question
into
substance
abuse
treatment
and
off
of
drugs, the immediate objective of the searches was to generate
evidence for law enforcement purposes in order to reach that
goal.”); see also United States v. Davis, 270 F.3d 977, 982
(D.C. Cir. 2001) (“One must be careful not to fall into the trap
of thinking that any ‘but for’ cause of a roadblock represents
its primary purpose within Edmond’s meaning.”).
Court
thus
concluded
that,
because
the
The Ferguson
hospital
policy’s
“immediate objective” was unconstitutional, the policy violated
the Fourth Amendment.
Here,
the
532 U.S. at 84–86.
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
Fourteenth Amendment violation.
programmatic
purpose
could
violation
as
opposed
to
a
Nevertheless, assuming such a
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
232
for
checking
motor
vehicle
violations.
For one, ACSO’s checkpoint policy describes the
three types of permissible checkpoints.
2–4
(listing
special
standard
operations
(motor
as
(Gov’t Trial Ex. 113 at
vehicle),
available
informational,
checkpoint
and
options)).
The
“standard” checkpoint is set up for the purpose of determining
“compliance with motor vehicle laws.”
policy
states,
“Examples
for
which
(Id. at 2.)
this
As the
[standard]
. . .
checking station may be used include verification of drivers’
licenses,
belt
vehicle
compliance
(Id.)
registration
checks,
and
checks,
driving
insurance
while
checks,
impaired
seat
checks.”
“Informational” checkpoints function to seek information
regarding a crime, and “special operations” checkpoints focus on
the immediate apprehension of a suspect.
The
evidence
showed
that
ACSO
(Id. at 3.)
occasionally
conducted
checkpoints seeking information; Sheriff Johnson described such
checkpoints as attempts “to get information on” a crime.
154
at
149–50.)
Chief
Deputy
Britt
also
(Doc.
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.
149
at
108–09;
Doc.
150
at
84
(noting
(See, e.g., Doc.
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
233
someone “escaped from jail” or when “somebody was on the run in
the community.”
fact,
no
ACSO
(Doc. 154 at 105; see also id. at 150.)
officer
stated
that
they
had
conducted
In
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.”
at 9.)
check
He further stated, “The purpose of a checkpoint, [is] to
[the]
insurance.”
would
be
validity
of
driver’s
license,
registration,
(Id. at 27–28; see also id. at 10 (“The checkpoint
set
insurance.”).)
up
for
driver’s
license,
registrations,
or
Officer Anthony similarly testified that ACSO
primarily conducted motor vehicle compliance checkpoints.
148
(Id.
at
22–23;
see
also
Doc.
stating
that,
in
addition
147
to
at
204–05
checking
for
(Officer
valid
(Doc.
Anthony
driver’s
licenses, ACSO would also conduct drunk driving checkpoints).)
Officer
Culler
—
a
state
highway
patrol
officer
—
recalled
performing only “traffic check, drivers check” checkpoints in
conjunction with ACSO.
(Doc. 152 at 171–72.)
Deputy Conklin
reiterated that the “purpose of setting up” standard checkpoints
is “motor vehicle violations.”
(Doc. 150 at 82; see also id. at
234
90 (“We check driver’s license and registrations . . . .
don’t set them up specifically for drugs.
We
If we stop a vehicle
and either smell or see something, that would indicate to us we
move forward.”).)
Finally, Sergeant Crain testified that the
purpose of ACSO’s checkpoints was to “ensur[e] compliance with
North Carolina motor vehicle law primarily.”
(Doc. 151 at 112–
13.)
This
overwhelming
demonstrates
that
the
account
of
ACSO’s
primary
purposes
checkpoint
of
ACSO’s
practices
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
(recognizing
“suggested”
drivers’
that
and
Delaware
that
Supreme
checkpoints
licenses
permissible”);
(indicating
that
Court
“with
vehicle
v.
