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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Farm Labor Organizing Committee, et al.,

Case No.3 :96CV7580

Plaintiffs,

v.

Order

The Ohio State Highway Patrol, et al.,

Defendants.

This is a civil rights case in which plaintiffs seek preliminary relief from allegedly unlawful and unconstitutional practices by defendants. This court has jurisdiction pursuant to 28 U.S.C. §1331. Pending is plaintiffs' renewed motion for a preliminary injunction. (Doc. 37). Defendants filed a memorandum in opposition (Doc. 47), and plaintiffs filed a reply. (Doc. 49). For the following reasons, plaintiffs' motion shall be granted in part and denied in part.
Background Plaintiffs are Hispanic migrant workers who claim that the Ohio State Highway Patrol (OSHP) has violated their constitutional rights by stopping, searching, and detaining them on the basis of race or national origin, interrogating them about their immigration status, and confiscating immigration documents without eitherjustification or providing substitute documents. Plaintiffs seek

A072A (Rev.8/82)

2 a preliminary injunction ordering the OSHP to stop these practices. Plaintiffs' earlier motion for a preliminary injunction was denied without prejudice on June 24,1997, because none of the named
plaintiffs had ever been stopped, and therefore no named plaintiff had standing. (Doc. 31). An amended complaint was filed adding plaintiffs Aguilar and Esparza, who have been stopped by the OSHP and questioned about their immigration status and had their immigration documents seized. (Doc. 44).
A. Standing The first step in the preliminary injunction analysis is standing. To establish standing the plaintiffs must show: 1) injury in fact; 2) traceability; and 3) redressibility. Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996). The injury in fact prong requires that the plaintiff has suffered a concrete or particularized injury that is actual or imminent. Id. Plaintiffs are aliens. As such, they possess alien registration receipt cards, also known as "green cards.tI All aliens over the age of eighteen must at all times have possession oftheir green cards. 8 U.S.C. §1304(e). An alien failing to possess his or her green card faces a fine of not more than $100 or imprisonment not to exceed thirty days, or both. Id. Plaintiffs allege unjustified seizure and retention of green cards by OSHP troopers. If this allegation is proven, defendants have exposed plaintiffs to criminal penalties including possible imprisonment. Thus, if plaintiffs prove an unjustified seizure and retention of green cards, they have shown a concrete particularized injury. 1
IThe parties did not addressed the question of whether return to plaintiffs oftheir green cards has mooted their demand for preliminary injunctive relief. There are two reasons this action is not mooted by the return of green cards. First, plaintiffs are a class whose claims are not dismissed as moot due to the resolution ofthe class representative's claims. Sosna y. Iowa, 419 U.S. 393 (1975), ("the issue sought to be litigated escapes full appellate review at the behest of any single challenger,
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A072A

3
These actions are clearly traceable to the defendant, whose troopers are accused of stopping
the plaintiffs, questioning them about immigration status, and confiscating their immigration
documents. If issued, an injunction against these practices will clearly redress plaintiffs' grievances.
Therefore, plaintiffs meet the three requirements of standing and can proceed with their motion for
a preliminary injunction.
B. Requirements For Injunctive Relief
Before issuing a preliminary injunction, a district court must consider:
1) the likelihood that the party seeking the preliminary injunction will succeed on the merits ofthe claim; 2) whether the party seeking the injunction will suffer irreparable harm without the injunction; 3) the probability that granting the injunction will cause substantial harm to others; and 4) whether the public interest is advanced by the issuance of the injunction.
Dayton Area Visually Impaired Persons v. Fisber, 70 F.3d 1474, 1480 (6th Cir.1995) {g!ing
Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994)). Those four considerations are Itfactors to
be balanced, not prerequisites that must be met." In re DeLorean Motor Co., 755 F.2d 1223, 1229
(6th Cir.1985). Thus, "[n]ot all of these factors fully need to be established for an injunction to be
proper," and no single factor is to be "given controlling weight." Michigan State AFL-CIO v. Miller,
103 F.3d 1240, 1249 (6th Cir. 1977). Accord, Blue Cross & Blue Shield Mutual of Ohio v.
does not inexorably become moot by the intervening resolution of the controversy as to the named plaintiffs,"). Second, even if this were an individual action it would not be mooted because this is a situation that is capable of repetition but evasive ofjudicial review and redress. Where the facts that are the basis of the litigation expire before judicial review, but are capable of repetition, there is a live controversy. Southern Pacific Terminal Co. y. Interstate Commerce COmmission, 219 U.S. 498,515 (1911), Roe v. Wade, 410 U.S. 113, 124-25 (1973). In United States y. New York Tel. Co., 434 U.S. 159, 165 (1977), the Supreme Court found a live controversy where the judicial order that was the basis for the suit had expired. Because such orders would always expire before judicial review, and the challenged practice could be repeated, the controversy was not moot. Here, the OSHP could continue to seize green cards unlawfully, subjecting the victims to potential criminal penalties, and yet avoid legal redress by returning the green cards before trial.

4 ColumbialHCA Healthcare et aI., 110 F.3d 318,334 (6th Cir. 1997) ("none of the four factors is to be deemed conclusive on its own [and] each need not be viewed in isolation from the others, solely as an independent variable").
One aspect of the analysis is certain: a preliminary injunction shall not issue where there is no likelihood of success on the merits. Sandison v. Michi2an Hi2h School Athletic Association, 64 F.3d 1026, 1037 (6th Cir. 1995). The certitude of success on the merits need not, however, be absolute. The Sixth Circuit recognizes that a preliminary injunction may be granted where the moving party only shows "sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Friendship Materials. Inc. v. Michigan Brick. Inc., 679 F.2d 100, 103 (6th Cir. 1982) (quoting Sonestalnt'l Hotels Corp. v. Wellington Assocs., 483 F.2d 247,250 (2nd Cir. 1973)). As detailed below, I conclude there are "sufficiently serious questions going to the merits" of plaintiffs' allegations and a balance of hardships "tipping decidedly" toward plaintiffs.
1. Likelihood of Success on the Merits a. The Fourth Amendment Applies to this Situation A threshold question is whether the Fourth Amendment applies to the case at bar. I have little difficulty in concluding that it does. The Fourth Amendment, which applies to citizens and aliens alike, Almeida-Sanchez v. United States, 413 U.S. 266,273 (1973), protects the "right ofthe people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. State officials must comply with the Fourth Amendment when discharging their official duties; thus, OSHP troopers must act in a manner and under circumstances compatible with the Fourth Amendment.
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5 As its language expressly indicates, the Fourth Amendment "protects two types of expectations, one involving 'searches,' the other 'seizures.'" United States v. Jacobsen, 466 U.S. 109, 113 (1984). The Fourth Amendment does not bar all contact between the police and citizenry. It does, however, "prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976). Although "searches and seizures [must] be founded upon an objective justification," no such justification is required where there has been neither a search nor a seizure. United States v. Mendenhall, 446 U.S. 544, 551 (1980). As stated in Mendenhall: As long as a person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification ... We conclude that a person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Id. at 553-54. An officer "seizes" an individual only where the officer impairs the individual's right to leave. When a seizure occurs, the Fourth Amendment requires that the seizure have been reasonable. Terry v. Ohio, 392 U.S. 1, 16 (1968). Moreover, even though a seizure was lawful, it can become unlawful by becoming unreasonably intrusive or prolonged. The scope and duration of a seizure must reasonably relate to the underlying justification for the seizure. Once that justification expires, the seizure must end. As
stated by the Supreme Court in ThI:o:, 392 U.S. at 19-20, "in determining whether the seizure and
search were 'unreasonable' [the] inquiry is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Thus, "the scope of the search must be 'strictly tied to and justified
A072A (Rev.8J82)

6
by' the circumstances which rendered its initiation possible." .til at 19. An officer must confine his
or her investigation "strictly to what was minimally necessary" to achieve the justified, proper
objective. ilL at 30. ~ also Florida v. Royer, 460 U.S. 491, 500 (1983) (officer's search must be
"tied to and justified by the circumstances which rendered its initiation possible"). In light ofthe foregoing, the traffic stops giving rise to this lawsuit indisputably were seizures
under the Fourth Amendment. See United States v. Bri~oni-Potice, 422 U.S. 873 (1975) (traffic stops implicate the Fourth Amendment). Even if the stops complied with the Fourth Amendment,
the officers' subsequent activities must also have met Fourth Amendment requirements: 1.&:., those
further actions must have reasonably been related to the purpose--to enforce Ohio's traffic laws--of
the stop. Th!n, 392 U.S. at 30.
h. Stopping, Detaining, and Searching Motorists Based on Hispanic Origin or Appearance
The first issue--whether the officer was justified in stopping the plaintiffs' vehicle--asks if "the facts available to the officer at the moment of the seizure or the search 'warrant a man of
reasonable caution in the belief that the action taken was appropriate." kL at 21-22. "Anything less," the Court stated in Th!n, "would invite intrusions on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction." llL Thus "in determining whether
the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and
unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled
to draw from the facts in light of his experience." .tiL at 27. Reasonableness, in all cases, must be
measured by an objective standard, not by the subjective impressions of the particular officer. Delaware y. Prouse, 440 U.S. 648, 654-55 (1979).
A072A (Rev. 8/82)

7 There can be no question that a seizure based solely on race or ethnicity can never be
reasonable. In Brignoni-Ponce, 422 U.S. at 884, the Supreme Court, curtailing the authority of
federal agents to engage in questioning and searches ofpotentially illegal immigrants, declared that
officers may stop vehicles "only if they are aware of specific articulable facts, together with rational
inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who
may be illegally within the country." .ki In other words, an officer must have "particularized
suspicion" before he or she stops, detains, and questions a potential illegal alien. In finding the
officers' actions in Brignoni-Ponce unconstitutional, the Supreme Court stated:
In this case the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens. At best the officers had only a fleeting glimpse ofthe persons in the moving car, illuminated by headlights. Even if they saw enough to think the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable beliefthat the car concealed other aliens who are illegally in the country. Large numbers ofnative-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.
hL at 885-87. See ~ Murillo v. Musegades, 809 F. SUppa 487,499 (W.D. Tex. 1992); United
States v. Ramos, 753 F. SUppa 75, 79-80 (W.D.N.Y. 1990); Ramirez, 599 F. SUppa at 1283. As
recently stated by the Sixth Circuit in a case involving seizure of an airline passenger:
citizens are entitled to equal protection of the laws at all times. If law en:b. e t adopts a policY, employs a practice, or in a given situation takes steps to 'mitate investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred.
A072A

United States v. Avery,

F.3d

8 (6th Cir. 1997) (1997 WL 690734, *11 (6th Cir.

(Ky.)).

In the case at bar, if defendants stopped the plaintiffs' vehicle for violations of motor vehicle

laws, the stop was "reasonable" and thus not violative of the Fourth Amendment. If, however, the

stop was made because of "inarticulate hunches" based solely on plaintiffs' Hispanic appearance,

then the stop was unreasonable and violated the Fourth Amendment.

Defendants claim that the plaintiffs were pulled over because Aguilar's car had a burned out

headlight. (Doc. 47 at 3). Plaintiffs admit that they were stopped for a malfunctioning parking light.

(Doc. 49 at 11). Therefore, plaintiffs do not dispute that there is an objective basis for the initial stop. Under United States v. Ferguson, 8 F.3d 385, 391 (~Cir.l993), a traffic stop is lawful, regardless

of any subjective motivation on the officer's part, if the stop has an objectively lawful basis under

the applicable traffic laws. Because there is no dispute that the initial stop of plaintiffs was

reasonable under this standard, plaintiffs have presented insufficient proof ofa substantial likelihood

of success on the merits of their claim of initial stops based on ethnicity.

c. Questioning As To Immigration Status

The plaintiffs Aguilar and Esparza challenge defendants' questioning of them about their

immigration status. An initial question is whether ~ officers can ask questions about a person's

status under federal immigration laws.

The federal government possesses exclusive power to regulate immigration. DeCanas v.
rum Bica, 424 U.S. 351 (1976). See Oceanic Steam Nayigation Co. v. Stranahan, 214 U.S. 320,339

(1909) (,'Over no conceivable subject is the power of Congress more complete than it is over the

admission of aliens"). Congress has exercised its constitutional authority to regulate immigration by

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9 enacting the Immigration and Nationality Act (INA), 8 U.S.C. §1101 et seq. The INA and its accompanying regulations comprehensively address issues relating to immigration, including authorized entry, length of stay, residence status, and deportation. The INA, furthermore, delegates enforcement duties to the Immigration and Naturalization Service (INS). No state can add to or reduce the force of immigration regulations enacted by Congress. Takahashi v. Fish & Game Corom'n, 334 U.S. 410, 419 (1948).
In light of the preemptive reach of federal authority over immigration, the states, at least arguably, have no interest in, and thus no role to play in the enforcement of federal laws relating to aliens. As a general rule, however, local police are not precluded from enforcing federal statutes. Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983). Thus, where state enforcement activities do not impair federal regulatory interests, concurrent enforcement activity by local and federal enforcement authorities is authorized. Florida Avacado Growers v. Paul, 373 U.S. 132, 142 (1963).
These general doctrines about the enforceability of federal law by local police were applied to immigration laws in Gonzales. In that case the Ninth Circuit concluded that Unothing in federal law precluded [local] police from enforcing the criminal provisions of the Immigration and Naturalization Act [and] Arizona law authorizes local officers to arrest for violations" of the Act. 722 F.2d at 477. In reaching its conclusion that local police could enforce federal immigration laws, the Court in Gonzales examined whether: 1) federal law precluded concurrent enforcement by state officers of federal criminal immigration laws, and 2) state law affirmatively authorized local law enforcement officials to enforce federal immigration laws.
A072A (Rev.8182)

A072A

10
In Gonzalez, the court detennined that the Arizona legislature authorized police authorities
in that state to enforce criminal provisions of the federal immigration laws. Arizona's peace officers
are authorized to make warrantless misdemeanor arrests. Federal immigration laws include
misdemeanors.2 Because Arizona peace officers can make misdemeanor arrests, the court in
Gonzales concluded that Arizona peace officers could make misdemeanor arrests based on violations
of criminal provisions of the federal immigration laws. 722 F.2d "at 476.
I agree with the court in Gonzales that federal law does not preclude local or state
enforcement ofthe penal provisions of the INA. As stated in Gonzales, the INA does not evidence
"an intent to preclude local enforcement of the Act's criminal provisions." hL at 474. Likewise, it
cannot be inferred that "the federal government has occupied the field of criminal immigration
enforcement" to the exclusion of local and state authorities. Id. at 474-75.
Moreover, the explicit language of §1324(c) of the INA leaves open the possibility of local
or state assistance in the enforcement of federal immigration laws: 'In]o officer or person shall have
2 The pertinent provisions of the federal immigration laws are located at 8 U.S.C. §1324(c) (penalties for document fraud) and §1325 (improper entry by aliens). Defendants also claim authority to enforce 18 U.S.C. §1028(6) (possession of stolen identification documents), 18 U.S.C. §1426 (reproduction ofnaturalization or citizenship papers), 18 U.S.C. §1546 (fraud and misuse of visas, pennits, and other entry documents), and O.R.C. §2913.31 (forgery).
Under federal law, any offense punishable by more than one year in prison is classified as a felony while any offense punishable by less than one year is either a misdemeanor or infraction. 18 U.S.C. §3559. A violation of §1324(c) subjects an individual to a cease and desist order along with a civil money penalty. Section 1325, improper entry by an alien first-time offender, is a misdemeanor that occurs at the time of illegal entry. See United States v. Rincon-Jimenez, 595 F.2d 1192, 1193-94 (9th Cir. 1979).
Violations of 18 U.S.C. §1028(6) range from felonies to misdemeanors depending on the extent of the fraud. The penalty for violating §1426 is a fine of not more than $5,000 or imprisonment for not more than five years, or both. A transgression of §1546 is also a felony, punishable by a fine ofup to $2,000 or imprisonment of not more than five years, or both. There are varying degrees offelonies for violating the Ohio forgery statute, O.RC. §2913.31, but all violations are felonies.

11 authority to make any arrest for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, ... and all other officers whose duty it is to enforce criminal laws." Thus, any officer, including officers of the OSHP, "whose duty it is to enforce criminal laws" may, consistent with the doctrine of preemption, enforce the criminal prohibitions of the INA.
In Ohio, officers ofthe OSHP are peace officers under O.R.C. §2935.01(B). '''Peace officer' includes a sheriff, deputy sheriff, marshal, ... [and] the superintendent and troopers of the state highway patrol." OSHP troopers are authorized to enforce criminal laws on state property. O.R.C. §5503.02. This also applies to the turnpike. O.R.C. §5503.31. An offense is defined in O.R.C. §2935.01(D) as including,"felonies, misdemeanors, and violations of ordinances of municipal corporations and other public bodies authorized by law to adopt penal regulations." Therefore, OSHP troopers are authorized by Ohio law to enforce the criminal provisions of federal immigration law. This, in turn, means that state officers can, at least in some circumstances, question motorists about their alienage and immigration status.
The constitutionality of such questions to motor vehicle occupants and drivers depends on the second ~ inquiry: namely, whether such investigation is "reasonably related in scope to the justification for [its] initiation" or "reasonably designed" to meet the objectives which justified the
interference in the first place. Isan, 392 U.S. at 29. In the context of this case, this means that the
intrusiveness (i.e., questions about alienage or immigration status) and duration ofthe stop must bear a reasonable relation to either the underlying traffic offense or other circumstances that come lawfully to the officers' attention during the stop. ~ United States v. Mesa, 62 F.3d 159, 161-62 (6th Cir. 1995) (search following a traffic stop improper absent reasonable suspicion for further
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A072A

12 questioning or investigation; "[0]nce the purposes of the initial traffic stop were completed, there is no doubt that the officer could not further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further
detention") . An example ofhow an investigation must be reasonably related in scope to the justification
for the initial stop appears in Brignoni-Ponce. 422 U.S. 873 (1975). There the Supreme Court held that due to the difficulty ofpolicing the Mexican-United States border, a brief stop and investigation
for illegal aliens was justified. kL at 881. The investigation was limited to the circumstances that led
to the stop, i.e., a suspicion that the car contained illegal aliens: As in ~, the stop and inquiry must be 'reasonably related in scope to the justification for their initiation.' 392 U.S. at 29, 88 S.Ct. at 1884. The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.
kL at 881-82. Because the initial stop was to check for illegal aliens, inquiries about citizenship were
justified. Plaintiffs Aguilar and Esparza were detained for a traffic violation. An inquiry by the OSHP
as to an individual's immigration status cannot be !treasonably designed" to meet the objectives of a traffic stop or "strictly tied to and justified by" the circumstances that led to the stop and ensuing seizure. Therefore, detention beyond the time needed to issue a warning or citation for a malfunctioning light, must be based on articulable facts giving rise to reasonable suspicion. Mesa, 62 F.3d at 162.3
3 Officers may also run a computer check on the driver's license, and the vehicle registration. United States v. Bradshaw, 102 F.3d 204, 212 (6th Cir. 1996). However, once the license and registration check is complete and the citation is written, any further detention or questioning must

A072A

13
In the context of a conventional traffic stop, therefore, any inquiry about alienage or immigration status must be based on either reasonable suspicion about such status or the occupants' consent. In the instant case, there has been no showing that the officers had reasonable suspicion or cause, aside from the plaintiffs' Hispanic appearance,4 to believe that they may have been aliens. The police report, attached as defendants' exhibit A, shows that the plaintiffs had an Illinois driver's
license and an Illinois identification card. (Doc. 47, exh. A). This proves that plaintiffs did not have
to produce their green cards as their only form of identification. There is no other evidence in the record or argument by defendants as to the specific facts creating reasonable suspicion for questioning about immigration status.
At some point during the encounter, the drug detection dog "alerted." The record is not clear on the question of whether the alert occurred before or after the inquiry about immigration status and seizure ofthe green cards. I conclude that it is more likely than not that the alert came after, rather than before such inquiry and seizure because there is no indication in the record that the plaintiffs were told they were under arrest before the green cards were taken from them. Had the dog already alerted, it is highly likely that the officers would have focused on the apparent presence of drugs, rather than taking the time to ask about immigration status and seize the green cards.
Defendants, apparently aware of the lack of any other basis for questioning the plaintiffs about their immigration status, contend that plaintiffs consented to such questioning and, ultimately,
be based on a reasonable suspicion or consent. ~, ID.lI2.D!. 4Once the activities incident to the traffic stop had been completed, any further detention of
the plaintiffs that was motivated by a desire, based solely on their Hispanic ethnicity, to question
them about their immigration status was unlawful under the Equal Protection Clause. See~, F.3d at ,WL 690734 at 4 .

