Johnson et al v. Holmes

Filing 91

MEMORANDUM OPINION AND ORDER Granting 90 ORAL MOTION for Judgment as a Matter of Law by Andrew Holmes.. Signed by Senior Judge Norman K. Moon on 3/22/18. (hnw)

03/22/2018

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
BIANCA JOHNSON AND DELMAR CANADA,
Plaintiffs,

CASE NO. 3:16-cv-00016

v.
MEMORANDUM OPINION AND
ORDER

ANDREW HOLMES, ET AL.,
Defendants.

JUDGE NORMAN K. MOON

This memorandum opinion and order sets out my reasons for granting judgment to the
defendant at the close of plaintiffs’ evidence in this selective enforcement case. I must consider
the evidence in plaintiffs’ favor and not make credibility determinations. Fontenot v. Taser Int’l,
Inc., 736 F.3d 318, 332 (4th Cir. 2013). Dismissal is required if “a reasonable jury would not
have a legally sufficient evidentiary basis” to find for plaintiffs. Fed. R. Civ. P. 50(a); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–51 (1986).
As explained in my March 19th opinion, the law requires the plaintiffs to show Officer
Holmes’ actions had a “discriminatory effect.” Cent. Radio Co. Inc. v. City of Norfolk, Va., 811
F.3d 625, 634–35 (4th Cir. 2016); Martin v. Stewart, 499 F.3d 360, 366 (4th Cir. 2007); United
States v. Hare, 820 F.3d 93, 99 (4th Cir. 2016); United States v. Mason, 774 F.3d 824, 829 (4th
Cir. 2014). That means they must identify an individual “similarly situated” to them but who
was (1) a different race from them and (2) not subjected to the kind of treatment they were.
Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810, 825 (4th Cir. 1995); United States v. Mason,
774 F.3d 824, 830, 834 (4th Cir. 2014); Orgain v. City of Salisbury, Md., 305 F. App'x 90, 99–
100 (4th Cir. 2008); see United States v. Armstrong, 517 U.S. 456, 465 (1996); United States v.

Venable, 666 F.3d 893, 900 (4th Cir. 2012); United States v. Hastings, 126 F.3d 310, 315 (4th
Cir. 1997). Further, binding case law states that someone is “similarly situated” when his or her
“circumstances present no distinguishable legitimate enforcement factors that might justify
making different enforcement decisions with respect to them.” United States v. Hare, 820 F.3d
93, 99 (4th Cir. 2016) (quoting United States v. Venable, 666 F.3d 893, 900–01 (4th Cir. 2012));
see United States v. Hastings, 126 F.3d 310, 315 (4th Cir. 1997); United States v. Olvis, 97 F.3d
739, 744 (4th Cir. 1996).
Both the Supreme Court and the Fourth Circuit have explained that the standard in these
types of case is a “demanding” one. Armstrong, 517 U.S. at 465; Mason, 774 F.3d at 830. Proof
of that is shown by the Fourth Circuit’s statement in 2014 that it was unaware of “any cases at
the Supreme Court or in this circuit where [a] violation for selective law enforcement has been
found.” Mason, 774 F.3d at 830.
After the close of plaintiffs’ case, there was no legally sufficient evidentiary basis for the
jury to find the above standards satisfied.

Plaintiffs offered three arguments against this

conclusion.
First, they asserted that they should not be held to the “similarly situated” requirement
because it is “a standard of proof that’s simply not possible.” But the Supreme Court has already
rejected this argument in the related context of selective prosecution claims.
The Court of Appeals also expressed concern about the “evidentiary obstacles
defendants face.” But all of its sister Circuits that have confronted the issue have
required that defendants produce some evidence of differential treatment of
similarly situated members of other races or protected classes. In the present
case, if the claim of selective prosecution were well founded, it should not have
been an insuperable task to prove that persons of other races were being treated
differently than respondents. For instance, respondents could have investigated
whether similarly situated persons of other races were prosecuted by the State of
California and were known to federal law enforcement officers, but were not
prosecuted in federal court. We think the required threshold—a credible showing
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of different treatment of similarly situated persons—adequately balances the
Government’s interest in vigorous prosecution and the defendant's interest in
avoiding selective prosecution.
United States v. Armstrong, 517 U.S. 456, 470 (1996). What’s more, I am simply not permitted
to disregard the Fourth Circuit’s decisions in Hare, Mason, Sylvia Development, Orgain,
Hastings, and other cases that require proof of “similarly situated” individuals of another race in
order to show the discriminatory effect element.
Second, the plaintiffs assert that statistics about Officer Holmes’ arrests and citations
create an inference of discriminatory effect because they show he arrests and cites black citizens
more often than fellow officers and at a disproportionally higher rate than the population of black
citizens in Albemarle County and in his patrol area. But I already ruled in my March 19th
opinion that these statistics are inadmissible to prove discriminatory effect, based on Federal
Rules of Evidence 401 and 403, as well as the lack of any expert testimony to explain the data.
(Dkt. 84 at 7–13). I reaffirm and expressly incorporate that ruling into this opinion, which was
consistent with the limiting instructions I gave the jury during testimony.1