Prouse,
“[q]uestioning
of
the
precedent
purpose
of
registrations
440
all
U.S.
at
648,
oncoming
least
verifying
would
663
be
(1979)
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
235
driver’s
license,
vehicle
registration,
and
insurance
information at license checkpoint within bounds of the Fourth
Amendment), cert. denied, 134 S. Ct. 806 (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 (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,
conducted
and
a
although
special
no
testimony
operations
checkpoint,
appear to be constitutional as well.
(“[T]he
Fourth
appropriately
Amendment
tailored
would
roadblock
was
offered
those
that
ACSO
checkpoints
See Edmond, 531 U.S. at 44
almost
set
certainly
up
. . .
permit
to
catch
an
a
dangerous criminal who is likely to flee by way of a particular
route.”);
United
States
v.
Whitehead,
567
F.
(11th Cir.), cert. denied, 135 S. Ct. 308 (2014).
236
App’x
758,
767
The Government’s evidence to support its contention that
checkpoints were operated with the primary purpose of targeting
Hispanics
was
very
limited,
speculative at best.
and
the
little
that
exists
is
As evidence of a purpose to target or
discriminate against Hispanics in ACSO’s checkpoint operations,
the Government cites Dr. Banks’ study on checkpoint arrests and
Dr.
MacDonald’s
hit
rate
study,
statements
by
ACSO
officers
about the siting of checkpoints, and two specific checkpoints. 98
(See Doc. 158 at 140–42.)
First, the checkpoint studies of Drs. Banks and MacDonald
are unpersuasive to show a purpose to target Hispanics at ACSO
checkpoints.
use
of
Dr.
For the reasons already noted, the Government’s
Banks’
finding
that
36.8%
of
ACSO’s
checkpoints were of Hispanics is unreliable.
study
—
finding
that
searches
of
stopped
stops
at
Dr. MacDonald’s
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
98
Although not cited by the Government in its briefing as evidence of
checkpoint targeting of Hispanics, there are two other alleged
incidents involving ACSO checkpoints.
First, according to some
witnesses,
Sheriff
Johnson
directed
ACSO
officers
to
“arrest
Hispanics” at a checkpoint near a predominantly Hispanic mobile home
park.
(Doc. 158 at 11, 121.)
Second, a witness testified that an
ACSO officer misinterpreted an order by Sheriff Johnson at a
checkpoint but, upon clarification, the Sheriff told officers to
enforce the law in an equal manner.
(Doc. 147 at 156–59.)
As
observed previously, those two incidents evince no purpose to target
Hispanics.
237
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.
few
(Doc. 147 at 213; Doc. 149 at 217.)
of
ACSO’s
435
checkpoints
over
The placement of a
the
years
fails
to
demonstrate that those checkpoints were set up for the purpose,
primary or otherwise, of targeting Hispanics.
Banks’
permutation
study
indicated
that
Moreover, Dr.
little
“evidence
[existed] that checkpoints were being sited closer to Hispanic
communities than would have occurred if they were done just at
chance.”
(Doc.
demonstrated
that
153
at
ACSO
94–95,
99.)
administered
The
trial
checkpoints
evidence
all
over
the
County.
The first incident the Government cites similarly fails to
evidence
a
Hispanics.
purpose,
primary
or
otherwise,
of
targeting
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
Corporal
evidence
at
trial
demonstrated
that
Nicholson
conducted the checkpoint as a measure to show law enforcement
presence.
unspecified
He
did
direction
so
in
that
response
came
238
to
following
Sheriff
the
Johnson’s
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
between Deputy Keller and Crotts.
the
checkpoint
interaction
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’
speculative.
assumption
that
it
referred
(See Doc. 149 at 120, 125.)
much on cross-examination.
[Deputy Keller] meant.”).)
to
Hispanics
Crotts admitted as
(Id. at 125 (“I don’t know what
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
to
be
outside
of
Edmond’s
programmatic purpose inquiry, which “is not an invitation to
probe the minds of individual officers acting at the scene.”