14 seizure of their green cards, which, defendants assert, were voluntarily supplied as a means of identification. (Doc. 47 at 3). When a law enforcement activity is conducted pursuant to valid consent, no claim can be made that a Fourth Amendment violation has occurred. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Accord, ~ 392 U.S. at 16 (when a person voluntarily cooperates with a law enforcement officer, that individual is in no meaningful way detained and no seizure occurs for Fourth Amendment purposes).
Where the validity of a search rests on consent, the state has the burden ofproving that the necessary consent was obtained and that such consent was freely and voluntarily given. This burden is not satisfied by merely showing submission to a claim of lawful authority. Royer, 460 U.S. at 497; Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979); Bumperv. North Carolina, 391 U.S. 543, 548-49 (1968). As stated by the Supreme Court: tithe Fourth and Fourteenth Amendments require [that the government] demonstrate that the consent was in fact voluntarily given and not the result ofduress or coercion, express or implied." Schneckloth, 412 U.S. at 248-49. In addition, according to the Supreme Court:
while most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature ofthe response. Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave ifhe had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment. INS v. Del~ado, 466 U.S. 210,216 (1984). Plaintiffs raise a serious challenge to the alleged consensual nature of defendants' questions to them about their immigration status and production oftheir green cards. Being stopped for a minor traffic offense and given a ticket or warning is one thing; being questioned in a forceful tone by
A072A (Rev.8I82)

15 several officers, one of whom has arrived on the scene with a drug-sniffmg canine, is quite another. Plaintiffs have shown a substantial likelihood of success on the issue oflack ofconsent. In sum, with regard to defendants' practice ofquestioning motorists about their immigration status, plaintiffs have raised "sufficiently serious questions going to the merits to make them a fair ground for litigation." Friendship Materials Inc., 679 F.2d at 103.
d. Confiscation of Immigration Documents Finally, plaintiffs challenge defendants' occasional practice of confiscating green cards. On registering with the INS and providing certain personal information and fingerprints, a legal alien is issued "a certificate of alien registration or an alien registration receipt card." 8 U.S.C. §1304(d); 8 C.F.R. §264.1. These documents provide legal aliens with proofoftheir alien registration and legal status. Green cards playa significant role in the day-to..day lives of legal aliens. All legal aliens over the age of eighteen are required to carry their green card at all times and failure to do so is a misdemeanor. 8 U.S.C. §1304(e). Furthermore, a green card is a preferred way to procure other important forms of identification (i.e., a social security card or driver's license) and establish eligibility for a variety of governmental programs, including Medicaid, unemployment
compensation, food stamps, and aid to families with dependent children. Etuk v. Slattery, 936 F.2d
1433, 1437 (2nd Cir. 1991); Etuk v. Blackman, 748 F. Supp. 990, 992 (E.D.N.Y. 1990). Finally, and perhaps most importantly, a legal alien can use his or her green card to establish eligibility to work. hL~ also Blackman, 748 F. Supp. at 992.
Because the green card is "the most widely utilized and accepted means of proving [legal alien] status,It which in tum enables lawfully admitted aliens to provide for themselves and their
A072A

16
dependents, the Second Circuit held in Etuk v. Slattery that the federal immigration laws require the
INS to provide temporary proof of legal status to aliens whose green cards have been seized. 936 F.2d at 1448. I agree with the analysis and conclusion in Slattery that federal law grants legal aliens the right to possess suitable permanent or temporary documentation by which to prove their legal status after a green card has been seized.
Ifthe INS cannot confiscate a green card without providing a temporary substitute, neither can the OSHP. Just as federal agents "cannot completely interfere with a [legal alien's] ability to earn a living and provide for himselfor family,t' Slattety, 936 F.2d at 1447, so too the OSHP cannot interfere so completely with such ability under federal law.5
Plaintiff Aguilar stated in his affidavit that Trooper Kiefer demanded his green card while he was locked in the back seat of the police cruiser. (Doc. 37, Exh. 1). Plaintiff Esparza stated in her affidavit that a trooper grabbed her wallet and dug through it until he found her green card. (Doc. 37, Exh. 2). Defendants admit confiscating immigration documents in their response. (Doc. 47). Thus, the admitted confiscation by defendants of certain immigration documents, in my view, raises substantial concerns as to which plaintiffs are likely to prevail. Thus, in addition to defendants' practice of questioning motorists about their immigration status, the confiscation of immigrationrelated documents is a "fair ground" for litigation. Friendship Materials. Inc., 679 Fold at 103.
5 I note that plaintiffs seek to represent a class ofmigrant workers. This colloquial description suggests the importance ofgreen cards to the plaintiffs and members ofthe putative class. To get and to get to work a migrant laborer necessarily must travel freely and be able to show his or her green card to fanners in whose fields he or she will be working. Employers must verify that everyone they hire is not an illegal alien 8 U.S.C. §1324a (b)(1)(A-D). This is accomplished by checking the employee's identification documents. Employers who fail to confinn an alien employee's legal status expose themselves to legal penalties. 8 U.S.C. §1324a (f). Without a green card, an alien migrant worker cannot secure lawful employment from a law abiding employer.
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17 2. Possibility of Irreparable Harm to the Plaintiffs There can be no dispute that the violation of an individual's Fourth Amendment rights is a serious injury, especially where the violation leads to confiscation of critical documents that, by law, a legal alien is required to carry under penalty of detention, fine, or even imprisonment. Violations ofthe Fourth Amendment constitute irreparable harm sufficient to justify injunctive relief. Zepeda v. INS, 753 F.2d 727 (9th Cir. 1983). Thus, as to defendants' immigration-related activities, the second prong of the preliminary injunction test is easily satisfied. 3. Probability That Injunction Will Harm Others No showing has been made that issuance of a preliminary injunction against defendants' immigration-related activities would cause substantial harm to others. Defendants have failed to express with any degree ofspecificity how the proposed injunction will hinder their ability to enforce the laws of Ohio or obstruct drug interdiction on Ohio highways. Because defendants are not authorized to seize green cards without supplying substitute identification, an injunction would not impede them from exercising the full breadth of their lawful authority. A preliminary injunction against defendantsf immigration-related activities would not require the OSHP to undertake any affirmative act, be it instituting new training procedures or promulgating new rules. A preliminary injunction would not significantly regulate the internal operations of the OSHP: it merely would require defendants to act in accordance with the dictates of the Fourth Amendment. Preliminary injunctive relief would serve as a prophylaxis against unconstitutional treatment ofHisparucs using Ohio highways. Therefore, the third prong ofthe preliminary injunction test is satisfied. Taken together, at this point in the litigation, I am persuaded that the balance of hardships tips decidedly toward plaintiffs.
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18
4. Advancement of the Public Interest Finally, guarding against violations of the Fourth Amendment and federal law serves the public interest. In issuing this preliminary order, I recognize that critical interests are served by state officers zealously enforcing criminal laws, be they state or federal criminal laws, and protecting the public. However, the OSHP may not detain drivers on the basis ofethnicity alone, ~ Avery,~, and the OSHP lacks authority to seize green cards without supplying substitute identification. Therefore, I believe that the public interest would be served by enjoining such practices.
Conclusion I am mindful that fundamental principles of federalism restrict the power of a United States court to interfere with or impinge on the internal affairs of a state agency and the administration of state law. Rizzo v. Goode, 423 U.S. 362,378 (1976); O'Shea v. Littleton, 414 U.S. 488,500 (1974). Furthermore, I recognize that reliefagainst law enforcement authority "must not be granted lightly, for unduly obtrusive or hasty judicial intervention can undermine the important values ofpolice selfrestraint and self-respect." Long v. District of Columbia, 469 F.2d 927, 932 (D.C. Cir. 1972). In the course of briefing, defendants, however, have failed to express with any degree of specificity how they justify on constitutional and legal grounds their inquiries concerning alienage and immigration status, much less their seizure of green cards without supplying appropriate substitutes. Further, defendants fail to address how the proposed relief would harm the OSHP, other persons or entities, or the public interest. The requested injunction appears unlikely to impede the defendants from exercising the full breadth of their lawful authority. I find that plaintiffs have shown a substantial likelihood of success on the merits of their claims concerning questioning about immigration status and seizure of immigration documents, but
A072A

19 have not shown such likelihood with regard to their claim of stops based on ethnicity. In addition, the other three parts of the preliminary injunction analysis weigh in plaintiffs' favor. Plaintiffs also show that the balance of the hardships tips decidedly in their favor.
I do not, however, believe that I can enjoin the OSHP absolutely from all questioning as to immigration status. Such questioning is proper if, on the basis ofobjective, articulable facts, it bears a reasonable relationship to the circumstances ofthe initial seizure, there is reasonable suspicion that motorists are in violation ofimmigration laws, or the motorists have given uncoerced consent to such questioning. The OSHP can, however, be enjoined from questioning about immigration status when those circumstances do not exist. In any event, I perceive no basis in the present record for not enjoining the practice of seizing green cards without lawful cause and supplying appropriate substitute documents.
Therefore, it is ORDERED THAT plaintiffs' renewed motion for a preliminary injunction, (Doc. 37), be and hereby is, 1) Denied as to their claim of stops based on ethnicity; 2) Granted as follows with regard to questioning about immigration status and seizure of immigration documents:
A) The officers, agents, and employees of the Ohio State Highway Patrol are enjoined from questioning motorists about their immigration status 1) without reasonable suspicion based on articulable objective facts arising either a) from the circumstances of the initial seizure of motorists or b) other circumstances arising
A072A (Rev.8/82)

20
during such seizure that such motorists are in violation of federal law relating to immigration, or 2) uncoerced and otherwise lawful consent to such questioning; and B) The officers, agents, and employees ofthe Ohio State Highway Patrol are enjoined from seizing immigration documents from motorists absent lawful cause for doing so and, if such seizure occurs, providing forthwith fully effective substitute documents. So ordered.
" ,-~-~--.-.<:J James G. Carr United States District Judge
A072A

 
 xv·········· ......../ ' 't!'", 1"b 'j.;",rt o,.. t,,. <Iw

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

FARM LABOR ORGANIZING COMMITTEE,

)

ORIGINAL

MERCED VALDEZ, FRANCISCO QUINTERO}

)

ALICIA QUINTERO, MARGARITO OLIVARES}

)

GUADALUPE ARIOLA, EUSEBIO ARIOLA, JR,

)

MELISSA LOPEZ, FERNANDO CUEVAS, SR.,

)

and FERNANDO CUEVAS} JR., individually, and on behalf of all people similarly situated;

)
~3:96C17580 r

Plaintiffs,

)

)

No.

v.

)

) Judge JUDaE JAMES G. CARR

THE OHIO STATE HIGHWAY PATROL;

)

COLONEL WARREN H. DAVIES, individually,

)

COMPLAINT:

and in his official capacity as Superintendent

)

CLASS ACTION

of the Ohio State Highway Patrol; SERGEANT

)

BRUCE ELLING, individually} and in his official

)

JURY DEMAND

capacity as Supervisor, Quad A Traffic Drug

)

Interdiction Team; LIEUTENANT BERRY

)

ELDERS individually and in his official capacity

)

as Swanton Post Commander of the Ohio State

)

Highway Patrol, TROOPERS KEVIN KIEFER,

)

STEVEN R. BLUE, REBECCA AMBROSE,

)

and other unknown officers of the Ohio State

)

Highway Patrolt in their individual capacities,

)

)

Defendants.

)

----------------------------------)

INTRODUCTION 1. This is a civil rights class action in three Counts. The suit challenges the practice of the Ohio State Highway Patrol of making automobile stops, detentions and searches, with or without lawful grounds to stop, detain and search, based on race and/or national origin. 2. Count I is brought pursuant to 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 2201 .et~. for violations of the First and the Fourth Amendments to the United States Constitution and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In Count I, plaintiffs seek declaratory and injunctive relief and money damages for themselves and for the plaintiff class. 3. Count II is brought pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d .et~., as amended, and 28 CFR § 32.101 .m~., the administrative regulations of the United States Department of Justice effectuating Title VI. In this Count, plaintiffs seek declaratory and injunctive relief and money damages for themselves and for the plaintiff class. 4. In Count III, plaintiffs invoke the supplemental jurisdiction of this Court pursuant to 28 U.S.C. § 1376, and raise claims under state constitutional and common law. In Count III, plaintiffs seek money damages for themselves and for the plaintiff class.
2

JURISDICTION AND VENUE 5. The jurisdiction of the Court in Counts I and II is founded on 28 U.S.C. §§
1331 and 1343 (a) (3) & (4) and 42 U.S.C. § 2000d-1. Jurisdiction in Count III is based on this Court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
6. Venue is proper in this Court, pursuant to 28 U.S.C. § 1391 (b) (2), because defendant the Ohio State Highway Patrol maintains an office, and defendant Davies resides, in this district.
PARTIES 7. Plaintiff Farm Labor Organizing Committee (FLOC) is a Union of migrant
and seasonal farm workers. It is based in Toledo, Ohio, and has approximately 15,000 members nationwide. During the harvest season, FLOC has approximately eight thousand members traveling and residing in Ohio. These members are predominately Hispanic, and virtually all of them will drive in Ohio or travel in vehicles driven on Ohio's highways by Hispanic drivers. FLOC's members are currently traveling through or residing in Ohio, and will return year after year. In addition, many of FLOC's members work and reside in Michigan, and travel from Florida and other points South through Ohio en route to their employment. FLOC conducts much of its business on the highways of Ohio, and its organizers have been victims of defendants' actions. Plaintiffs Fernando Cuevas Sr. and Fernando Cuevas Jr. are members of, as well as employees of, FLOC. Plaintiff Merced Valdez and several other plaintiffs are members of FLOC.
3

8. Plaintiff Merced Valdez is a resident of Ohio. He is Hispanic, and is a

United States citizen. He is a member of FLOC.
9. Plaintiff FernandP/Cuevas Sr. i~ Hispanic, and is a United States citizen.
",,......- ........,..........-". " " "
Each year, he resides part of the year in Ohio and part of the year in Florida. He is the

First Vice President of FLOC.
. ........,........
1O. Plaintiff Fernando ~uevas ~r/is Hispanic, and is a United States citizen.
.......~.~.~....... - ......... .
Each year, he resides part of the year in Ohio and part of the year in Florida. He is a

field organizer for FLOC.

11. Plaintiff Alict9"QuinterO)Nas recently employed with Migrant Head Start in

\~~...........~

.-"

Ohio. She is Hispanic, and a citizen of the United States. She resides in Ohio and

travels frequently to Texas.

12. Plaintiff FranCiSCc(aUint;r6 i~ Hispanic, and a citizen of the United States.

.......

.,/

He resides in Ohio, and travels frequently to Texas.

(/,..-................... ..

13. Plaintiffs Guadalupe and Euseb~ Ariolaflre farm workers who spend part

\

~

,... ......_........... "

of each year in Ohio. They plan to return to Ohio each year in the future. They are

both Hispanic citizens or lawfully admitted aliens.

14. Plaintiff Meliss~ Lopez is a citizen of the United States. She is Hispanic, \
and resides part of each year"ln'"Ghfo. She plans to return to Ohio each year in the

future.

/'
15. Plaintiff Margarita /0Iivaresl is a migrant farm worker from Florida. He is a

\.

,/'

~ ........... '.

lawfully admitted permanent resident alien of the United States. He plans to return to

Ohio in the future to work and reside. He is Hispanic.

