and she only wanted to know one thing where were you born this richard said i mean us citizen and officer gelsomino push where were you born miss richards said jamaica an district court erred in concluding that richards provided no direct evidence of discrimination in violation of the th amendment nd the district court erred in concluding that there are no disputed issues of material fa concerning whether there was probable cause in violation of the th turning to mr richards th amendment claim the equal protection component of the th amendment prohibits the selective enforcement of the law based on considerations such as race and national origin to defeat summary judgment on her equal protection claim this richards proper direct evidence of discriminatory effect and purpose direct evidence is evidence that on its face demonstrates an improper criterion serve as a basis for the adverse action a comment proximity to the challenge decision is a factor in determining whether a comment is direct evidence of human nature here there is direct evidence in the record that national origin was a motivating factor in officer gelsomino the decision to residen richards st when she approaching this richard she only wanted to know one thing before she arrested her where were you born or national origin that question was wholly irrelevant to the investigation and it was the only question she asked m interviewed her there was another officer that spoke of miss richards officer or loss there's no evidence in the record particularly for th amendment purposes that officer loss or officer gus amino ever communicated to each other or that he i'm not sure if there's a jamaican language but there is certainly evidence of the record you're correct in and o p c investigation mr richards and written a statement where he said i don't know how officer  say certain things because i was only speaking to rivers when we speak ms richards was only speaking in jamaican but there's no testimony in the record that officer johnson you know ever heard that or that she in because she heard of the yet the individual who miss richards talking it might have occurred to her that she had i'm not really understanding what you're saying you know where we were and she thought was jamaican the question this is not a magic words case we're not saying because she asked her where d she was born but that is the constitution violation the constitutional violation is when you arrest someone because d of where they were and here by asking this richards where she was more she clearly wanted to know and then she immediately made an arrest following her defense or factional defense is that while i had to fill out a because again the issue is not that she can't or won't ask the question for constitutional purposes her defense is that i have to ask that question because i was required to wear a jury could find that that's not true because one of the regulations says you can't do that nd it's the only question she asked she didn't ask what her name is she didn't ask her height weight or race all of those pieces of information are on a form you just look at  over i'm not sure that that's true your honor but in any event the form of fill it out does not contain miss richards national origin so if the whole point of asking was to put discriminatory effect is again the test would be whether there is direct evidence and direct evidence is evidence that on its face demonstrates an improper criterion served as a basis for the adverse the show disparate treatment you do not have to show disparate treatment if you have direct evidence otherwise we would be opening the door in selective enforcement cases where someone could come up to you have say what's your race and based on that saying this is the only time i'm going to do it but i'm going to arrest you because you're black and that would not be a constitutional violation if you have to show disparate treatment of other people there are the powerline of cases that say  class of one discrimination is discrimination under the equal protection clause but it is true that it is difficult to show direct evidence of discrimination so of simply asking that question is direct evidence of discrimination that it is a kind of magic words test it's not that that was the question that was asked it was officer gelsomino was immediate response to the answer when she asked where you were born and it was the only thing that she cared about when she immediately arrestor afterwards a reasonable inference of your you could draw was the reason that she was asking was she wanted to selectively enforce the law and when she got the answer that was she wasn't born in america she was born in a foreign country i decided to exercise my discretion to arrest them and skew it seems like a bizarre question to ask unless and i know the record doesn't show this i believe the officer refused to make statements during the police investigation but i was supposing that someone said if there was more than one person on this origin to identify her as a suspect ok looking at judge those berms really critical statement the general question where were you born is not on its face discriminatory on the basis of race or national origin do you have a problem with that i do your honor because it's not that the question on its face is discriminatory the question is does the question on its face mean that an improper criterion was being applied if so good on tests that matters in other words you would disagree that you can't say on its face whether it's discriminatory or not you have to know the context that's what i think your argument is that i would certainly agree with that so you would disagree with his next statement which is it is not direct evidence of discrimination that's correct i believe the following sentence in judge bates as order is that ms richards i'm sorry officer guilty i did not admit she was arresting on the basis of race or national origin and i certainly don't believe that is the test a question about your th amendment client how do you square your claim that the supreme court so i think the supreme court's decision certainly says that you are the main tenets of our argument remain the same which is you have to have a reasonable belief in the truth of the allegations that are being told to you as a police officer if you don't have reasonably truthful information you cannot make an arrest the nd point would be that you do have to do a reasonable investigation once you've received allegations and then finally a material omission to law is a problem for your credibility and at the point that officer jealous and you know interviewed other witnesses including mr johnson and found out there was much more to the context of this domestic dispute than she originally were then under the whole case in the circuit for that she did hear that i don't know if she certainly did she said on the scene but certainly with her interviews in the office of police complaint she confirmed that she heard them arguing the richer and especially could not hear what they were saying and it is have a comparative or a similarly situated individual who is not in the class or who is not arrested ms richards concedes she does not have that data would be another way to show that one class is treated differently than another in ms richards also conceives she discriminatory and i think that right there makes this fatal for a direct evidence claim direct evidence means that it's you establish the elements discriminatory fact in intent without need for further inference or presumption and is asking for everyone to speculate to speculate that the question had something to do with national origin number one and number two if the answer had any sort of factor in the issue of whether or not to these are questions that are on the arrest the rest form and if she was asking these questions i believe it's disputed as to whether she continued to ask additional questions in the car on transport but i think i think as you pointed out earlier ju the fact that it's kind of an awkward question or that it's clumsily in how it was asked before it the handcuffs were placed on it doesn't make it a constitutional violation you still have to have some sort of evidence that the question and the answer was  richards got into the face of ms grady and made her threats to commit bodily harm threats that were believed and so the awkward miss of the question particularly when it's been conceded that on its face is not discriminatory is simply not enough for direct evidence and i think the case law that we say you know groups shows that when you have direct evidence it has to be something really significant has to be drug hoary has to be a direct connection i think in the  richards would be using and so i do think that they are term is relevant in that way and here we just simply do not have the evidence either scrimmages for a fact or discriminatory purpose  take a couple minutes and reply i'd like to briefly address two points with st is the issue about the question of whether it's discriminatory on its face it's not clear exactly what that means but the question is mr richard was arrested right away when there was an allegation that he had committed a crime but again this is the issue is not that she simply walked over and wanted to arrest a jamaican the question is whether she applied a criteria before she made the arrest put it into a different context let's talk about employment context if i if someone sitting and they're about to be terminated and before they're terminated someone asks are you pregnant and they answer yes you're fire that would be on its face direct evidence that the reason for the termination was the answer to the question is the question are in private on its face discriminatory you know it's that context and it's the result that happens immediately after and again we did not move for summary judgment asking for a judgment as a matter of law we're simply saying these are all jury issues that have to be resolved i'm not sure that's a good analogy because the pregnant employee would have been brought in for some other reason stealing being late or something like that like the probable cause here and then that question was asked and she was five will it be of in that case it would be a mixed motive the question would be whether or not someone was making a decision at least in part one pregnancy but if we even if we keep it to the facts of this case it was a sole question that officer gets to me i wanted and the jury gives easily reject her argument it's just a factual argument that i was going to fill out a form but there are numerous reasons including that the metropolitan police department rejected that they put in their dereliction of duty notice you were supposed to put it in the form if you