Edmond, 531 U.S. at 48.
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,
239
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 (holding that a plaintiff
must “prove more than the mere occurrence of isolated . . . or
sporadic
discriminatory
classifications
were
acts”
“standard
but
rather
operating
that
procedure
the
[—]
the
regular rather than the unusual practice”); cf. Monell, 436 U.S.
at
690–91
(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.
Doc. 158 at 140–46; see also Doc. 1 ¶ 30.)
(See
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
contravene the Fourth Amendment.
730
(1983),
pretextual
the
lawful
Court
purpose
would
In Texas v. Brown, 460 U.S.
suggested
that
checkpoints
are
that
in
purpose are constitutionally prohibited.
checkpoints
fact
for
an
with
a
unlawful
Id. at 743–44; see
also Whren, 517 U.S. at 811–12 (“[T]he exemption from the need
240
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 (1987);
Brugal, 209 F.3d at 357 (citing Brown).
set
out
the
primary-purpose
test,
Prior to Edmond, which
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)); 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
241
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
Amendment.
“secondary
Edmond
left
that
purpose”
question
violates
the
unanswered
Fourth
but
in
a
footnote observed, “Because petitioners concede that the primary
purpose of the Indianapolis checkpoints is narcotics detection,
we need not decide whether the State may establish a checkpoint
program with the primary purpose of checking licenses or driver
sobriety
and
a
secondary
purpose
of
interdicting
narcotics.”
Edmond, 531 U.S. at 47 n.2; see also Anobile v. Pelligrino, 303
F.3d
107,
122
(2d
Cir.
2002)
(“The
Supreme
Court
has
not
directly addressed the constitutionality of searches subject to
a ‘mixed purpose,’ where the primary purpose is legitimate and
the secondary purpose is not.”).
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.
F.3d
489,
491
(5th
See United States v. Moreno-Vargas, 315
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
242
the enforcement of the immigration laws, regardless of whether
or not it could also be said to have a secondary programmatic
purpose
F.3d
of
at
drug
interdiction.”
979–83
(“[Edmond]
(emphasis
more
than
added));
suggests
Davis,
that
if
270
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).
Seizure
§ 10.8(a)
(5th
ed.
But see 5 Wayne R. LaFave, Search &
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,
administrative
Edmond.
two
programs
circuit
with
courts
secondary
have
purposes
upheld
when
other
applying
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.”
(2d Cir. 2009).
crime
control
See Lynch v. New York City, 589 F.3d 94, 102
The Second Circuit further observed, “[E]ven if
is
one
purpose
of
243
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.”
979–80.
Lynch, 589 F.3d at 102; see also Davis, 270 F.3d at
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
purpose.
in
crime
control,
it
was
not
the
primary
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) (internal
quotation marks omitted).
This
reading
of
Edmond
aligns
cases like Sitz and Martinez–Fuerte.
with
prior
Supreme
Court
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.”
Circuit
Edmond, 531 U.S. at 39.
observed
“that
aiding
Analyzing Sitz, the Second
criminal
prosecutions
drivers was another purpose of the checkpoints.
not the checkpoints’ primary purpose.”
of
drunk
It was simply
Lynch, 589 F.3d at 102.
Similarly, the Second Circuit reasoned that, in Martinez–Fuerte,
while
the
Court
held
that
the
primary
purpose
of
border
checkpoints was “policing the Nation’s borders,” that purpose
244
was likely not the sole purpose of the checkpoints.
U.S. at 39.
Edmond, 531
“[A]iding criminal prosecutions of smugglers of
illegal immigrants was . . . one purpose of the boarder [sic]
patrol checkpoints.
purpose.”
It was simply not the checkpoints’ primary
Lynch, 589 F.3d at 102.
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
licenses but an invalid secondary purpose.
at 47 n.2.
purpose
of
checking
See Edmond, 531 U.S.
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:
The record in Edmond suggested that enforcement of the
drug laws was not simply Indianapolis’s primary reason
for establishing the checkpoint program, but its only
reason.