4

16. Defendant Ohio State Highway Patrol ("Highway Patrol" or "O.H.P.") is a
m state law-enforcement agency. Pursuant to O.R.C. § 5503.01 s.e.Q., the O.H.P. is
empowered to enforce the laws of the State of Ohio. The O.H.P. is a recipient of federal funds. The O.H.P. is a defendant in Count II only, pursuant to 42 U.S.C. § 2000d-7.
17. Defendant Colonel Warren Davies ("Davies") is the Superintendent of the O. H. P., defendant Davies is sued in his individual capacity for money damages and in his official capacity for purposes of injunctive relief. Defendant Davies is authorized to make policy for the defendant O.H.P.
18. Defendant Bruce Elling is a Sergeant with the Ohio State Highway Patrol and a quadrant supervisor of the "Traffic Drug Interdiction Team,') a program of the O.H.P. that focuses on stops and searches of drivers and vehicles on the streets and highways of the Northwest part of Ohio. He is authorized to make policy for those defendants involved in the Traffic Drug Interdiction Team. He is sued in his individual capacity for money damages and in his capacity as supervisor for purposes of injunctive relief
19. Defendant Berry Elders is the head of the Swanton Highway Patrol Post located along the Ohio Turnpike between Exits 3 and 3A south of Toledo. He is sued in his individual capacity for money damages and in his official capacity as Post Commander for purposes of injunctive relief.
20. Defendants Kevin Kiefer, Rebecca Ambrose, and Steven R. Blue are troopers of the Ohio State Highway Patrol. Plaintiffs also sue other, unknown officers of
5

the Highway Patrol who effectuated the stops, detentions and searches of the named plaintiffs, as well as unknown officers of the Highway Patrol who have effectuated the stops, detentions and searches of other class members. All such officers are sued in their individual capacities only.
21. At all times pertinent hereto, all defendants were acting under color of state law and their conduct constituted state action.
CLASS ALLEGATIONS 22. Plaintiffs bring this Complaint as a class action under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs seek to represent, pursuant to Rules 23 (b) (2) and 23 (b) (3), a class of all persons traveling on the streets and highways of Ohio, who, because of their national origin and/or race, in the past have been, or in the future will be, stopped, detained, searched, with or without legally sufficient cause and justification, and/or harassed. 23. All of the prerequisites to a class action as stated in Rule 23 (a) are satisfied by the class.
a. Numerous individuals have been stopped, detained and also often searched by defendants pursuant to defendants' unlawful practices, and numerous individuals will be in the future. Therefore, the class is so numerous that joinder of all members is impracticable. b. There are questions of law and fact common to the plaintiff class. The common questions include whether the defendants' practices described below of stopping, detaining and also often searching persons
6

on the basis of national origin and/or race with or without legally sufficient cause and justification unconstitutionally burdens the First, Fourth and Fourteenth Amendment rights of those so stopped, detained and searched, their constitutional right to freedom of movement and the corresponding state constitutional guarantees. c. The claims of the named plaintiffs are typical of the claims of the class: the named plaintiffs were stopped, detained and also searched pursuant to the practices challenged here, as were members of the class. d. The named plaintiffs will fairly and adequately represent the interests of the class: they have no interests antagonistic to the class; they seek declaratory and injunctive relief and money damages on behalf of the entire class and such relief will benefit all members of the class; and they are represented by counsel who are competent and experienced in civil rights and class action litigation. 24. The class satisfies Rule 23 (b) (2) because the defendants have engaged in a course of conduct common to all members of the class, and final declaratory and injunctive relief in favor of the plaintiff class is therefore appropriate. In addition, the class satisfies Rule 23 (b) (3) because the questions of law and fact common to members of the class predominate over any questions affecting individual members and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
7

FACTUAL ALLEGATIONS

Defendants' First Unlawful practice

25. It is the practice of the Highway Patrol and its officers to stop, detain and

also often search individuals traveling on streets and highways in Ohio because of the

travelers' race and/or national origin, with or wi.t~~.L:J~.I~~~.!.Iy'~ufficient cause and

justification ("the first practice"). Each of the na".:1.~~. 'pI~i.o.~i.ff~~~ve been victims of the

. . . . . . . . . . . . . . . .~_ ••••••-"'......,.•••••••' ...............................•••..••••..•........... - . ·...••••• ••• A . . . . . . . . . . .

_ ••••••• _ ••••••••••'.'........ _ ••••••••••••

first practice.

26. The first practice is widespread and systemic. For example, defendant

Trooper Rebecca Ambrose admitted under oath: "There are what you could call a

profile stop and I, I mean if you saw a Hispanic person, possibly Hispanic, or a Mexican

or whoever by themselfs [sic], that would be a profile, if you're facing, if you're making a

stop just on just on what you saw". T
Defendants' Second Unlawfyl practice

27. At times, when defendants engage in the first practice, they also question

some or all of the occupants of vehicles as to their immigration status, including

--,---- - '-~.--~........•

.............. ...................

demands to see immigration documents ("the second practice"). This is a routine

practice. Defendants have admitted identifying "large numbers of illegal aliens" during

"routine traffic stops".

Defendants' Third Unlawful practice

28. At times, when defendants engage in the first and second practices,

defendants confiscate class members' immigration documents including lawfully issued T

,,~...- ~ '""-V~~-'~ ................ •• ,.o.AA."..........._ . - . . .••

. . . ._ . . . . . - . - . . . - . . _

~ .>¥J>._ .............. .......

.... .".,.........

~ • . . . . . . . . . .- ••••••-... ••••••

certificates of alien registration or alien registration receipt cards ("the third practicelt).

8

Defendants keep these lawfully issued certificates of alien registration or alien

registration receipt cards for long periods of time. Defendants' third practice subjects

aliens to federal criminal prosecution for failure to possess their lawfully issued

certificates of alien registration or alien registration receipt cards. In addition,

defendants are committing a federal criminal act by causing these persons to be

without their lawfully issued certificates of alien registration or alien registration receipt

cards.

29. Defendant Trooper Kevin Kiefer told several witnesses that an individual

named Coutcher, whom plaintiffs believe is a federal law-enforcement agent with an

--..----_ office

at

the

Toledo

Airport,

has

traveled

around

the

State

of

Ohio

-- training O.H.P. .. .............................. ..

troopers to- confiscate aliens' immigration documents, and bring them to Coutcher, who ... .....................".......... ... ~-..........................~............................-. .....................

. ...................... .

checks the documents through a computer system. Kiefer said that it is his practice to

collect immigration documents from alien travelers from Saturday through Thursday,

and deliver the confiscated documents on Fridays to agent Coutcher.

30. Defendants' practices as described above are widespread. Individuals

are stopped, detained and also often searched pursuant to the three practices in all

areas of the State of Ohio on a persistent, recurrent basis.

The Stop, Detention and Search of plaintiff Merced Valdez

31. Approximately six months ago, an unknown Highway Patrol officer who

was behind Plaintiff Merced Valdez's car turned on his flashing lights, signaling Mr.

Merced Valdez to pull over. Mr Merced Valdez pulled the car over to the right shoulder.

9

32. The officer approached the car and asked for Mr. Merced Valdez's license. After Mr. Merced Valdez provided his license, the trooper demanded to see his immigration papers. Mr. Merced Valdez is a United States citizen and as a result possesses no immigration papers.
33. When Mr. Merced Valdez questioned the trooper's request for immigration papers, the trooper gruffly ordered Mr. Valdez out of the car, and ordered him to raise his hands and face away from his car. Upon information and belief, the trooper then searched Mr. Valdez' car. Mr. Valdez never consented in any way to the trooper's actions.
34. Eventually, the trooper instructed Mr. Merced Valdez that he was free to go. No ticket or citation of any sort was issued. The Stop, Detention and Search of plaintiff Margarito Olivares
35. Plaintiff Margarito Olivares is a migrant farm worker who resides in farm labor camps in Ohio during part of the year. During August, 1996, he was walking along a state route near Fremont, Ohio, returning to his farm labor camp from a nearby grocery store. A Highway Patrol trooper stopped him, and demanded to search his grocery bag. The trooper also demanded to see his identification, and carefully examined Mr. Olivares' lawfully issued alien registration receipt card. The trooper then ordered Mr. Olivares to return directly to his farm labor camp, without making any detours. The trooper never explained to Mr. Olivares why he was detained and searched.
10

The Stop, Detention and Search of plaintiff Melissa Lopez 36. Plaintiff Melissa Lopez is a farm worker near Fremont, Ohio. In August,
1996, she, her mother, and her daughter were driving her car en route to a migrant farm labor camp near Fremont. A Highway Patrol trooper drove out from a corn field and stopped Ms. Lopez next to the farm labor camp. The trooper asked Ms. Lopez several questions of a personal nature while peering into the interior of Ms. Lopez's car. None of the Lopezes were given any ticket or citation of any sort. Throughout the summer of 1996, members of the Highway Patrol have routinely parked next to this farm labor camp, and watched the camp and its occupants from their cars. The camp is on an isolated back road in Sandusky County, with very little traffic. The Stop. Detention and Search of plaintiffs Guadalupe and EsebjQ AriQla
37. Guadalupe and Eusebio Ariola are migrant farm workers who live part of the year in Texas and part of the year in migrant farm labor housing near Fremont, Ohio. In June of 1996, Eusebio was driving the family in a van on the turnpike between Fremont and Toledo, Ohio. It was approximately 2:30 in the afternoon. They were stopped by two troopers of the Highway Patrol. Almost immediately a sport utility vehicle arrived with a drug-sniffing dog. The trooper asked the Ariolas to sign a consent to search form. When the Ariolas asked why the troopers wanted to search the van, the trooper said that "it was procedure". Reasonably believing that they could not refuse, Eusebio signed. The van was thoroughly searched for an extended period of time. After finding no contraband of any sort, the troopers searched Guadalupe Ariola's
11

purse and wallet, looking through each of her cards. The Ariolas were given no ticket or written citation of any sort. The First Stop, Detention and Search of plaintiff Fernando Cyeyas, Jr.
38. Plaintiff Fernando Cuevas, Jr. is an organizer for the Farm Labor Organizing Committee (FLOC). He is a citizen of the United States. During the summer in 1993, he was driving on FLOC business. He was pulled over on Interstate 280 by five Highway Patrol officers. One of the officers demanded to see his license and vehicle registration. Mr. Cuevas, Jr. was told that he was being held "on suspicion". The officers demanded to search Mr. Cuevas' pick-up truck. Reasonably believing that he was not allowed to refuse, Mr. Cuevas permitted his vehicle to be searched.
39. Highway Patrol officers detained Plaintiff Fernando Cuevas, Jr. for approximately two and one-half hours, while the officers searched his truck. Absolutely no contraband was found. Mr. Cuevas was released and was given no warning ticket nor citation of any type. He missed his Union farm labor camp meeting. The Second Stop, Detention and Search of plaintiff Fernandez Cyeyas. Jr.
40. Later during the summer of 1993 while again conducting FLOC business, Mr. Cuevas Jr. was driving on State Route 20 just outside of Woodville, Ohio. A Highway Patrol officer ordered him to pull over. The officer demanded that he turn over his license and registration. The officer repeatedly questioned Mr. Cuevas concerning use of funds from an Ohio bank to purchase a truck registered in Florida. After
12

approximately one-half hour, Mr. Cuevas was released. He was not issued a warning ticket or citation of any sort. The Third Stop, Detention and Search of plaintiff Fernandez Cyeyas, Jr.
41. During September, 1995, Plaintiff Fernando Cuevas, Jr. was driving on the Ohio Turnpike just west of the Toledo Airport. It was approximately noon, and he was driving a car registered to the Farm Labor Research Project (FLRP). He was accompanied by his father, Plaintiff Fernando Cuevas, Sr., who is the first vicepresident of FLOC. They were driving from one Union camp meeting to another.
42. Plaintiff Fernando Cuevas, Jr. had the cruise control set at the speed limit. They passed a Highway Patrol trooper parked at the side of the tumpike. The trooper began to follow them. Approximately two miles ahead, they saw three more Highway Patrol cruisers parked on the side of the turnpike. One of those troopers signaled the Cuevas' to stop, which they did.
43. Once stopped, both of the Cuevas' were ordered to produce their drivers' licenses and car registration. After each complied, each was separately questioned at length by the troopers about who they were visiting, what they were doing, who they had talked with, and what their plans were. All four of the O.H.P. cruisers stayed at the scene. In the course of questioning, one of the troopers learned that the car was registered to FLRP. Eventually, the Cuevases were released. The Highway Patrol officers did not issue a ticket, warning or citation of any sort.
13

The First Stop, Detention and Search of plaintiffs Francisco and Alicia QYintero 44. In 1991 J Plaintiffs Francisco and Alicia Quintero and their four children
were driving on the Ohio Turnpike west of Toledo en route to visit their seriously ill mother in Texas, when they were detained by three O.H.P. cruisers and one undercover car carrying a drug sniffing dog. The Quintero's car and possessions were searched for over one hour. No contraband was found. They were not given a ticket or citation of any sort. The Second Stop, Detention and Search of Francisco and Alicia QYintero
45. On or about March, 1996, Plaintiffs Francisco and Alicia Quintero were driving in Northwestern Ohio when they were stopped by an unmarked O.H.P. car. Francisco and their four children were ordered out of the car, and their car and the families' possessions were searched for approximately forty minutes. They were not asked to produce their drivers' licenses, registration or any form of identification. They were issued no warning, ticket nor citation of any sort. Other Instances of Defendants' Unlawfyi practices
46. Both prior and subsequent to the named plaintffs being stopped, detained and searched by Highway Patrol troopers based on national origin and/or race with or without legally sufficient cause and justification, numerous other Hispanics and persons of color have been subjected to defendants' persistently applied practices, in many instances, multiple times. Among these applications of defendants' practices are the following:
14

The Stop, Detention and Search of Jose Aguilar and Irma Esparza 47. Mr. Jose Aguilar and Ms. Irma Esparza are lawfully admitted permanent
resident aliens. Approximately one year ago, they were driving their van from Chicago, Illinois, to Toledo, Ohio. It was approximately 1:30 pm on a Sunday, it was raining, and they had turned on their head-lights.
48. Their van was stopped by four Highway Patrol vehicles and several officers. One of the vehicles had a drug sniffing dog. The officers issued Mr. Aguilar a warning citation for an improper headlight. One officer used the drug sniffing dog to search Mr. Aguilar's car, while other officers partially dismantled the car, searched through the car seats, opened a locked trunk and searched through the couple's suitcases and other personal possessions. Mr. Aguilar and Ms. Esparza, who speak virtually no English, were powerless to stop the violation of their rights. They did not consent to the search.
49. When the officers found no contraband, they seized Mr. Aguilar's and Ms. Esparza's lawfully issued certificates of alien registration or alien registration receipt cards and left the location. The Highway Patrol officers gave no reason for confiscating the certificates of alien registration or alien registration receipt cards, did not inform Mr. Aguilar or Ms. Esparza where the cards were being taken, whether their cards would be returned to them or whom to contact to learn any information relating to their cards. There is no lawful explanation for the search and seizure by the Highway Patrol officers of lawfully issued certificates of alien registration or alien registration receipt cards to lawfully residing Permanent Resident Aliens Aguilar and Esparza.
15

50. At no time did Mr. Aguilar or Ms. Esparza consent to the stop, detention or search. At all times, Mr. Aguilar made clear his refusal to consent to the continuing detention and the search and his wish to continue on his way. The Stop of Cynthia Rujz
51. Cynthia Ruiz resides in Texas and is employed as a county prosecutor. She is Hispanic. During the summer of 1994, while she was employed as a summer law clerk for Advocates for Basic Legal Equality, Inc. (ABLE), in Fremont, Ohio, she was stopped on the Ohio Turnpike by a Highway Patrol trooper. He asked her several personal questions, and then said that the car smelled like marijuana and asked her if she had been smoking marijuana that morning. She had not. The trooper then asked to search her car. She refused. The trooper continued to attempt to intimidate her. She finally demanded to be ticketed or released. The trooper finally released her. She was issued no warning, ticket or citation of any sort. The Stop, Detention and Search of Ryben Valdez
52. Ruben Valdez is a resident of Ohio. He is Hispanic, and is a United States citizen. While driving home in Defiance, Ohio in 1996, Ruben Valdez was detained at gun-point by several police officers. An unknown Highway Patrol trooper was present during the stop and search of Ruben Valdez's car. At no time did Mr. Ruben Valdez consent to the stop, detention or search of the car. No drugs, guns, contraband or evidence of illegal activity was found. Mr. Ruben Valdez was not given a ticket, warning or citation of any sort.
16

General Allegations Concerning Defendants' Condyct 53. Each Plaintiffs auto was stopped without re~s.~na~_~.~,",~~~~picion of unlawful
..... ... .....~.. -..
activity. No plaintiff was engaged in any illegal activity. Each plaintiff was detained at the roadside without reasonable suspicion of unlawful activity and the length of each plaintiffs detention exceeded a reasonable amount of time for an investigative stop, even if such stop had been lawful. Each plaintiffs car and possessions were searched without probable cause.
54. The complained of conduct by each defendant was motivated by plaintiffs' national origin and/or race.
55. The stop, detention and search of plaintiffs was pursuant to the three practices stated above.
56. Defendants Davies, Elling, and Elders either authorized or knowingly acquiesced in the unconstitutional actions of their subordinates, and they were deliberately indifferent to constitutional violations likely to result from serious deficiencies in the training program of Highway Patrol officers concerning stopping of vehicles on a prohibited basis.
57. Each defendant and the other unknown officers acted knowingly and intentionally. Moreover, their actions were taken with recklessness or callous disregard for plaintiffs' rights.
58. The actions of defendants in unlawfully stopping and detaining plaintiffs and searching their cars, persons and possessions have had a disproportionate effect on Hispanics and other persons of color have penalized plaintiffs for the exercise of
17

their constitutional right to freedom of movement in the State of Ohio and have hindered plaintiffs' exercise of that right. Injyry To plaintiffs
59. As a direct and proximate result of defendants' conduct as stated herein, plaintiffs and the class they seek to represent have suffered humiliation, embarrassment, mental fright and emotional distress. In addition, defendants' conduct has hindered plaintiffs and the class they seek to represent in freely traveling the streets and highways in the State of Ohio. Defendants' actions have had a discriminatory impact against plaintiffs and class members. Necessity for Injynctiye Relief
60. Each plaintiff presently either resides in Ohio or has family, friends or business interests in Ohio and thus expects to travel Ohio's highways in the future. They wish to be free to travel to and in Ohio and on highways in Ohio without being stopped, detained and searched pursuant to the defendants' unlawful practices. Plaintiff FLOC is hindered in its mission and in its operation by defendants' actions.
61. Plaintiffs and the class they seek to represent are threatened with substantial, immediate and irreparable injury at the hands of the defendants. Defendants began their practices of stopping, detaining and also often searching Hispanic persons traveling on highways in Ohio based on national origin and/or race before the incidents involving the named plaintiffs, and defendants continue to engage in the practices against the numerous members of the class. Individual Highway Patrol troopers are authorized by the Highway Patrol to engage in the conduct to which the
18

named plaintiffs and numerous other Hispanics and persons of color have been

subjected. Plaintiffs will also continue in the future to suffer the ongoing effects of

defendants' past applications of the practice to them.

62. Unless restrained by this Court, defendants will continue their unlawful

practices. Pursuant to these practices, plaintiffs are likely in the future to be stopped,

detained and searched by defendants based on national origin and/or race with or

without legally sufficient cause and justification. Plaintiffs continue to, and will in the

future, travel on streets and highways in Ohio patrolled by the Highway Patrol. Plaintiffs

will continue to be unable, even by fully conforming their conduct to all legal

requirements, to avoid being stopped, detained and also often searched by defendants

pursuant to defendants' unlawful practices.

63. Plaintiffs have suffered irreparable injury and, in the absence of injunctive

relief, will continue to suffer irreparable injury. They have no adequate remedy at law.

Jury Demand

64. Plaintiffs demand trial by jury.

CLAIMS FOR RELIEF

COUNT I

(Interference with Freedom of Association)

65. Defendants' actions in maintaining the practices and in stopping plaintiffs'

automobiles and detaining plaintiffs pursuant to these practices have deprived plaintiffs

and the class they seek to represent of their right to freedom of association as

~

•

"'..........................................-.:0;........... ....

guaranteed by the First Amendment to the United States Constitution.