1

At oral argument on the Rule 50 motion, plaintiffs put a slightly different gloss on their
position based on Holmes’ trial testimony. They said that discriminatory effect is apparent
because Holmes (1) testified he was especially interested in narcotics crime, yet (2) he stated that
black citizens do not commit drugs crimes more often than any other race, but (3) the statistics
show he still arrested and cited black citizens at a far greater rate, so therefore—the implication
goes—(4) he must have been not taking law enforcement action against “similarly situated”
citizens of a different race.
But nothing about the argument cures the deficiencies with the statistical evidence
identified in my March 19th opinion. Indeed, it only highlights the fact that the statistics
completely fail to account for the strictures of the “similarly situated” analysis—i.e., that another
citizen of a different race presented “no distinguishable legitimate law enforcement factors that
might justify different enforcement decisions.” The stats are broken down by arrests and
citations, but the issue in this case is a search warrant. The stats do not break down by particular
crime, but the search warrant in this case was for evidence underlying a driving suspended
citation that plaintiff Canada denied receiving. And, as to premises (1) and (2) of plaintiffs’
argument, the stats do not break down by particular type of drug crime, a significant point given
that the Supreme Court has rejected the assumption that all races commit all crimes (and even all
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Third and finally, plaintiffs pointed to Holmes’ testimony that—despite issuing several
dozen driving suspended citations over the years—this case was the first time he obtained a
search warrant to find the suspension notice sent to the driver.

In plaintiffs’ view, this

unprecedented decision shows discriminatory effect, but it does not.
Most centrally, plaintiffs adduced no evidence that other drivers who Holmes cited for
driving suspended also denied—like plaintiff Canada—receiving a suspension notification. That
denial is critical to determining whether those other drivers presented “no distinguishable
legitimate enforcement factors that might justify making different enforcement decisions,” Hare,
820 F.3d 99; Venable, 666 F.3d 900–01, like whether to obtain a search warrant of their house,
because Virginia law requires proof that the driver receive notice of his suspension. Johnson v.
Holmes, 204 F. Supp. 3d 880, 887 (W.D. Va. 2016); Hodges v. Virginia, 64 Va. App. 687, 692
(2015); Carew v. Virginia, 62 Va. App. 574, 577 (2013)). As Judge Conrad previously put it in
this case:
Because the Commonwealth must ultimately prove that a driver had received
actual notice that his license had been suspended, it would not have been
unreasonable for an officer to believe that the suspension notification form that
Holmes sought to find at the plaintiffs’ residence would aid in prosecuting Canada
for driving on a suspended license. Not only would the plaintiffs possession of
such evidence help to establish actual notice of the suspension, it might also prove
helpful in impeaching Canada or rebutting any defense that he could raise at trial
[on the driving suspended charge].
Johnson, 204 F. Supp. 3d at 888.
Put differently, because it was a legitimate law enforcement consideration for Holmes to
search plaintiffs’ home in hopes of finding the suspension notice, the plaintiffs must identify a

drug crimes) in equal proportion. Armstrong, 517 U.S. at 469–70 (citing statistics that 90% of
crack cocaine convictions were of black citizens but over 90% of LSD dealers were white
citizens). Simply put, a jury properly instructed on the meaning of the “similarly situated”
requirement could not find a discriminatory effect from the statistics.
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comparator of a different race who was in the proverbial same boat (i.e., denied receiving a
suspension notice) but against whom Holmes did not obtain and execute a search warrant. They
have failed to do so and thus cannot establish the discriminatory effect element.2
*

*

*

In sum, defendant’s motion for judgment as a matter of law is GRANTED. Judgment
will subsequently be entered.
It is so ORDERED.
22nd
Entered this _____ day of March, 2018.

2

This is not to suggest that denial of the suspension notice is the only legitimate law
enforcement consideration that would have to be (but has not been) part of the “similarly
situated” analysis. For instance, Holmes knew that plaintiff Canada had a 2009 drug arrest and
that Canada’s name was familiar to the local drug task force, and an (admittedly unidentified)
informant supposedly told Holmes that Canada sold drugs. It thus could have been a legitimate
(i.e., race-neutral) law enforcement consideration for Holmes to use the suspension notice search
warrant as a pretext to look for evidence of drug crimes he thought might exist based on the facts
he was aware of. See Whren v. United States, 517 U.S. 806, 813 (1996); Ashcroft v. al-Kidd, 563
U.S. 731, 738–39 (2011); United States v. Van Dreel, 155 F.3d 902, 905 (7th Cir. 1998) (“That
the Drug Task Force officer might have hoped to find evidence relating to cocaine trafficking is
irrelevant to the Fourth Amendment analysis under Whren.”). But plaintiffs have no evidence
that Holmes suspected a citizen of a different race of drug activity but declined to obtain a search
warrant against him or her.
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