A sign near each of the checkpoints
announced: “‘NARCOTICS CHECKPOINT __ MILE AHEAD,
NARCOTICS K–9 IN USE, BE PREPARED TO STOP.’”
If the
city’s only purpose was narcotics enforcement, it is
hard to explain why the Court framed the inquiry in
terms of its “primary” purpose, unless the Court
believed that it would be constitutional for a State
to “establish a checkpoint program with the primary
purpose of checking licenses or driver sobriety and a
secondary purpose of interdicting narcotics.”
Id. (citation omitted) (quoting Edmond, 531 U.S. at 47 n.2).
Based on this analysis, it appears that a checkpoint with
245
an
invalid
secondary
unconstitutional per se.
purpose
is
likely
not
rendered
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.
F.
Statute of Limitations
Sheriff
Johnson
argues
that
the
four-year
statute
of
limitations of 28 U.S.C. § 1658(a) 99 applies to the Government’s
§ 14141
claims
and
that
any
proven
discriminatory
acts
discrete incidents rather than a continuing violation.
157
at
127–29.)
He
therefore
contends
that
the
are
(Doc.
Government
cannot predicate § 14141 liability on any acts that occurred
prior to December 20, 2008, and that only three facts brought
out at trial fall within § 1658(a)’s four-year limitation.
at 128.)
(Id.
The Government’s post-trial brief presents no argument
99
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). 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.”
246
on this issue, but the Government previously submitted briefing
countering
this
argument
on
a
motion
for
summary
judgment.
(Doc. 106.)
The court previously addressed the statute of limitations
argument but deferred ruling at the time.
Supp.
applies
3d
to
at
504–06
claims
§ 1658(a)’s
(observing
and
four-year
not
that
evidence
limitations
See Johnson, 28 F.
statute
and,
period
even
of
limitations
assuming
applies,
that
Sheriff
Johnson failed to explain how the Government’s § 14141 “pattern
or
practice”
claims
accrued
before
December
20,
2008). 100
Similarly, in light of the court’s determinations on the merits,
it is a moot point and the court need not do so now.
III. CONCLUSION
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
100
See Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 346 (4th
Cir. 1994) (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”);
see also 28 U.S.C. § 1658(a) (“[A] civil action . . . commenced later
than 4 years after the cause of action accrues” is time barred.
(emphasis added)).
A “pattern or practice” claim, by definition,
requires multiple acts for a claim to accrue.
See United States v.
City of Parma, Ohio, 661 F.2d 562, 573 (6th Cir. 1981) (holding that a
pattern or practice claim “necessarily involves a number of
discriminatory acts, not a particular one from which the time for
bringing suit may be measured”).
247
and
Fourteenth
consideration,
concludes
that
Amendments.
as
detailed
the
After
more
Government
careful
extensively
has
demonstrating that they have done so.
not
and
above,
met
its
thorough
the
court
burden
of
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
Sheriff Johnson and on statistical analyses.
attributed
to
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.
enforcement
challenges
In the context of the significant law
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
trial.
Indeed, some of it — for example, the use of ethnic
248
presented
as
evidence
at
slurs
by
a
demonstrated
not
be
few
officers
offensive
tolerated
in
and
any
enforcement environment.
largely
in
reprehensible
civil
the
County
activity
society,
much
jail
that
less
in
—
should
a
law
Other evidence demonstrated potential
internal weaknesses in ACSO, such as lack of a system to monitor
selection
of
reporting
and
internal
checkpoint
locations,
condemnation
policy
manual,
of
and
weakness
conduct
a
lack
that
of
in
internal
violates
ACSO’s
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
ORDERED
that
the
claims
of
the
United
States
be
DENIED, that Judgment be entered for Defendant Sheriff Johnson,
and that the complaint (Doc. 1) be DISMISSED WITH PREJUDICE.
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.
/s/
Thomas D. Schroeder
United States District Judge
August 7, 2015
249
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