19

(Unlawful Detention)

66. Defendants' actions in maintaining the practices and in stopping plaintiffs'

automobiles and detaining plaintiffs pursuant to the practices have deprived plaintiffs

and the class they seek to represent of their right to be free from unreasonable seizures

as guaranteed by the Fourth Amendment to the United States Constitution.
.__ ........................
(Unlawful Search)

67. Defendants' actions in maintaining the practices and in searching

plaintiffs, their vehicles and their possessions pursuant to the practices have deprived

plaintiffs and the class they seek to represent of their right to be free from unreasonable

( search~s'f;ls guaranteed by the Fourth Amendment to the United States Constitution.

.....'-._,."".,.

./

.--.~-,....................."."...,............................................

(Denial of Equal Protection)

68. The defendants' actions in maintaining the practices and in stopping,

detaining and searching plaintiffs, their vehicles and their possessions pursuant to the

practices have been motivated by discriminatory animus and constitute denial of equal

----" PfQ!ection of the laws based on plaintiffs' national origin and/or race in violation of the .....
Fourteenth Amendment to the United States Constitution.

(Violation of Right to Travel)

69. The defendants' actions in maintaining the practices and in stopping,

detaining and searching plaintiffs, their vehicles and their possessions pursuant to the

practices have unreasonably burdened the fundamental right to travel guaranteed to

plaintiffs and the class they seek to represent by Article IV, Section II of the United

States Constitution.

20

(Violation of Right to Freedom of Movement) 70. The defendants' actions in maintaining the practices and in stopping, detaining and searching plaintiffs, their vehicles and their possessions pursuant to the
,.--_ practices have unreasonably burdened the fundamental right to freedom of movement ... .. -~-.--....,.--...~~ ""....""
guaranteed to plaintiffs and the class they seek to represent by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
COUNT II (Violations of Federal Civil Rights Act and Regulations) 71. The Ohio State Highway Patrol maintains or constitutes a program or activity that receives federal financial assistance from the United States Department of Justice. Thus, it is subject to the requirements of 42 U.S.C. § 2000d m~. and 28 CFR § 42.101 m~. Plaintiffs are intended beneficiaries of such program or activity. 72. The selection of persons to be stopped, detained and searched on the basis of race and/or national origin, with or without legally sufficient cause or justification constitutes intentional discrimination and has a discriminatory effect and a disproportionate impact on Hispanics and other persons of color. 73. The violation of 42 U.S.C. § 2000d and 28 CFR § 42.101 SU.s1aQ. as alleged above, has caused, and will cause unless the practice is enjoined by this Court, tremendous harm and public humiliation to Hispanics and other individuals of color who are stopped, detained or searched pursuant to the above practices. 74. The defendants' actions in maintaining the practices and in stopping, detaining and searching plaintiffs pursuant to the practices have been motivated by
21

discriminatory animus, have a discriminatory effect, have a disproportionate impact on Hispanics and other persons of color and constitute a violation of Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d .e.1~. and its implementing regulations at 28
CFR § 42.101 e1~.
COUNT III (Supplemental State Claims) 75. All defendants in this Count are sued in their individual capacities only. 76. Defendants have acted recklessly, oppressively and willfully, with a design to oppress and injure plaintiffs. (State Constitution - Unlawful Seizure) 77. The actions of defendants in maintaining the practices and in stopping and detaining plaintiffs pursuant to the practices have denied plaintiffs and the class they seek to represent their right to be free from unreasonable seizures in violation of
. , . . - ..................................... n ............................" . . . . . . . . . . . . . . . . ..
Art. I, Sec. 14 of the Ohio Constitution. (State Constitution - Unlawful Search)
78. The actions of defendants in maintaining the practices and in stopping, detaining and also often searching plaintiffs, their vehicles and their possessions pursuant to the practices have been motivated by discriminatory animus and constitute denial of equal protection of the laws based on plaintiffs' national origin or race in violation of the Ohio Constitution.
22

PRAYER FOR RELIEF WHEREFORE, plaintiffs request: A. A declaratory judgment that defendants' practices of stopping, detaining and also often searching persons, their vehicles and their possessions with or without legally sufficient cause or justification on the basis of national origin and/or race violates the rights of plaintiff class members, guaranteed by the First Amendment, to freedom of association; B. A declaratory judgment that defendants' practices of stopping, detaining and also often searching persons, their vehicles and their possessions with or without legally sufficient cause or justification on the basis of national origin and/or race violates the rights of plaintiff class members, guaranteed by the Fourth Amendment, to be free from unreasonable searches and seizures; C. A declaratory judgment that defendants' practices of stopping, detaining and also often searching persons, their vehicles and their possessions with or without legally sufficient cause or justification on the basis of national origin and/or race violates plaintiff class members' right to Equal Protection of the laws under the Fourteenth Amendment; D. A declaratory judgment that defendants' practices of stopping, detaining and also often searching persons, their vehicles and their possessions with or without legally sufficient cause or justification on the basis of national origin and/or race violates plaintiff class members' constitutional right to freedom of movement as secured by the Due Process Clause of the Fourteenth Amendment;
23

E. A declaratory judgment that defendants' practices of stopping, detaining

and also often searching persons, their vehicles and their possessions with or without

legally sufficient cause or justification on the basis of national origin and/or race violates

- - - - . . _ plaintiff class members' constitutional right to freedom of travel as secured by Article IV, .....,.
Section II of the United States Constitution;

F. A declaratory judgment that defendants' practices of stopping, detaining

and also often searching persons on the basis of national origin and/or race, with or

without legally sufficient cause or justification, violates Title VI of the CiviI Rights Act of
~--~ .•. ~ ... :.~.
1964,42 U.S.C. § 2000d and its implementing regulations at Title VI, 28 CFR § 42.101

.et~.;

G. A preliminary, and then a permanent injunction barring all defendants and

their officers, agents, servants, employees and attorneys and those persons in active

concert or participation with them from stopping or detaining individuals or searching

them, their possessions or their automobiles on the basis of race and/or national origin,

with or without legally sufficient cause or justification;

H. Reasonable and appropriate compensatory damages for the named

plaintiffs and each plaintiff class member for the unlawful stops, detentions and

searches of plaintiffs;

I.

Punitive damages for the named plaintiffs and each class member in an

amount to be ascertained at trial;

J. Plaintiffs' costs, expenses and reasonable attorneys' fees pursuant to 42
~ - .............................v.<.N....................................................... ... :
U.S.C. § 1988; and

24

K. Such other and further relief as this Court deems necessary and proper. Respectfully submitted, The Equal Justice Foundation 520 Madison Avenue, Suite 1026 Toledo, Ohio 43604-1306 (419) 246-1000 William B. Senhauser (0620 J. Mark Finnegan (0032491)
25

 
 IN THE UNITED STATES DISTRICT COURT~

FOR THE NORTHERN DISTRICT OF OH~ 14; t(:: , 9

WESTERN DIVISION

"'~ ,

F-ARM-LAaQR. QRGANlZlNU<CQMM1IIl~E,

)

JOSE AGUILAR, IRMA ESPARZA

)

,~§B,Ql;O.,.,."A.LQJ~Z, E.BAt!g.l§.gQ,g,~lt.fIERO,

)

ALICIA QUINTERO, MARGARITO O~S,

)

CIDAu~[UP'E"'ARIoLAEuSEBIO ARIOLA JR ~."""""""'~''::':''''''''''''':,:,:,.,,"...~~•.••:•.•.•:.....:~......vx•.•..:.:.-.:-:.:......~ t ,.. ~~._........:........................................~............................t.......:!.......... J

)

MEL~§S}\LOPEZf E§SNANOO.,.,CLJESVASr,·S.Ft,..

)

andE.gBNAt~ro.o.. CU.E\lAS,.JR., individually, and )

on behalf of all people similarly situated;

)

)

Plaintiffs,

)

)

v.

)

)

. ., TC~wH9.EL. .Q.O.N,.,.,HE.....,I..OL.......KS...ET..wN.A---.-.N-T...wEE·,·,·H,·.··JI·fG:·l·,··H···W··n··fA.MsY\o.·_P··.RA~ATICR·O···iLria;rvidually ,

) )

and in his individual capacity as Superintendent

)

of the Ohio State Highway Patrol; COLONEL

)

VVA.RBF.:.~.. tLJd.8Yll;$, individualJy, and in his

)

official capacity as Superintendent of the

)

Ohio State Highway Patrol; ~~AEEJjEUTENANT )

~Y, individually and in his official )

capacity as Traffic and Drug Interdiction Team

)

Coordinator for the State of Ohio; SERGEANT

)

I3RUCEELLING, individually, and in his official

)

cap·aciiY··as····'Su·pervisor, Quad A Traffic Drug

)

Interdiction Team; LIEUIENA.NT BERRY

)

~.»::;w..,..:'»:'.".'

.

~f;.bQE.J3,<S individually and in hisoffl6ial cap'acity

)

as Swanton Post Commander of the Ohio State

)

Highway Patrol, TBOOPERS KEVIN KIEFER,

)

SI.EYEN R. BLUE, REBECCA AMBBOS~

)

JOHN BARANOWSKI, BRIAN COURTNEY

)

DEAN LAUBACHER, PAUL PIATAREK,

)

PA!J.L eAeE, BOB STEVENS, RlCHAR[LUNGER )

and CHARLI;S-V\jrr:LIAMS, a.k.a TRACY McCRAY )

and other unknown officers of the Ohio State

)

Highway Patrol, in their individual capacities,

)

)

Defendants.

)

)

No. 3:96CV7580 Judge: JAMES G. CARR
FIRST AMENDED COMPLAINT: CLASS ACTION

INTRODUCTION 1. This is a civil rights class action in three Counts. The suit challenges the practice of the Ohio State Highway Patrol of making automobile stops, detentions and searches, with or without lawful grounds to stop, detain and search, based on race and/or national origin.
2. Count I is brought pursuant to 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 2201 et seg. for violations of the First and the Fourth Amendments to the United States Constitution and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In Count I, plaintiffs seek declaratory and injunctive relief and money damages for themselves and for the plaintiff class.
3. Count II is brought pursuant to Title VI of the Civil Rights Act of 1964,42 U.S.C.
m § 2000d m~., as amended, and 28 CFR § 32.101 ~., the administrative regulations
of the United States Department of Justice effectuating Title VI. In this Count, plaintiffs seek declaratory and injunctive relief and money damages for themselves and for the plaintiff class.
4. In Count III, plaintiffs invoke the supplemental jurisdiction of this Court pursuant to 28 U.S.C. § 1376, and raise claims under state constitutional and common law. In Count III, plaintiffs seek money damages for themselves and for the plaintiff class.
JURISDICTION AND VENUE
5. The jurisdiction of the Court in Counts I and II is founded on 28 U.S.C. §§ 1331 and 1343 (a) (3) & (4) and 42 U.S.C. § 2000d-1. Jurisdiction in Count III is based on this Court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
2

6. Venue is proper in this Court, pursuant to 28 U.S.C. § 1391 (b) (2), because
defendant the Ohio State Highway Patrol maintains an office, and defendant Marshall resides, in this district.
PARTIES 7. Plaintiff Farm Labor Organizing Committee (FLOC) is a Union of migrant and seasonal farm workers. It is based in Toledo, Ohio, and has approximately 15,000 members nationwide. During the harvest season, FLOC has approximately eight thousand members traveling and residing in Ohio. These members are predominately Hispanic, and virtually all of them will drive in Ohio or travel in vehicles driven on Ohio's highways by Hispanic drivers. FLOC's members are currently traveling through or residing in Ohio, and will return year after year. In addition, many of FLOC's members work and reside in Michigan, and travel from Florida and other points South through Ohio en route to their employment. FLOC conducts much of its business on the highways of Ohio, and its organizers have been victims of defendants' actions. Plaintiffs Fernando Cuevas Sr. and Fernando Cuevas Jr. are members of, as well as employees of, FLOC. Plaintiffs Eusebio and Guadalupe Ariola and Merced Valdez and several other plaintiffs are members of FLOC. 8. Plaintiffs Jose Aguilar and Irma Esparza are lawfully admitted permanent resident aliens in the United States. Mr. Aguilar and Ms. Esparza are Hispanic. Defendants seized the lawfully issued alien registration receipt cards of Mr. Aguilar and Ms. Esparza during a traffic stop. Mr. Aguilar and Ms. Esparza travel in and through Ohio freq uently.
3

9. Plaintiff Merced Valdez is a resident of Ohio. He is Hispanic, and is a United States citizen. He is a member of FLOC.
10. Plaintiff Fernando Cuevas Sr. is Hispanic, and is a United States citizen. Each year, he resides part of the year in Ohio and part of the year in Florida. He is the First Vice President of FLOC.
11. Plaintiff Fernando Cuevas Jr. is Hispanic, and is a United States citizen. Each year, he resides part of the year in Ohio and part of the year in Florida. He is a field organizer for FLOC.
12. Plaintiff Alicia Quintero was recently employed with Migrant Head Start in Ohio. She is Hispanic, and a citizen of the United States. She resides in Ohio and travels frequently to Texas.
13. Plaintiff Francisco Quintero is Hispanic, and a citizen of the United States. He resides in Ohio, and travels frequently to Texas.
14. Plaintiffs Guadalupe and Eusebio Ariola are farm workers who spend part of each year in Ohio. They plan to return to Ohio each year in the future. They are both Hispanic citizens or lawfully admitted aliens.
15. Plaintiff Melissa Lopez is a citizen of the United States. She is Hispanic, and resides part of each year in Ohio. She plans to return to Ohio each year in the future.
16. Plaintiff Margarita Olivares is a migrant farm worker from Florida. He is a lawfully admitted permanent resident alien of the United States. He plans to return to Ohio in the future to work and reside. He is Hispanic.
4

17. Defendant Ohio State Highway Patrol ("Highway Patrol" or "O.H.P.") is a state

law-enforcement agency. Pursuant to O.R.C. § 5503.01 et §eg., the O.H.P. is empowered

to enforce the laws of the State of Ohio. The O.H.P. is a recipient of federal funds. The

O.H.P. is a defendant in Count II only, pursuant to 42 U.S.C. § 2000d-7.

18. Defendant Superintendent Kenneth Marshall ("MarshalllJ) is the Superintendent

. .... -.-'~~

,......

._ ....

of the O.H.P. during some of the relevant time periods. Defendant Marshall is sued in his

individual capacity for money damages and in his official capacity for injunctive relief.

Defendant Marshall is authorized to make policy for the defendant O.H.P.

19. Defendant Colonel Warren Davies ("Davies") was the Superintendent of the

O.H.P. during most of the relevant time periods. Defendant Davies is sued in his individual

capacity for money damages. Defendant Davies was authorized to make policy for the

defendant O.H.P.

20. Defendant Staff Lieutenant William D. Healy is the statewide coordinator of the ,--....... ~-......,......"~"•.•.•.•.•-..........-.............-................................................................. .-: .
Traffic and Drug Interdiction Team ("TOIT"), a program of the O.H.P. that focuses on stops

and searches of drivers and vehicles on the streets and highways of the Northwest part of

Ohio. He has served in that capacity since the TOIT's inception. When he learned of

defendants' practices relating to the immigration questioning and seizure of immigration

documents of plaintiffs Aguilar, Esparza and other Hispanics, he defended the practice and

refused to take action to curtail the practice. He is sued for damages in his individual

capacity as well as for injunctive relief in his official capacity. He is authorized to make

policy for the defendant O.H.P. as it relates to the TOIT.

5

21. Defendant Bruce Elling is a Sergeant with the Ohio State Highway Patrol and

a quadrant supervisor of the TDIT. He is authorized to make policy for those defendants

involved in the TDIT. When he learned that defendant Kiefer and his partners had seized

the permanent resident alien cards of plaintiffs Aguilar and Esparza, and that defendant

Kiefer's sergeant had told Kiefer that it was not good to confiscate immigration documents,

Elling refused to take any action to curtail the practice, even after he learned that

defendant Kiefer and his partners planned to defy the sergeant and continue to confiscate

Hispanic' immigration documents. He is sued in his individual capacity for money damages

and in his official capacity for purposes of injunctive relief.

22. Defendant Berry Elders is the head of the Swanton Highway Patrol Post located

along the Ohio Turnpike between Exits 3 and 3A south of Toledo. He is sued in his

individual capacity for money damages and in his official capacity as Post Commander for

purposes of injunctive relief.

23. Defendants Kevin Kiefer, Rebecca Ambrose, Steven R. Blue, John Baranowski, ..... ~'~"''''''''''''':';''''''''''''-''''''''':''~''-:..•.''",""...,....., ;.

Brian Courtney, DeaQ...~~.~~.~9.Der, Paul ~i.~t~rek, Paul P~pe, Bob St~vens, RichardqQ.g~r

....•.•............•...............--..........-...•.•...•;•.•••.•..•.•:...........

"........",......... ' ............................;......

...'...................

"....

.'"

.

and C~~r~.~§ Y'fi.II.!~ms, a.k.a Tracy McCray are troopers of the Ohio State Highway Patrol.

Defendant Kiefer testified in deposition that most of these troopers had questioned

motorists as to their immigration status, sometimes handling and confiscating immigration

cards. Plaintiffs also sue other, unknown officers of the Highway Patrol who effectuated

the stops, detentions and searches of the named plaintiffs, as well as unknown officers of

the Highway Patrol who have effectuated the stops, detentions and searches of other class

members. All such officers are sued in their individual capacities only.

6

24. At all times pertinent hereto, all defendants were acting under color of state law and their conduct constituted state action.
CLASS ALLEGATIONS 25. Plaintiffs bring this Complaint as a class action under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs seek to represent, pursuant to Rules 23 (b) (2) and 23 (b) (3), a class of all persons traveling on the streets and highways of Ohio, who, because of their national origin and/or race, in the past have been, or in the future will be, stopped, detained, searched, with or without legally sufficient cause and justification, and/or harassed, including the following two subclasses: A. All Hispanic motorists who have been questioned by defendants as to their immigration status, or who have had their immigration documents questioned and/or seized by defendants; and B. A" Hispanic passengers who have been questioned by defendants as to their immigration status, or who have had their immigration documents questioned or seized by defendants. 26. All of the prerequisites to a class action as stated in Rule 23 (a) are satisfied by the class and sub-classes. a. Numerous individuals have been stopped, detained and also often searched
by defendants pursuant to defendants' unlawful practices, and numerous individuals will be in the future. Defendants have admitted that they have questioned hundreds of motorists and passengers as to their immigration status and documentation, and defendants have admitted that they have
7

examined hundreds of immigration documents, and have seized approximately 100 immigration documents. Therefore, the class and subclasses are so numerous that joinder of all members is impracticable. b. There are questions of law and fact common to the plaintiff class. The common questions include whether the defendants' practices described below of stopping, detaining and also often searching persons on the basis of national origin and/or race with or without legally sufficient cause and justification unconstitutionally burdens the First, Fourth and Fourteenth Amendment rights of those so stopped, detained and searched, their constitutional right to freedom of movement, and the corresponding state constitutional guarantees, and whether these practices of defendants violate Title VI of the Civil Rights Act of 1964. c. The claims of the named plaintiffs are typical of the claims of the class and sub-classes: the named plaintiffs were stopped, detained and also searched pursuant to the practices challenged here, as were members of the class and sub-classes. d. The named plaintiffs will fairly and adequately represent the interests of the class: they have no interests antagonistic to the class; they seek declaratory and injunctive relief and money damages on behalf of the entire class and such relief will benefit all members of the class; and they are represented by counsel who are competent and experienced in civil rights and class action litigation.
8

27. The class satisfies Rule 23 (b) (2) because the defendants have engaged in a course of conduct common to all members of the class and sub-classes, and final declaratory and injunctive relief in favor of the plaintiff class is therefore appropriate. In addition, the class satisfies Rule 23 (b) (3) because the questions of law and fact common to members of the class predominate over any questions affecting individual members and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
FACTUAL ALLEGATIONS Defendants' First Unlawful Practice
28. It is the practice of the Highway Patrol and its officers to stop, detain and also often search individuals traveling on streets and highways in Ohio because of the travelers' race and/or national origin, with or without legally sufficient cause and justification ("the first practice"). Once defendants make the stops, they treat the motorists and passengers differently based on race and/or national origin. Each of the named plaintiffs have been victims of the first practice.
29. The first practice is widespread and systemic. For example, during the three month period from December 1, 1996 through February 28, 1997, 25% of the traffic citations issued by defendant Kiefer were issued to Hispanics. In addition, during the same time period, defendant Kiefer detained nearly 20 other Hispanics for long periods of times, without issuing any traffic citation. However, according to the 1990 United States Census, the upper mid-west (Illinois, Michigan, Ohio, Indiana and Wisconsin) is only 3% Hispanic. RecentlyI Judge Skow of the Lucas County Court of Common Pleas, wrote about the traffic
9

stop of two Hispanics by the TOIT: "In sum then, one is left to wonder if this car-outwardly unremarkable and with no suspicious behavior-was targeted.a.by means of a profile. Trooper Kiefer insists not, but Trooper Kiefer's credibility is suspect." On the other side of Ohio, Judge Cross of the Medina County Court of Common Pleas, wrote of another stop of Hispanic motorists by the TDIT: "Until the police can provide this Court with more reason to delay motorists and conduct searches than the national origin of the persons detained, this Court will suppress evidence gained from such searches." In yet another repudiation of the tactics of the TOfT, Judge Gretick of the Williams County Court of Common Pleas wrote about another stop of aliens by the TOfT: "The troopers denied using any 'profile' in deciding which cars to stop ....Finding none other than that the vehicle and its occupants met some impermissible profile, the Court finds the stop to be constitutionally deficient." Defendants' Second Unlawful Practice
30. At times, when defendants engage in the first practice, they also question some or all of the occupants of vehicles as to their immigration status, including demands to see immigration documents ("the second practice"). This is a routine practice. Defendants have admitted identifying large numbers of "illegal" aliens during "routine traffic stops", and admit detaining several hundred Hispanics for investigation by the Immigration and Naturalization Service Border Patrol in Michigan. Defendants' Third Unlawful Practice
31. At times, when defendants engage in the first and second practices, defendants confiscate crass members' immigration documents, including lawfully issued certificates of alien registration or alien registration receipt cards ("the third practice"). Defendants keep
10

these lawfully issued certificates of alien registration or alien registration receipt cards for long periods of time. Defendants' third practice subjects aliens to federal criminal prosecution for failure to possess their lawfully issued certificates of alien registration or alien registration receipt cards. In addition, defendants are committing a federal criminal act by causing these persons to be without their lawfully issued certificates of alien registration or alien registration receipt cards.
32. Defendant Trooper Kevin Kiefer told several witnesses that an individual named Coutcher, who is a federal law-enforcement agent with the Immigration and Naturalization Service Border Patrol Office in Trenton, Michigan, has traveled around the State of Ohio training O.H.P. troopers to confiscate aliens' immigration documents, and bring them to Coutcher, who checks the documents through a computer system. Kiefer said that it is his practice to collect immigration documents from alien travelers from Saturday through Thursday, and deliver the confiscated documents on Fridays to agent Coutcher. Kiefer testified under oath that he has witnessed many other troopers, both in and out of the TDIT, examine and confiscate permanent resident alien cards from Hispanic motorists and passengers during "routine traffic stops."
33. Defendants' practices as described above are widespread. Individuals are stopped, detained and also often searched pursuant to the three practices in all areas of the State of Ohio on a persistent, recurrent basis.
11

The Stop, Detention and Search of Plaintiffs Jose Aguilar and Irma Esparza, and the Seizure of Their Lawfully Issued Permanent Resident Alien Cards 34. Plaintiffs Jose Aguilar and Irma Esparza are lawfully admitted Permanent
Resident Aliens who reside in Chicago, Illinois. They have many friends and relatives in the Toledo, Ohio area, and travel frequently between Chicago and Toledo.
35. On March 26,1995, at approximately 2:00 P.M., plaintiffs Aguilar and Esparza were traveling eastbound on Interstates 80-90 ("Toll Road") near the Airport Highway (Ohio 2) Exit. Mr. Aguilar was driving. Defendant Officer Kiefer was driving behind plaintiffs and activated the flashing lights on his patrol car, thereby signaling to Mr. Aguilar to pull over. Mr. Aguilar pulled over to the shoulder and Kiefer pulled his patrol car over behind the vehicle driven by Mr. Aguilar.
36. Officer Kiefer approached the vehicle driven by Mr. Aguilar and asked for Mr. Aguilar's driver's license and immigration documents. Mr. Aguilar handed Kiefer his driver'S license and alien registration receipt card. Officer Kiefer went back to his patrol car with Mr. Aguilar's documents. Officer Kiefer gave Mr. Aguilar a warning ticket for having a broken headlight.
37. Highway Patrol troopers took possession of the immigration documents of Mr. Aguilar and Ms. Esparza. Ms. Esparza and Mr. Aguilar were told their immigration documents would be sent by defendants to another location for investigation of their authenticity.
38. Mr. Aguilar and Ms. Esparza were detained at the roadside for approximately twenty (20) minutes while the officers searched their vehicle and possessions. The Ohio
12

Highway Patrol officers also used a dog to sniff around the plaintiffs' vehicle, opened the inside door panel of the vehicle, searched the contents of the back seat and searched the contents of a number of suitcases and other items in the locked trunk of the vehicle without the permission of either Ms. Esparza or Mr. Aguilar. No guns, drugs, contraband or evidence of illegal activity was found.
39. In his Answer filed with this Court in Aguilar v. Ohio State Highway Patrol, No. 3:96CV7729 (N.D. Ohio) (Carr, J.), defendant Kiefer has confirmed the events described in paragraphs 35 to 38.
40. No defendant explained to Ms. Esparza or Mr. Aguilar why the cards were confiscated, where the cards would be taken, who would view the cards, how to learn the cause of the seizure of the cards, how to seek return of the cards and how to chaUenge defendants' taking of the cards.
41. At no time did Ms. Esparza or Mr. Aguilar consent to the search of their vehicle and possessions or the seizure of their immigration documents.
42. The vehicle of Ms. Esparza and Mr. Aguilar was detained at the roadside without reasonable suspicion of unlawful activity and the length of their detention exceeded a reasonable amount of time for an investigative stop even if such stop had been lawful. Their vehicle and possessions were searched without probable cause.
43. The complained of conduct by Officer Kiefer and other unnamed officers of the Ohio State Highway patrol was motivated by the raceland or national origin of Ms. Esparza and Mr. Aguilar.
13

44. The seizure of plaintiffs' immigration documents was pursuant to the third practice identified stated above.
45. In deposition, defendant Healy testified that in the last 18 months, approximately 300-400 aliens had been detained during routine traffic stops and held for the Border Patrol. Defendant Healy also testified that TDIT troopers had received a few hours of training on identifying immigration documents several years ago, but no training since, and that field troopers had never received any training on any matters related to immigration.
46. In deposition, defendant Kiefer testified that in the last two years, he has questioned over 300 aliens about their immigration status, and had examined 75-100 permanent resident alien cards, keeping approximately 10 of them permanently. He testified that he called the Border Patrol to investigate virtually all of the aliens he had questioned about immigration. Kiefer could not identify the race or nationality of any nonHispanics he had questioned about immigration. The Stop, Detention and Search of Plaintiff Merced Valdez
47. Approximately six months ago, an unknown Highway Patrol officer who was behind Plaintiff Merced Valdez's car turned on his flashing lights, signaling Mr. Merced Valdez to pull over. Mr Merced Valdez pulled the car over to the right shoulder.
48. The officer approached the car and asked for Mr. Merced Valdez's license. After Mr. Merced Valdez provided his license, the trooper demanded to see his immigration papers. Mr. Merced Valdez is a United States citizen and as a result possesses no immigration papers.
14

49. When Mr. Merced Valdez questioned the trooper's request for immigration papers, the trooper gruffly ordered Mr. Valdez out of the car, and ordered him to raise his hands and face away from his car. Upon information and belief, the trooper then searched Mr. Valdez' car. Mr. Valdez never consented in any way to the trooper's actions.
50. Eventually, the trooper instructed Mr. Merced Valdez that he was free to go. No ticket or citation of any sort was issued. The Stop. Detention and Search of Plaintiff Margarito Oliyares
51. Plaintiff Margarito Olivares is a migrant farm worker who resides in farm labor camps in Ohio during part of the year. During August, 1996, he was walking along a state route near Fremont, Ohio, returning to his farm labor camp from a nearby grocery store. A Highway Patrol trooper stopped him, and demanded to search his grocery bag. The trooper also demanded to see his identification, and carefully examined Mr. Olivares' lawfully issued alien registration receipt card. The trooper then ordered Mr. Olivares to return directly to his farm labor camp, without making any detours. The trooper never explained to Mr. Olivares why he was detained and searched. The Stop. Detention and Search of Plaintiff Melissa Lopez
52. Plaintiff Melissa Lopez is a farm worker near Fremont Ohio. In August, 1996, she, her mother, and her daughter were driving en route to a migrant farm labor camp near Fremont. A Highway Patrol trooper drove out from a corn field and stopped Ms. Lopez next to the farm labor camp. The trooper asked Ms. Lopez several questions of a personal nature while peering into the interior of Ms. Lopez's car. None of the Lopezes were given any ticket or citation of any sort. Throughout the summer of 1996, members of the
15

Highway Patrol have routinely parked next to this farm labor camp, and watched the camp and its occupants from their cars. The camp is on an isolated back road in Sandusky County, with very little traffic. The Stop. Detention and Search of Plaintiffs Guadalupe and Eusebio Ariola
53. Guadalupe and Eusebio Ariola are migrant farm workers who live part of the year in Texas and part of the year in migrant farm labor housing near Fremont, Ohio. In June of 1996, Eusebio was driving the family in a van on the turnpike between Fremont and Toledo, Ohio. It was approximately 2:30 in the afternoon. They were stopped by two troopers of the Highway Patrol. Almost immediately a sport utility vehicle arrived with a drug-sniffing dog. The trooper asked the Ariolas to sign a consent to search form. When the Ariolas asked why the troopers wanted to search the van, the trooper said that "it was procedure." Reasonably believing that they could not refuse, Eusebio signed. The van was thoroughly searched for an extended period of time. After finding no contraband of any sort, the troopers searched Guadalupe Ariola's purse and wallet, looking through each of her cards. The Ariolas were given no ticket or written citation of any sort. The First Stop, Detention and Search of Plaintiff Fernando Cuevas, Jr.
54. Plaintiff Fernando Cuevas, Jr. is an organizer for the Farm Labor Organizing Committee (FLOC). He is a citizen of the United States. During the summer in 1993, he was driving on FLOC business. He was pulled over on Interstate 280 by five Highway Patrol officers. One of the officers demanded to see his license and vehicle registration. Mr. Cuevas, Jr. was told that he was being held "on suspicion.tJ The officers demanded to
16

search Mr. Cuevas' pick-up truck. Reasonably believing that he was not allowed to refuse, Mr. Cuevas permitted his vehicle to be searched.
55. Highway Patrol officers detained Plaintiff Fernando Cuevas, Jr. for approximately two and one-half hours, while the officers searched his truck. Absolutely no contraband was found. Mr. Cuevas was released and was given no warning ticket nor citation of any type. He missed his Union farm labor camp meeting. The Second Stop. Detention and Search of Plaintiff Fernandez Cuevas, Jr.
56. Later during the summer of 1993 while again conducting FLOC business, Mr. Cuevas Jr. was driving on State Route 20 just outside of Woodville, Ohio. A Highway Patrol officer ordered him to pull over. The officer demanded that he turn over his license and registration. The officer repeatedly questioned Mr. Cuevas concerning use of funds from an Ohio bank to purchase a truck registered in Florida. After approximately one-half hour, Mr. Cuevas was released. He was not issued a warning ticket or citation of any sort. The Third Stop. Detention and Search of Plaintiff Fernandez Cuevas, Jr.
57. During September, 1995, Plaintiff Fernando Cuevas, Jr. was driving on the Ohio Turnpike just west of the Toledo Airport. It was approximately noon, and he was driving a car registered to the Farm Labor Research Project (FLRP). He was accompanied by his father, Plaintiff Fernando Cuevas, Sr., who is the first vice-president of FLOC. They were driving from one Union camp meeting to another.
58. Plaintiff Fernando Cuevas, Jr. had the cruise control set at the speed limit. They passed a Highway Patrol trooper parked at the side of the turnpike. The trooper began to follow them. Approximately two miles ahead, they saw three more Highway
17

Patrol cruisers parked on the side of the turnpike. One of those troopers signaled the Cuevas' to stop, which they did.
59. Once stopped, both of the Cuevas' were ordered to produce their drivers' licenses and car registration. After each complied, each was separately questioned at length by the troopers about who they were visiting, what they were doing, who they had talked with, and what their plans were. All four of the O.H.P. cruisers stayed at the scene. In the course of questioning, one of the troopers learned that the car was registered to FLRP. Eventually, the Cuevases were released. The Highway Patrol officers did not issue a ticket, warning or citation of any sort. The First Stop, Detention and Search of Plaintiffs Francisco and Alicia Quintero
60. In 1991, Plaintiffs Francisco and Alicia Quintero and their four children were driving on the Ohio Turnpike west of Toledo en route to visit their seriously ill mother in Texas, when they were detained by three O.H.P. cruisers and one undercover car carrying a drug sniffing dog. The Quintero's car and possessions were searched for over one hour. No contraband was found. They were not given a ticket or citation of any sort. The Second Stop. Detention and Search of Francisco and Alicia Quintero
61. On or about March, 1996, Plaintiffs Francisco and Alicia Quintero were driving in Northwestern Ohio when they were stopped by an unmarked O.H.P. car. Francisco and their four children were ordered out of the car, and their car and the families' possessions were searched for approximately forty minutes. They were not asked to produce their drivers' licenses, registration or any form of identification. They were issued no warning, ticket nor citation of any sort.
18

Other Instances of Defendants' Unlawful Practices 62. Both prior and subsequent to the named plaintiffs being stopped, detained and
searched by Highway Patrol troopers based on national origin and/or race with or without legally sufficient cause and justification, numerous other Hispanics and persons of color have been subjected to defendants' persistently applied practices, in many instances, multiple times. Among these applications of defendants' practices are the following: The Stop of Cynthia Ruiz
63. Cynthia Ruiz resides in Texas and is employed as a county prosecutor. She is Hispanic. During the summer of 1994, while she was employed as a summer law clerk for Advocates for Basic Legal Equality, Inc. (ABLE), in Fremont, Ohio, she was stopped on the Ohio Turnpike by a Highway Patrol trooper. He asked her several personal questions, and then said that the car smelled like marijuana and asked her if she had been smoking marijuana that morning. She had not. The trooper then asked to search her car. She refused. The trooper continued to attempt to intimidate her. She finally demanded to be ticketed or released. The trooper finally released her. She was issued no warning, ticket or citation of any sort. The Stop. Detention and Search of Ruben Valdez
64. Ruben Valdez is a resident of Ohio. He is Hispanic, and is a United States citizen. While driving home in Defiance, Ohio in 1996, Ruben Valdez was detained at gunpoint by several police officers. An unknown Highway Patrol trooper was present during the stop and search of Ruben Valdez's car. At no time did Mr. Ruben Valdez consent to the stop, detention or search of the car. No drugs, guns, contraband or evidence of illegal
19

activity was found. Mr. Ruben Valdez was not given a ticket, warning or citation of any sort, General Allegations Concerning Defendants' Conduct
65. Each Plaintiff's auto was stopped without reasonable suspicion of unlawful activity, No plaintiff was engaged in any illegal activity. Each plaintiff was detained at the roadside without reasonable suspicion of unlawful activity and the length of each plaintiffs detention exceeded a reasonable amount of time for an investigative stop, even if such stop had been lawful. Each plaintiffs car and possessions were searched without probable cause.
66. The complained of conduct by each defendant was motivated by plaintiffs' national origin and/or race.
67. The stop, detention and search of plaintiffs was pursuant to the three practices stated above.
68. Defendants Davies, Elling, and Elders either authorized or knowingly acquiesced in the unconstitutional actions of their subordinates, and they were deliberately indifferent to constitutional violations likely to result from serious deficiencies in the training program of Highway Patrol officers concerning stopping of vehicles on a prohibited basis.
69. Each defendant and the other unknown officers acted knowingly and intentionally. Moreover, their actions were taken with recklessness or callous disregard for plaintiffs' rights.
70. The actions of defendants in unlawfully stopping and detaining plaintiffs and searching their cars, persons and possessions have had a disproportionate effect on
20

Hispanics and other persons of color have penalized plaintiffs for the exercise of their constitutional right to freedom of movement in the State of Ohio and have hindered plaintiffs' exercise of that right. Injury To Plaintiffs
71. As a direct and proximate result of defendants' conduct as stated herein, plaintiffs and the class they seek to represent have suffered humiliation, embarrassment, mental fright and emotional distress. In addition, defendants' conduct has hindered plaintiffs and the class they seek to represent in freely traveling the streets and highways in the State of Ohio. Defendants' actions have had a discriminatory impact against plaintiffs and class members. Necessity for Injunctive Relief
72. Each plaintiff presently either resides in Ohio or has family, friends or business interests in Ohio and thus expects to travel Ohio's highways in the future. They wish to be free to travel to and in Ohio and on highways in Ohio without being stopped, detained and searched pursuant to the defendants' unlawful practices. Plaintiff FLOC is hindered in its mission and in its operation by defendants' actions.
73. Plaintiffs and the class they seek to represent are threatened with substantial, immediate and irreparable injury at the hands of the defendants. Defendants began their practices of stopping, detaining and also often searching Hispanic persons traveling on highways in Ohio based on national origin and/or race before the incidents involving the named plaintiffs, and defendants continue to engage in the practices against the numerous members of the class. Individual Highway Patrol troopers are authorized by the Highway
21

~:
Patrol to engage in the conduct to which the named plaintiffs and numerous other Hispanics and persons of color have been subjected. Plaintiffs will also continue in the future to suffer the ongoing effects of defendants' past applications of the practice to them.
74. Unless restrained by this Court, defendants will continue their unlawful practices. Pursuant to these practices, plaintiffs are likely in the future to be stopped, detained and searched by defendants based on national origin and/or race with or without legally sufficient cause and justification. Plaintiffs continue to, and will in the future, travel on streets and highways in Ohio patrolled by the Highway Patrol. Plaintiffs will continue to be unable, even by fully conforming their conduct to all legal requirements, to avoid being stopped, detained and also often searched by defendants pursuant to defendants' unlawful practices.
75. Plaintiffs have suffered irreparable injury and, in the absence of injunctive relief, will continue to suffer irreparable injury. They have no adequate remedy at law.
CLAIMS FOR RELIEF COUNT I
(Interference with Freedom of Association) 76. Defendants' actions in maintaining the practices and in stopping plaintiffs' automobiles and detaining plaintiffs pursuant to these practices have deprived plaintiffs and the class they seek to represent of their right to freedom of association as guaranteed by the First Amendment to the United States Constitution.
22

x'
(Unlawful Detention) 77. Defendants' actions in maintaining the practices and in stopping plaintiffs' automobiles and detaining plaintiffs pursuant to the practices have deprived plaintiffs and the class they seek to represent of their right to be free from unreasonable seizures as guaranteed by the Fourth Amendment to the United States Constitution.
(Unlawful Search) 78. Defendants' actions in maintaining the practices and in searching plaintiffs, their vehicles and their possessions pursuant to the practices have deprived plaintiffs and the class they seek to represent of their right to be free from unreasonable searches as guaranteed by the Fourth Amendment to the United States Constitution.
(Denial of Equal Protection) 79. The defendants' actions in maintaining the practices and in stopping, detaining and searching plaintiffs, their vehicles and their possessions pursuant to the practices have been motivated by discriminatory animus and constitute denial of equal protection of the laws based on plaintiffs' national origin and/or race in violation of the Fourteenth Amendment to the United States Constitution.
(Violation of Right to Travel) 80. The defendants' actions in maintaining the practices and in stopping, detaining and searching plaintiffs, their vehicles and their possessions pursuant to the practices have unreasonably burdened the fundamental right to travel guaranteed to plaintiffs and the class they seek to represent by Article IV, Section II of the United States Constitution.
23

(Violation of Right to Freedom of Movement) 81. The defendants' actions in maintaining the practices and in stopping, detaining and searching plaintiffs, their vehicles and their possessions pursuant to the practices have unreasonably burdened the fundamental right to freedom of movement guaranteed to plaintiffs and the class they seek to represent by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
COUNT II (Violations of Federal Civil Rights Act and Regulations) 82. The Ohio State Highway Patrol maintains or constitutes a program or activity that receives federal financial assistance from the United States Department of Justice.
Thus, it is subject to the requirements of 42 U.S.C. § 2000d m~. and 28 CFR § 42.101
m~. Plaintiffs are intended beneficiaries of such program or activity. 83. The selection of persons to be stopped, detained and searched on the basis
of race and/or national origin, with or without legally sufficient cause or justification constitutes intentional discrimination and has a discriminatory effect and a disproportionate impact on Hispanics and other persons of color.
84. The violation of 42 U.S.C. § 2000d and 28 CFR § 42.101 et seq. as alleged
above, has caused, and will cause unless the practice is enjoined by this Court, tremendous harm and public humiliation to Hispanics and other individuals of color who are stopped, detained or searched pursuant to the above practices.
85. The defendants' actions in maintaining the practices and in stopping, detaining and searching plaintiffs pursuant to the practices have been motivated by discriminatory
24

animus, have a discriminatory effect, have a disproportionate impact on Hispanics and other persons of color and constitute a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d .m~. and its implementing regulations at 28 CFR § 42.101 .m~.
COUNT III (Supplemental State Claims) 86. All defendants in this Count are sued in their individual capacities only. 87. Defendants have acted recklessly, oppressively and willfully, with a design to oppress and injure plaintiffs. (State Constitution - Unlawful Seizure) 88. The actions of defendants in maintaining the practices and in stopping and detaining plaintiffs pursuant to the practices have denied plaintiffs and the class they seek to represent their right to be free from unreasonable seizures in violation of Art. I, Sec. 14 of the Ohio Constitution. (State Constitution - Unlawful Search) 89. The actions of defendants in maintaining the practices and in stopping, detaining and also often searching plaintiffs, their vehicles and their possessions pursuant to the practices have been motivated by discriminatory animus and constitute denial of equal protection of the laws based on plaintiffs' national origin or race in violation of the Ohio Constitution.
25

(State law - False Arrest)
90. When defendants arrest and detain plaintiffs without probable cause and without authorization pursuant to federal or Ohio law, they have falsely arrested plaintiffs and similarly situated class members.
PRAYER FOR RELIEF WHEREFORE, plaintiffs request: A. A declaratory judgment that defendants' practices of stopping, detaining and also often searching persons, their vehicles and their possessions with or without legally sufficient cause or justification on the basis of national origin and/or race violates the rights of plaintiff class members, guaranteed by the First Amendment, to freedom of association; B. A declaratory judgment that defendants' practices of stopping, detaining and also often searching persons, their vehicles and their possessions with or without legally sufficient cause or justification on the basis of national origin and/or race violates the rights of plaintiff class members, guaranteed by the Fourth Amendment, to be free from unreasonable searches and seizures; C. A declaratory judgment that defendants' practices of stopping, detaining and also often searching persons, their vehicles and their possessions with or without legally sufficient cause or justification on the basis of national origin and/or race violates plaintiff class members' right to Equal Protection of the laws under the Fourteenth Amendment; D. A declaratory judgment that defendants' practices of stopping, detaining and also often searching persons, their vehicles and their possessions with or without legally sufficient cause or justification on the basis of national origin and/or race violates plaintiff
26

class members' constitutional right to freedom of movement as secured by the Due Process Clause of the Fourteenth Amendment;
E. A decfaratory judgment that defendants' practices of stopping, detaining and also often searching persons, their vehicles and their possessions with or without legally sufficient cause or justification on the basis of national origin and/or race violates plaintiff class members' constitutional right to freedom of travel as secured by Article IV, Section II of the United States Constitution;
F. A decfaratory judgment that defendants' practices of stopping, detaining and also often searching persons on the basis of national origin and/or race, with or without legally sufficient cause or justification, violates Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and its implementing regulations at Title VI, 28 CFR § 42.101 et~.;
G. A preliminary, and then a permanent injunction barring all defendants and their officers, agents, servants, employees and attorneys and those persons in active concert or participation with them from stopping or detaining individuals or searching them, their possessions or their automobiles on the basis of race and/or national origin, with or without legally sufficient cause or justification;
H. Reasonable and appropriate compensatory damages for the named plaintiffs and each plaintiff class member for the unlawful stops, detentions and searches of plaintiffs;
I. Punitive damages for the named plaintiffs and each class member in an amount to be ascertained at trial;
27

J. Plaintiffs' costs, expenses and reasonable attorneys' fees pursuant to 42 U.S.C.
§ 1988; and
K. Such other and further relief as this Court deems necessary and proper. Respectfully submitted, The Equal Justice Foundation 520 Madison Avenue, Suite 1026 Toledo, Ohio 43604-1306 (419) 246-1000
By:
illiam B. Senhauser (006623 ) J. Mark Finnegan (0032491)
28

 
 95 F.Supp.2d 723 (2000)
FARM LABOR ORGANIZING COMMITTEE, et al., Plaintiffs, v.
The OHIO STATE HIGHWAY PATROL, et al., Defendants.
No. 3:96CV7580.
United States District Court, N.D. Ohio, Western Division.
April 20, 2000.
724567 *724 *725 *726 *727 John Mark Finnegan, William B. Senhauser, Equal Justice Foundation, Toledo, OH, for Plaintiff.
Allen P. Adler, Carol Hamilton O'Brien, Office of Attorney General, Corrections Litigation Section, Columbus, OH, Tomi L. Dorris, Office of Attorney General, Ohio State Highway Patrol, Columbus, OH, for Defendants.
ORDER
CARR, District Judge.
This is a civil rights case involving the questioning of Hispanic motorists about their immigration status by the Ohio State Highway Patrol (OSHP). This court has jurisdiction pursuant to 28 U.S.C. § 1331. Pending is plaintiffs' motion for reconsideration of my September 8, 1999 Order. (Doc. 111). For the following reasons, plaintiffs' motion for reconsideration shall be granted in part and denied in part.
BACKGROUND
Plaintiffs are migrant workers who claim that the OSHP, particularly members of its Traffic and Drug Interdiction Team (TDIT), violated their constitutional rights by interrogating them about their immigration status, and, in some cases, confiscating immigration documents, on the basis of their Hispanic appearance. Plaintiffs seek a an injunction prohibiting this alleged practice and money damages. (See Doc. 44).
On Sunday, March 26, 1995, at approximately 2:00 p.m., named plaintiffs Aguilar and Esparza were traveling eastbound on Interstates 80-90 near the exit for Ohio State Route 2. Aguilar was driving. Trooper Kiefer pulled plaintiffs over for a faulty headlight. Plaintiffs do not dispute the legitimacy of this stop.
Trooper Kiefer approached and asked to see Aguilar's license. Aguilar complied, providing an Illinois license. Trooper Kiefer then ordered Aguilar out of the car and placed him in the back of his cruiser.
Almost immediately, a second cruiser arrived. The trooper from the second cruiser walked a drug-sniffing dog around the outside of plaintiffs' vehicle. The dog "alerted," thereby indicating that plaintiffs' vehicle contained narcotics.[1]
The second trooper demanded to see Esparza's identification; she provided Illinois photo identification. She then was asked to produce her green card, which she did. Esparza was placed in the cruiser with Aguilar. Trooper Kiefer demanded to see Aguilar's green card at that time.
After initial examination of the green cards, Trooper Kiefer asked plaintiffs where they had gotten their green cards and whether they had paid for them, meaning to ask whether they were forged documents. Plaintiffs replied 728 that they had, in fact, paid for their green cards, intending to communicate that they had *728 paid the required processing fees, not that they had obtained their green cards illegally.[2] Trooper Kiefer misunderstood from plaintiffs' answers that the green cards were forged because green cards are not available for purchase.

Rather than return the green cards, Trooper Kiefer retained them for authentication. He did not issue plaintiffs a receipt for their green cards, tell them when they could expect them back if the cards were indeed authentic, or tell them where or how to inquire if they had any questions about the seizure.
On Monday, the day following the seizure of the documents, paralegal Arturo Ortiz contacted the OSHP on behalf of Aguilar and Esparza, but the OSHP could not help him because Ortiz lacked certain information regarding the incident. On Thursday, four days after the seizure, Ortiz obtained this required information from Aguilar and Esparza. He then contacted the OSHP and spoke to Trooper Kiefer. Trooper Kiefer delivered the green cards later that same day.
In my September 8, 1999 Order, I granted plaintiffs' motion for summary judgment as to the issue of whether Trooper Kiefer violated the Fourth Amendment by retaining Aguilar's and Esparza's green cards for four days, and denied plaintiffs' motion for summary judgment as to all other issues and all other defendants. In addition, I granted summary judgment in favor of defendants Marshall, Davies, Healy, Elling, Elders, Blue, Ambrose, Baronowski, Courtney, Laubacher, Piatarek, Pape, Stevens, Unger, and Williams, and denied Trooper Kiefer's motion for summary judgment. Lastly, I dissolved the preliminary injunction I previously had granted. (Doc. 67).
Plaintiffs now move this Court to reconsider the dismissal of their equal protection, 42 U.S.C. § 1983 and Title VI claims.[3] In opposition, defendants raise two affirmative defenses, one based on standing and the other on the applicable statute of limitations.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
729 *729 In deciding the motion for summary judgment, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
DISCUSSION
I. Standing
Defendants argue that I should not enjoin the OSHP from asking motorists about their immigration status on the basis of their Hispanic appearance because Aguilar and Esparza, the class representatives, have no standing. According to defendants, Aguilar and Esparza lack standing to obtain equitable relief because they cannot show

that it is likely that they will be questioned about their immigration status and/or have their green cards seized again at some future time. Thus, defendants assert, regardless of the merits of plaintiffs' equal protection, § 1983 and Title VI claims, plaintiffs are not entitled to an injunction, either individually or on behalf of the class they seek to represent.[4]
Plaintiffs disagree, citing evidence that suggests that it is the OSHP's policy to ask Hispanic-looking motorists whether they have proper immigration papers. This, plaintiffs argue, proves that it is inevitable that some members of the class will be subject to ethnically discriminatory questioning, giving the class representatives standing by proxy. In any event, plaintiffs observe that I already made a ruling on standing in their favor. (See Docs. 67 and 94).
Those who seek to invoke the jurisdiction of the federal courts must satisfy Article III of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). An actual case or controversy is characterized by a "personal stake in the outcome" of a lawsuit; this requirement assures that constitutional issues will be presented only when ripe for resolution. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). "Abstract injury is not enough." City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). A plaintiff must show that "he has sustained or is immediately in danger of sustaining some direct injury" as a result of the challenged conduct; the injury or threat of injury must be "real and immediate," not "conjectural" or "hypothetical." Id. (citing Golden v. Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); United Public Workers of America v. Mitchell, 330 U.S. 75, 89-91, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923)). Further, the injury must be one that is "fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Kardules v. City of Columbus, 95 730 F.3d 1335, 1352 (6th Cir.1996) (quoting *730 Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).
Synthesizing these principles, the Supreme Court has articulated a three part test for a party to have standing to sue:
Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered `injury in fact' an 0907 invasion of a legally protected interest which is (a) concrete and particularized, and (b) `actual or imminent, not conjectural or hypothetical.' Second, there must be a causal connection between the injury and the conduct complained of0907the injury has to be `fairly trace[able] to the challenged action of the defendant, and not ... [t]he result [of] the independent action of some third party not before the court.' Third, it must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). The party invoking federal jurisdiction bears the burden of establishing its standing. Id. at 561, 112 S.Ct. 2130.
As plaintiffs rightfully point out, I previously determined that plaintiffs had carried their burden. (Docs. 67 and 94). Upon reconsideration, however, my decision on standing requires clarification and revision.
The Supreme Court recognizes that there is not much that separates the injury in fact element of Article III standing from the need to show "likelihood of substantial and immediate irreparable injury" as a prerequisite to obtaining an injunction. O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (the case or controversy elements under Article III "shade into those determining whether the complaint states a sound basis for equitable relief."). Given this overlap, courts (and parties) often combine Article III analysis and equitable relief analysis. But it is important to keep in mind that these are two distinct inquiries, and that it is possible to have standing to assert a claim for damages to redress past injury, while, at the same time, not have standing to enjoin the practice that gave rise to those damages. This may be so even if the practice is likely to continue. Lyons, 461 U.S. at 105, 103 S.Ct. 1660 (just because a plaintiff may have standing to obtain damages to remedy past harm "does nothing to establish a real and immediate threat that he again" would be harmed, which is a necessary precondition to having standing to seek an injunction).

Indeed, that is the irony of this case and cases like it. There can be little dispute that Aguilar and Esparza have standing to sue for damages on an equal protection theory because they allege they were asked about their immigration status on the basis of their Hispanic appearance, and, further, had their green cards seized. (See Doc. 67 at pp. 2-3). To have standing to enjoin such race-based treatment, however, these named plaintiffs must show that they are likely to be asked about their immigration status and/or have their green cards seized again at some time in the reasonably near future. Lyons, 461 U.S. at 111, 103 S.Ct. 1660 (absent a showing that the plaintiff would again be wronged in a similar way, the plaintiff had no standing to pursue an injunction). See also Ellis v. Dyson, 421 U.S. 426, 434, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975) (Article III required that plaintiffs show a "credible" and "genuine" threat that they again would be prosecuted under a challenged loitering law). While past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury, "[p]ast exposure to illegal conduct does not in itself show a ... case or controversy" sufficient to support an injunction. O'Shea, 414 U.S. at 495-96, 94 S.Ct. 669.

731 In light of the evidence propounded to date, I cannot find support for plaintiffs' *731 claim that Aguilar and Esparza likely will be stopped again, and again asked questions about their immigration status or have their green cards seized. Though Aguilar and Esparza both have relatives in Ohio, and represent that they expect to travel Ohio's highways in the future,[5] it is undisputed that during their past travels in Ohio, they only were stopped and questioned once. (See Amended Complaint at ¶ 8). They do not travel to or in Ohio on a regular basis because they reside in Chicago, Illinois. (Id. at ¶ 34).

Accepting as true plaintiffs' allegation that the OSHP systematically asks Hispanic-looking motorists about their immigration status, and, as a matter of course, seizes green cards, none of this can happen unless a Hispanic motorist is stopped. It is this contingent event that not only diminishes the chances that Aguilar and Esparza will be repeat victims of the practice they challenge, it also might explain why they each were victims on only one occasion in the past.[6]

The plaintiffs' claim of standing in this case is similar to that of the plaintiff in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In Lyons, the plaintiff sued the City of Los Angeles and certain of its police officers, alleging that in 1976 he was stopped for a traffic violation, and, though he offered no resistance, the officers who stopped him applied a choke-hold. As a consequence of the officers' use of a chokehold, the plaintiff alleged that he lost consciousness and suffered damage to his larynx. In addition to seeking damages, his complaint sought injunctive relief against the City of Los Angeles and its police department to bar the use of choke-holds except in situations where an arrestee reasonably appears to be threatening the use of deadly force. The district court entered the injunction, and the Ninth Circuit affirmed.

The Supreme Court vacated the injunction because the plaintiff did not have standing. Though the plaintiff had standing to assert a damages claim, he could not obtain an injunction because it was unlikely that he again would be subject to a choke-hold:

Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the choke-holds by police officers. ... That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation on his part.

* * * * * *

732

In order to establish an actual controversy in case, Lyons would have had not *732 only to allege

that he would have another encounter with the police but also to make the incredible assertion

either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen

to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2)

that the City ordered or authorized police officers to act in such manner.

Id. at 105-06, 103 S.Ct. 1660 (emphasis added).
To be sure, the facts of Lyons are distinguishable from those in this case, because here Aguilar and Esparza do allege that 1) officers of the OSHP systematically ask all Hispanic appearing motorists, who are stopped for routine traffic violations, whether they have proper immigration papers and/or confiscate those papers, and 2) the OSHP authorizes this practice. While important, these distinguishing allegations do not, however, show that Aguilar and Esparza will "have another encounter with the police." Id.
In Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999) (en banc), the named plaintiffs' inability to show that they would have another encounter with federal law enforcement officials prevented them from achieving standing to seek an injunction. Plaintiffs in Hodgers-Durgin were a class of Hispanic motorists who alleged they were stopped by the Border Patrol along the United States' border with Mexico on the basis of their Hispanic appearance. The class had two named plaintiffs. The first was a United States citizen living in Tucson, Arizona, who described himself as having typically Hispanic features: black hair, dark skin and dark eyes. He traveled two or three days a week on I-19 between Tucson and the border town of Nogales. Despite the fact that he saw agents of the Border Patrol every time he traveled I-19, he only had been stopped once in a ten year period.
The second named plaintiff was a United States citizen who had been living in Rio Rico, Arizona, since 1985. She testified that she had driven on I-19 from Rio Rico to Nogales a 0907 distance of approximately 15 miles at 0907 least four or five times a week, and that whenever she did she saw the Border Patrol. Though she regularly saw agents of the Border Patrol along I-19, she only had been stopped once in approximately ten years.
Both named plaintiffs sought an injunction to stop the Border Patrol from pulling over motorists who looked Hispanic. The district court denied the request for an injunction on standing grounds. Upholding the denial of the injunction, the Ninth Circuit, sitting en banc, agreed that neither named plaintiff could establish, based on having been stopped once, that he or she would be stopped in the future by the Border Patrol:
Based on plaintiffs' own factual record, we believe that it is not sufficiently likely that ... [named plaintiffs] will again be stopped by the Border Patrol.
* * * * * *
As the Supreme Court recently wrote, translating the language of injunctions and imminency into the language of declaratory judgments and ripeness, `A claim is not ripe for adjudication if it rests on `contingent future events that may not occur as anticipated, or indeed may not occur at all." Whether the named plaintiffs are likely to be stopped again by the Border Patrol is simply too speculative to warrant an equitable judicial remedy, including declaratory relief, that would require, or provide a basis for requiring, that the Border Patrol change its practices.
Id. at 1044 (citations omitted). In a concurrence, Judge Reinhardt added that "[i]n reality, all we hold in this case is that [the named plaintiffs] ... are not the right plaintiffs to have filed this class action," essentially inviting the substitution of new class representatives who had been stopped by the Border Patrol on multiple occasions. Id. at 733 1047. Cf. Wooley v. Maynard, 430 U.S. 705, 712, 97 S.Ct. 1428, *733 51 L.Ed.2d 752 (1977) (equitable relief was available where plaintiff had been prosecuted three times for obscuring "Live Free or Die" motto on his license plate in a span of five weeks); Kolender v. Lawson, 461 U.S. 352, 357 n. 3, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (plaintiff who had been stopped fifteen times had standing to challenge an anti-loitering statute as unconstitutionally vague because there was a "credible threat" that he might be detained again).
Plaintiffs here might have standing to obtain an injunction if they could either: 1) present evidence that Aguilar and Esparza have been stopped and asked about their immigration status with sufficient frequency to give rise to a belief that such inquiries will be made of them in the future, or 2) substitute new class representatives who have been stopped and questioned with greater frequency than they have. Absent satisfaction of either of these requirements, the current named plaintiffs, having been stopped but once, lack standing to seek equitable relief. [7]

Finally, it is not enough that the unnamed class members, as a group, almost certainly will be subject to the practice in question: the named plaintiffs themselves must show that they are likely to become repeat victims. Allee v. Medrano, 416 U.S. 802, 828-29, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974) ("A named plaintiff cannot acquire standing to sue by bringing his action on behalf of others who suffered injury which would have afforded them standing had they been named plaintiffs; .... Standing cannot be acquired through the back door of a class action."). See also Hodgers-Durgin, 199 F.3d at 1040 (quoting Lewis v. Casey, 518 U.S. 343, 357, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)) ("That a suit may be a class action ... adds nothing to the question of standing, for even named plaintiffs who represent a class `must alleged and show that they personally have been injured, not the injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'"). Thus, the prospect that unnamed class members are likely to be questioned about their immigration status (and have their green cards taken) cannot provide a basis for Aguilar and Esparza to seek an injunction.
In sum, I find that Aguilar and Esparza do not have standing to seek an injunction to prevent the OSHP from asking Hispanic-looking motorists about their immigration status and/or confiscating immigration papers.
II. Equal Protection
Plaintiffs allege that the OSHP routinely interrogates Hispanic motorists about their immigration status, and, in some cases, confiscates immigration documents, solely on the basis of race or national origin. Such practice, 734 plaintiffs argue, violates the Equal Protection Clause of the *734 Fourteenth Amendment, notwithstanding my previous ruling on searches and seizures under the Fourth Amendment. Defendants respond that plaintiffs have failed to prove facts that would support their claims, and deny treating Hispanic motorists differently than motorists of any other race or ethnicity.
Citizens are entitled to equal protection of the laws at all times. Central to the notion of equal protection is "the prevention of official conduct discriminating on the basis of race." Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Law enforcement is quintessentially official conduct0907the police function being "one of the basic functions of government." Foley v. Connelie, 435 U.S. 291, 297, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978). "If law enforcement adopts a policy, employs a practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred." United States v. Avery, 137 F.3d 343, 355 (6th Cir.1997). See also United States v. Taylor, 956 F.2d 572, 578 (6th Cir.1992) ("[A] general practice or pattern that primarily targeted minorities" would give rise to "due process and equal protection constitutional implications cognizable by this court."); United States v. Jennings, 985 F.2d 562, 1993 WL 5927, at *4 (6th Cir. Jan.13, 1993) (unpublished opinion) ("A law enforcement officer would be acting unconstitutionally were he to ... consensually interview a person of color solely because of that person's color, absent a compelling justification.").
"A person cannot become the target of a police investigation solely on the basis of skin color." Avery, 137 F.3d at 354. Accordingly, the Fourteenth Amendment provides citizens a degree of protection independent of the Fourth Amendment's prohibition against unreasonable searches and seizures. Id. at 352.
To prevail under the Equal Protection Clause, the victim of discrimination "must prove the decision makers in his case acted with discriminatory purpose." McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). "Determining whether invidious discriminatory purpose was a motivating factor" behind a law enforcement officer's actions "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). See also Avery, 137 F.3d at 355 ("Often, it is difficult to prove directly the invidious use of race ... Accordingly, discrimination can be proved through direct evidence, which seldom exists, or inferences ... drawn from ... circumstantial evidence.").
The burden rests on plaintiffs to show, by a preponderance of the evidence, that they were treated differently than similarly situated non-minorities. Jennings, 985 F.2d 562, 1993 WL at *4. Once such a prima facie case is made, the burden shifts to defendants to either 1) rebut the presumption of unconstitutional action by articulating a race-

neutral reason for its action, or 2) identify a compelling government interest for its race-based conduct. Id. (citing Arlington Heights, 429 U.S. at 270-71 n. 20, 97 S.Ct. 555). See also Avery, 137 F.3d at 356 ("Once a prima facie case is established ..., the government must articulate a race-neutral reason for its action, or identify a compelling governmental interest in the race-based interviews.").
Because I find that plaintiffs have satisfied their prima facie burden, and because defendants' rebuttal is insufficient as a matter of law, plaintiffs' motion for reconsideration is well taken.
A. Plaintiffs' Prima Facie Evidence
Plaintiffs cite evidence which, they allege, indicates a pattern and practice of questioning Hispanic motorists on 735 the basis *735 of their appearance. Plaintiffs highlight the testimony of Lieutenant William D. Healy, a twenty-two
year veteran of the OSHP. Since June 1992, Lt. Healy has served as the coordinator of the TDIT. In that position, Lt. Healy has been responsible for providing guidance, direction, supervision, and training for all TDIT officers. Lt. Healy's duties include monitoring the quality of the TDIT. (Healy Dep. at 18).
Beginning in 1995, the OSHP0907particularly its TDIT unit 0907began taking a more active role in the enforcement of federal immigration laws. According to Lt. Healy, after determining that an individual may be an illegal immigrant, a member of the OSHP will contact the Border Patrol and detain the suspect until the Border Patrol arrives. (Id. at 23). By Lt. Healy's admission, the OSHP has detained hundreds of motorists who were suspected to be illegally in the United States following routine traffic stops; such detention, in all likelihood, was precipitated by answers given to questions regarding the motorists' immigration status. (Id. at 20).
Lt. Healy acknowledged that the OSHP has been known to inquire into motorists' immigration status during routine traffic stops. According to Lt. Healy, a driver might be asked about his immigration status because an officer would "like to know whether or not you have a legal right to be here...." (Healy Dep. at 51). Lt. Healy approved of officers inspecting immigration documents, stating that "I would have no problem with a Trooper asking to see the alien registration card ... it's a consensual encounter." (Id. at 60).
Lt. Healy further testified that he is aware of officers seizing alien registration cards, some of which were later determined to be legitimate. (Id. at 32). Although such seizures are "not a common occurrence," Lt. Healy admitted that the OSHP has, in fact, seized legitimate immigration documents and delivered those documents to federal authorities. (Id. at 32, 70). Lt. Healy indicated during his testimony that there are no plans for the TDIT, which he runs, to change its policies. (Id. at 114-16).
Members of the OSHP receive little or no training in the area of federal immigration law. Lt. Healy testified that he once arranged for the TDIT to sponsor a training session on the identification of fraudulent immigration documents. (Id. at 12-15, 34). Only TDIT officers participated in this training. (Id. at 14). The two-hour session did not, however, address substantive issues related to immigration. (Hrg. at 288-90).
Because only one training session of this sort has been held, no TDIT officer joining the OSHP after April 1993 has received any formal training in the identification of fraudulent immigration documents, let alone in the assessment of what articulable facts would suggest that a motorist is an illegal immigrant. (Healy Dep. at 55, 96-97, 101-04; Hrg. at 290). Indeed, Lt. Healy himself testified that he does not know how to tell if a motorist is an alien, having not the "foggiest idea" what an alien might look like. (Healy Dep. at 30-31).
Given defendants' admitted lack of training in the identification of illegal immigrants, the only reasoned basis on which to question a motorist about immigration status, plaintiffs argue, is the motorist's Hispanic appearance coupled with indicators of Hispanic ethnicity, such as 1) inability to speak English, or 2) appearing to be a migrant worker.
Plaintiffs point out that Sergeant Bruce Elling (a supervisor in the TDIT) testified that the vast majority of green cards examined and seized by the TDIT belonged to Hispanic motorists; in fact, Sgt. Elling was not aware of any green cards being seized from non-Hispanics. (Elling Dep at 68; see also Stockman Dep. at 44-45; Kiefer Dep. at 77; Smart Dep at 64). According to William Mitchell, the supervisor of all Border Patrol personnel working in

736 northwestern Ohio, more than 90 percent *736 of the OSHP's immigration inquiries "concern[ed] Hispanics." (Mitchell Dec. at 2).
Moreover, the TDIT provides officers with a list of immigration related questions in English along with their Spanish translations, but there is no evidence that such translations are provided in any other languages. (Baranowski Dep. at 72-73). Some deposed officers testified that they were under the impression that one must speak English to be a United States citizen. According to Sgt. Elling: "I mean, if [motorists] don't speak [English] at all, I mean that's definitely an indicator of something amiss because you have to speak English to become an American citizen." (Elling Dep. at 35, 60-61). Lt. Barry Elder echoed Sgt. Elling's sentiments, testifying that one must speak English to be a citizen of the United States and/or a permanent resident alien. (Elder Dep. at 67). Trooper Smart similarly thought that fluency in English was a prerequisite to obtaining citizenship. (Smart Dep. at). And Trooper Kiefer testified that if he has a hard time understanding what drivers or passengers are saying or if they have a hard time understanding him, he will ask for a green card. (Kiefer Dep. at 39, 60-61, 172-74).
In addition, Lt. Elder testified he became suspicious that a motorist was an illegal alien if the motorist was going to pick crops, was coming from Florida or Texas, had little money, was driving an older vehicle, and/or was wearing old clothes. (Elder Dep. at 49-53). Plaintiffs argue that this describes the typical migrant worker, who in almost every case is of Hispanic descent. Further, plaintiffs argue that these are precisely the factors courts have disfavored as giving rise to an inference that a motorist is illegally in the country. See Ramirez v. Webb, 599 F.Supp. 1278, 1283 (W.D.Mich.1984) (a motorist's ethnic appearance, the condition of his car, the manner in which he dresses, and the presence of out-of-state plates on his car "cannot justify the subjugation of individual rights.").
Plaintiffs also cite the testimony of Trooper Kiefer, who testified that when he found Hispanic passengers hiding under a blanket, he called the Border Patrol, but that if he found white people hiding under a blanket, he would not. (Kiefer Dep. at 83). Sgt. Elling likewise testified that he would not call the Border Patrol regarding a motorist "unless [he] would think that they would probably be Hispanic in nature." (Elling Dep. at 33-34). And Trooper Pahl admitted that she once had contacted the Border Patrol after coming across two Hispanic men whose car had broken down, but that she wouldn't do the same for a white man. (Pahl Dep. at 37).
To further illustrate what they believe to be the OSHP's race-based investigatory tactics, plaintiffs have introduced a videotape (with audio) showing the stop of a Hispanic motorist, Heriberto Navarro, and his two Hispanic passengers. Navarro was pulled over for driving slightly above the speed limit. The videotape shows Navarro, who speaks accented English, conversing with Trooper Kiefer after Trooper Kiefer approached the passenger's side of the stopped car. Next, Navarro and his passengers provided their California driver's licenses to Trooper Kiefer on his request to see photo identification. Trooper Kiefer then questioned Navarro about his destination. Navarro answered by stating that he was driving to Michigan for vacation. Trooper Kiefer informed Navarro that he was going to let him off for the speeding violation, but that he first had to run the licenses through a police computer. At this point, Trooper Kiefer walked away from Navarro's car toward his patrol car. After two or three steps, however, Trooper Kiefer turned back to ask Navarro where he was born and whether he and his passengers were in possession of permanent resident alien cards.
Plaintiffs believe the videotape demonstrates that Navarro and his companions were questioned about their 737 immigration *737 status solely on the basis of their Hispanic appearance, because nothing about their conduct
suggested that they were in the country illegally; indeed, Trooper Kiefer had been prepared to release Navarro so long as Navarro's license cleared.
Defendants counter that while plaintiffs' evidence shows that in some cases Hispanic motorists have been asked about their immigration status, no evidence presented thus far indicates that Hispanic motorists are treated differently than non-Hispanic motorists. This, defendants emphasize, is the key equal protection issue, given that I already have decided that it is legitimate for officers, under the Fourth Amendment, to question motorists about their immigration status during the time it takes to complete a lawful traffic stop. (Doc. 109 at 4). In other words, defendants argue that unless plaintiffs have evidence showing that Aguilar and Esparza were singled out, the mere fact that Hispanic motorists have been subject to questions regarding their immigration status does not prove an equal protection violation.

Defendants' theory does not fit the facts of this case. Plaintiffs have introduced direct evidence that Hispanic motorists are treated differently than white motorists. Trooper Kiefer, Sgt. Elling, and Trooper Pahl all testified that, in their experience, they would refer Hispanic motorists to the Border Patrol when, in precisely the same circumstances, they would not refer someone who was white (i.e., not of Hispanic appearance).
Moreover, inferential evidence of a discriminatory practice is more than enough. See Avery, 137 F.3d at 355 ("`Necessarily, an invidious discriminatory purpose may often be inferred from the totality of relevant facts ....'") (quoting Washington, 426 U.S. at 242, 96 S.Ct. 2040). Here, such inferential evidence abounds. Almost all motorists whose green cards were seized were Hispanic. It would not be illogical to conclude from this, together with other evidence presented by plaintiffs, that most motorists (including Aguilar and Esparza) asked about their green cards were Hispanic-looking. Further, defendants' lack of training in the area of immigration law, and their seeming inability to articulate what might give rise to a reasonable suspicion that a motorist is illegally in the country, make it highly plausible that racial stereotyping influences the kinds of questions an officer chooses to ask during a traffic stop. This is particularly true where so many officers are misinformed about the language skills required for citizenship, and many of the migrant workers subjected to questioning have difficulty speaking English.
Finally, the circumstances surrounding the stop of Aguilar and Esparza help establish plaintiffs' prima facie case. Defendants argue that the seizure of Aguilar's and Esparza's immigration documents can be explained by the "alert" of a drugsniffing dog immediately before their documents were taken from them. But the potential presence of drugs in a motorist's car says nothing about the likelihood that the motorist is an illegal immigrant. Defendants admit as much. Lt. Healy testified that there is no correlation between the possession of drugs and being illegally in the country, a view shared by other OSHP officers. (Healy Dep. at 106; see also Baranowski Dep. at 105-06; Elling Dep. at 25; Laubacher Dep. at 70). If there is no such correlation, the alert cannot justify questions about immigration. Yet, beyond the dog alert, defendants have articulated no reason why Aguilar and Esparza were asked for their green cards.
In sum, I find that plaintiffs have satisfied their prima facie burden that the OSHP discriminates against Hispanic motorists in its immigration questioning, and, more specifically, have demonstrated that Trooper Kiefer deprived Aguilar and Esparza of their equal protection rights.
B. Defendants' Rebuttal
To rebut plaintiffs' prima facie case, defendants must 1) articulate a race-neutral reason for their action, or 2) 738 identify a *738 compelling government interest for their race-based conduct. Avery, 137 F.3d at 356. Defendants
have done neither.
No defendant has explained what race-neutral criteria are used to determine whether a motorist should be asked to produce immigration documents. While defendants deny taking action based on the race or national origin of an individual, more than a disavowal of discriminatory conduct is required. Defendants are obligated to articulate the race-neutral, precipitating factors behind questions relating to a motorist's immigration status. They have not done so.
In the alternative, defendants have the option of providing a compelling government interest for acknowledged race-based conduct. Defendants, however, have shied away from this option, steadfastly maintaining that their actions are not race-based.
In sum, defendants have failed to satisfy their rebuttal burden. Aguilar and Esparza, to the extent they can satisfy the requirements of § 1983 and Title VI, are entitled to summary judgment on their equal protection claims.
III. 42 U.S.C. § 1983
There are numerous individual defendants in this case.[8] Section 1983 requires Aguilar and Esparza (as class representatives) to establish a causal connection between their injuries and each defendant's conduct. Absent

such link, no liability may attach, despite defendants' collective inability to rebut plaintiffs' evidence of discrimination. Horn v. Madison County Fiscal Court, 22 F.3d 653, 659 (6th Cir.1994) (citing Doe v. Sullivan County, Tennessee, 956 F.2d 545, 550 (6th Cir.1992)) ("A violation of a federally secured right is remediable in damages only upon proof that the violation proximately caused injury.").
Further, defendants are sued in varying capacities: some are sued as officials while others are sued as individuals. And some are sued for active participation in the stop of Aguilar and Esparza while others are sued because they exercised supervisory authority. Depending on the capacity in which a defendant is sued, different immunity rules apply. Issues of causation and immunity, moreover, often intertwine in § 1983 analysis.
To establish a claim under § 1983, a plaintiff must prove: 1) that conduct was committed by a defendant acting under the color of state law, and 2) the defendant's conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or the laws of the United States. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Sargi v. Kent City Board of Educ., 70 F.3d 907, 913 (6th Cir.1995). It is axiomatic that equal protection falls within the ambit of "rights, privileges, or immunities" § 1983 was designed to preserve. See, e.g., French v. Heyne, 547 F.2d 994, 997 (7th Cir.1976) ("Redress for denial of equal protection is available under § 1983.").
The following subsections consider plaintiffs' evidence of causation with respect to each defendant, and determine whether any defendants are entitled to immunity.
1. Trooper Kiefer: Sued In His Individual Capacity
Trooper Kiefer physically participated in the questioning of Aguilar and Esparza, and he confiscated their green cards. Plaintiffs seek to hold him personally liable. Trooper Kiefer claims qualified immunity.
When public officials are sued for damages under § 1983 in their individual capacities, they can assert qualified 739 immunity. Stack v. Killian, 96 F.3d 159, 161 (6th Cir.1996). Officials are entitled to *739 qualified immunity so long
as their conduct does not violate clearly established statutory or constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Christophel v. Kukulinsky, 61 F.3d 479, 484 (6th Cir. 1995) . "The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Whether an official protected by qualified immunity may be held personally liable turns on the "objective legal reasonableness" of his acts. Johnson v. Estate of Laccheo, 935 F.2d 109, 111 (6th Cir.1991).
A court evaluating a claim of qualified immunity "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). "Deciding the constitutional question before addressing the qualified immunity question promotes clarity in the legal standards for official conduct, to the benefit of both officers and the general public." Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999).
Here, there can be no dispute that Trooper Kiefer should have understood, in 1995, that questioning motorists about their immigration status on the basis of their race or ethnicity was unconstitutional. For well over 100 years, a bedrock principal of our constitutional democracy has been that people should be treated equally under the law, and that government actors cannot treat individuals differently bases on their ethnic background. Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Accordingly, the Sixth Circuit has admonished the police not to "unevenly apply the laws against a citizen because of his race...." Gardenhire v. Schubert, 205 F.3d 303, 320 (6th Cir.2000). Indeed, the Gardenhire court held that by 1996 it had long been "clearly established that police officers could not selectively enforce ... [the] laws based on racial distinctions." Id. The same can be said for 1995, when Aguilar and Esparza were stopped. Thus, Trooper Kiefer has no immunity from suit.
Further, Trooper Kiefer's conduct clearly resulted in the injuries claimed by Aguilar and Esparza, supporting a causal connection.

In sum, plaintiffs' motion for summary judgment on 0907 Aguilar's and Esparza's § 1983 claims that they were deprived of their equal protection rights0907shall be granted as to Trooper Kiefer.
2. Defendants Marshall, Healy, Elling And Elders: Sued In Their Official Capacities
Plaintiffs sued defendants Marshall, Healy, Elling and Elders in their official capacities to obtain an injunction. ( See Amended Complaint at ¶¶ 18, 20-22). As previously discussed, however, Aguilar and Esparza do not have standing to obtain injunctive relief. Thus, plaintiffs' claims against defendants Marshall, Healy, Elling and Elders in their official capacities shall be dismissed.
3. Defendants Marshall, Davies, Healy, Elling And Elders: Sued As Supervisors In Their Individual Capacities
Although Aguilar and Esparza do not claim that Marshall, Davies, Healy, Elling and Elders participated in their stop, plaintiffs seek to impose liability on them personally as the supervisors of Trooper Kiefer, who was involved. Supervisory officials may not be found vicariously liable for the actions of their subordinates under § 1983. Monell v. Department of Social Services, 436 U.S. 658, 691-694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 740 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). To *740 hold a supervisor liable, a plaintiff must demonstrate that the supervisor "either encouraged the specific incident of misconduct or in some other way directly participated in it." Sova v. City of Mt. Pleasant, 142 F.3d 898, 904 (6th Cir. 1998); Swales v. Township of Ravenna, 989 F.Supp. 925, 938 (N.D.Ohio 1997). Thus, at minimum, plaintiffs in this case must show that Marshall, Davies, Healy, Elling and Elders "implicitly authorized, approved or knowingly acquiesced" in the deprivation of Aguilar's and Esparza's constitutional rights. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.1984); Hays v. Jefferson County, Kentucky, 668 F.2d 869, 874 (6th Cir.1982). This ensures that supervisors sought to be held accountable actually "caused" the deprivation at issue. Doe v. Claiborne County, Tennessee, 103 F.3d 495, 511 (6th Cir. 1996).
Further, when the allegation is that a supervisor improperly trained a subordinate, the supervisor may be liable only where his failure to train evinces "deliberate indifference" to the public. Sova, 142 F.3d at 904 (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
Here, plaintiffs argue that the discriminatory treatment of Hispanic motorists was wide-spread within the OSHP. That such an atmosphere developed under the supervision of Marshall, Davies, Healy, Elling and Elders reflects, in plaintiffs' view, that they authorized, approved or knowingly acquiesced in race-based immigration questioning. Plaintiffs submit that Trooper Kiefer adopted investigatory tactics that he and his fellow patrolmen learned from more experienced officers, including their supervisors. It is improbable, plaintiffs claim, that Trooper Kiefer's actions did not comport with the OSHP's general practices. Rather, it is more likely that Trooper Kiefer simply was doing what his supervisors' implicitly sanctioned.
More generally, plaintiffs allege that defendants Marshall, Davies, Healy, Elling and Elders cannot distance themselves from Trooper Kiefer when they did practically nothing to train him in how to identify illegal immigrants in a race-neutral manner. Plaintiffs contend that these supervisors directed the OSHP's rank and file to enforce federal immigration laws more aggressively, without avoiding, through training, the likelihood that racial bias would influence their decisions in the field. In plaintiffs' view, this set the stage for Trooper Kiefer's handling of the stop of Aguilar and Esparza.[9]
Defendants respond by adducing evidence that Marshall, Davies, Healy, Elling and Elders did not participate, 741 directly, in *741 Aguilar's and Esparza's stop, and therefore could not have authorized or approved of it. (Docs. 84
and 93).

I find there to be a genuine factual dispute whether Marshall, Davies, Healy, Elling and Elders "implicitly authorized, approved or knowingly acquiesced" in the deprivation of Aguilar's and Esparza's constitutional rights. There is sufficient evidence to suggest that, at all supervisory levels of the OSHP, patrolmen (including Trooper Kiefer) were encouraged to ask Hispanic motorists about their immigration status. However, this evidence is not enough to support summary judgment in plaintiffs' favor. Therefore, this issue shall be left for a jury to resolve, and the parties' respective motions for summary judgment shall be denied.[10]
4. Troopers Ambrose, Blue, Baranowski, Courtney, Laubacher, Piatarek, Pape, Stevens, Unger and Williams: Sued In Their Individual Capacities
Plaintiffs have sued Troopers Ambrose, Blue, Baranowski, Courtney, Laubacher, Piatarek, Pape, Stevens, Unger and Williams in their individual capacities. None of these Troopers, however, participated in Trooper Kiefer's stop of Aguilar and Esparza, and plaintiffs do not allege that these Troopers exercised supervisory responsibility. That they may have interrogated unnamed class members on race-based grounds does not establish a causal link to Aguilar and Esparza. Therefore, plaintiffs' § 1983 claims of deprivation of equal protection shall be dismissed as to Troopers Ambrose, Blue, Baranowski, Courtney, Laubacher, Piatarek, Pape, Stevens, Unger and Williams.
IV. Title VI
Plaintiffs allege that the OSHP has engaged in a pattern and practice of questioning Hispanic-looking motorists on the basis of their Hispanic appearance in violation of Title VI of the Civil Rights Act of 1964. 42 U.S.C. § 2000d, et seq. Title VI provides:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Id.
The Supreme Court has noted that Congress "understood Title VI as authorizing an implied private right of action for victims of the prohibited discrimination." Cannon v. University of Chicago, 441 U.S. 677, 703, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). "The proper defendant in a Title VI case is an entity rather than an individual." Farmer v. Ramsay, 41 F.Supp.2d 587, 592 (D.Md.1999) (citing Jackson v. Katy Independent School District, 951 F.Supp. 1293 (S.D.Tex.1996)). See also Buchanan v. City of Bolivar, Tennessee, 99 F.3d 1352, 1356 (6th Cir. 1996) ("Plaintiff's claim ... fails because she asserts her claim against Lawson and Weaver and not against the school, the entity allegedly receiving financial assistance."). To maintain a private right of action under Title VI, a plaintiff must prove that he was victimized by a "program or activity" that received federal funds. Buchanan, 99 F.3d at 1356. There must be a nexus between the alleged discriminatory conduct and the specific program to which federal funds were directed. David K. v. Lane, 839 F.2d 1265, 1275-76 (7th Cir.1988). See also 42 U.S.C. § 2000d-1 ("Compliance with any requirement pursuant to [Title VI] ... shall be limited in its effect to the particular program, or part thereof, in which ... non-compliance has been so found.").
742 *742 A "program or activity" is defined as "all the operations of" a "department, agency, ... or other instrumentality of a State or of a local government." 42 U.S.C. § 2000d-4a(1)(A). The immunity conferred upon the states by the Eleventh Amendment does not apply to violations of Title VI. Id. at § 2000d-7(1); Franks v. Kentucky School for the Deaf, 142 F.3d 360, 362-63 (6th Cir.1998).
Some courts have found that "Congress did not intend to extend protection under Title VI to any person other than an intended beneficiary of federal financial assistance." Simpson v. Reynolds Metals Co., Inc., 629 F.2d 1226, 1235 (7th Cir.1980). See also Scelsa v. City University of New York, 806 F.Supp. 1126, 1140 (S.D.N.Y.1992) ("[T]o establish standing to sue under ... [Title VI] plaintiffs must be the intended beneficiaries of

the federal spending program."). This interpretation reads Title VI too narrowly. By its plain language, Title VI affords protection to persons "subjected to discrimination under any program or activity" receiving federal funds. Thus, even if Aguilar and Esparza were not the intended beneficiaries of money flowing to the OSHP (as employees, for instance), they nevertheless can bring a Title VI claim on the grounds that the OSHP qualifies as a "program or activity" that allegedly subjected them to discrimination.[11]
The issue, then, is how the OSHP spends its federal funds.[12] Use of funds is critical because there must be some connection between the plaintiffs' unequal treatment and the federal funds received by the OSHP. David K. v. Lane, 839 F.2d at 1275-76.
Plaintiffs have presented evidence that the OSHP receives substantial federal funding. In fiscal years 1995, 1996, and 1997, the OSHP received over $5.6 million from the federal government. (See Defendants' Response to Interr. 3). Moreover, Lt. Healy testified that during 1992 and 1993, the TDIT received a $100,000 federal grant, which was used for overtime pay and to purchase equipment. (Healy Dep. at 5-7). Other than this $100,000 grant, however, Lt. Healy does not believe the TDIT has received any federal money. Id. Plaintiffs have not introduced any evidence beyond the testimony of Lt. Healy regarding federal funding to the TDIT.
A single $100,000 grant to the TDIT, which was spent in 1992 and 1993, is not enough to establish that the TDIT was a federally funded "program or activity" in 1995, when Aguilar and Esparza were stopped and had their green cards seized. Further, though the TDIT is a unit of the OSHP, plaintiffs have offered no proof that the TDIT is one of the specific programs to which the OSHP channeled its federal money. David K., 839 F.2d at 1275-76. The only evidence of distribution comes from the National Highway Transportation Safety Board, which indicates that the OSHP relied on assistance from the federal government to pay for overtime hours spent targeting crashcausing violations (such as speeding and driving under the influence of alcohol) and enforcing commercial vehicle regulations. (See Defendants' Response to Interr. 3).
There is no evidence that these funds were allocated to the TDIT. David K., 839 F.2d at 1275-76 (plaintiffs' broad 743 assumption that an entire prison system benefits *743 when one of its programs receives federal funds0907thereby
causing the entire prison system to be subject to Title VI regulation 0907was not supported absent proof of such benefit). In fact, defendants have propounded evidence that the TDIT is (and always has been) funded out of Ohio's general operating budget, which, in turn, raises money through gas taxes. Plaintiffs have not rebutted this contention.
Thus, Aguilar and Esparza can prevail on their Title VI claims only by demonstrating some nexus between 1) the $5.6 million used by the OSHP on overtime pay to reduce crash-causing violations and regulate commercial vehicles, and 2) their stop on March 26, 1995. Id. Plaintiffs argue that such a nexus exists. I disagree.
Of course, there are many fathomable reasons why the availability of federal funds for overtime pay might redound to the benefit of all law enforcement activities, even if the primary purpose of having officers work overtime (as in this case) is to address specific concerns, such as automobile crashes and commercial vehicle regulation. One could speculate that the more money the OSHP has for overtime the more OSHP officers will be patrolling Ohio's highways. Thus, federal money dedicated to overtime conceivably could result in an increase in the number of traffic stops that would have occurred without federal assistance. From this postulation, plaintiffs conclude that federal funding earmarked for overtime pay has impacted the number of Hispanic motorists questioned about their immigration status by the OSHP, including Aguilar and Esparza.
Plaintiffs' argument, however, is conjectural. There is no evidence of how the OSHP used its federal money to target crash causing violations and/or regulate commercial vehicles. The record contains no evidence that the OSHP used federal funds to increase the number of officers on routine patrol. Moreover, there is no evidence that the $5.6 million had any residual effect on the enforcement of federal immigration laws. Particularly, plaintiffs have failed to show that Trooper Kiefer's stop of Aguilar and Esparza was made possible, in whole or in part, by federal funding.
In sum, there is insufficient support for the claim of a nexus between the OSHP's federal funding and any equal protection violation. Plaintiffs' motion for summary judgment on its Title VI claims, therefore, shall be denied as to the OSHP.[13]

V. Statute Of Limitations
Defendants argue that the two year statute of limitations on civil rights actions bars the claims of Aguilar and Esparza. (Doc. 120 at 4-5). According to defendants, the statute of limitations began running on March 26, 1995, the date Trooper Kiefer stopped Aguilar and Esparza. Plaintiffs filed their class action suit on September 18, 1996, but Aguilar and Esparza were not added as named plaintiffs until June 1997. Thus, defendants argue, Aguilar and Esparza asserted their claims two months too late.
"The commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class." Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983) (citing American Pipe & Const. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974)). Once the statute of limitations has been tolled, it remains tolled for all putative class members until certification is resolved. Id.
In light of Parker, the two year statute of limitations was suspended for Aguilar and Esparza (and all other class 744 members) *744 as of September 18, 19960907eighteen months after Aguilar and Esparza were stopped.
Accordingly, defendants' statute of limitations argument has no merit.
CONCLUSION
For the foregoing reasons, on reconsideration of my September 8, 1999 Order, it is hereby
ORDERED THAT
1) Plaintiffs' motion for summary judgment on their § 1983 claims against Trooper Kiefer is granted;
2) Plaintiffs' motion for summary judgment on their § 1983 claims against defendants Marshall, Healy, Elling and Elders (in their official capacities) is denied;
3) Plaintiffs' motion for summary judgment on their § 1983 claims against defendants Marshall, Davies, Healy, Elling and Elders (as supervisors in their individual capacities) is denied; and
4) Plaintiffs' motion for summary judgment on their Title VI claims is denied.
So ordered.
[1] It later was determined that the dog had alerted in error, and that neither Aguilar nor Esparza were carrying drugs.
[2] It is undisputed that Esparza and Aguilar have difficulty communicating in English and the exchange with Trooper Kiefer took place in English.
[3] Plaintiffs correctly point out that my September 8, 1999 Order does not address these issues, which were raised in their original motion for summary judgment. (Doc. 77). Thereafter, the parties' subsequent briefs focused exclusively on the Fourth Amendment, as did my September 8, 1999 Order.
[4] Plaintiffs filed a class action complaint, which later was amended. (Doc. 44). Aguilar and Esparza were added as class representatives in the amended complaint. (Id. at ¶ 8). On May 15, 1998, plaintiffs moved to have the class certified pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. (Doc. 78). Plaintiffs proposed that the class be defined as "all current and future Hispanic motorists and/or passengers traveling in Ohio, who are involved in traffic stops by officers, agents or employees of the Ohio State Highway Patrol, and are questioned about immigration matters, or suffer the seizure of their lawfully issued immigration documents." (Id. at 3). In my August 17, 1998 Order, I certified the class as proposed by plaintiffs. (Doc. 94).

[5] Aguilar and Esparza attested in affidavits that they visit relatives in Toledo, Ohio, approximately 3-4 times per year.
[6] Aguilar's and Esparza's standing with regard to future stops is weakened further by the fact that their stop on March 26, 1995 was lawful. In fact, no stop of any plaintiff in this case has been shown to have occurred without antecedent observation of a traffic violation, and, significantly, there has been no evidence of racial profiling in the initial stopping of Hispanic motorists. Thus, Aguilar and Esparza cannot prove imminency of future injury unless they assert that they will again commit traffic violations for which they expect to be stopped. Where a party can prevent all risk of constitutional injury by controlling his conduct (without sacrificing any of his rights, privileges, or immunities), his claim of standing, which is predicated on a future unlawful act on his part, is of dubious legitimacy. See, e.g., O'Shea, 414 U.S. at 497, 94 S.Ct. 669 ("[I]t seems to us that attempting to anticipate whether and when these respondents will be charged with a crime ... takes us into the area of speculation and conjecture.... We assume that respondents will conduct their activities within the law and so avoid ... exposure to the challenged course of conduct....").
[7] There is one named plaintiff, Merced Valdez, a United States citizen and resident of Ohio, who alleges three instances where he was stopped and questioned about his immigration status. Because he was stopped three times, Valdez is able to make a strong argument that he likely will be stopped again in the future. Valdez, however, has a different standing problem, as I detailed in my June 24, 1997 Order: he is unable to trace the times he was stopped and questioned to the OSHP. (See Doc. 31 at 7). During cross examination at an evidentiary hearing held November 21-22, 1996, (Docs. 26-27 [Hrg.]), Valdez testified that the first time he was stopped and asked to produce documentation of citizenship, an officer of the Defiance, Ohio police department0907not the OSHP0907conducted the stop. (Hrg. at 175). As to the other two times he was stopped, the OSHP has no record of this, though the OSHP consistently keeps such records. Meanwhile, traffic records do indicate that non-OSHP agencies had made inquiries of Valdez's immigration status, suggesting that Valdez was confusing the actions of municipal and other local law enforcement agents with agents of the OSHP. (Hrg. at 245-250; Doc. 31 at 13). Thus, I determined that the evidence was too uncertain to grant Valdez standing. (Id.). No new evidence has been developed since 1997, to my knowledge, that would cause me to rethink my position.
[8] On June 15, 1998, the OSHP filed a motion for summary judgment, requesting that the § 1983 claims against it be dismissed. Plaintiffs did not oppose this motion. (Doc. 89 at 2).
[9] Specifically, plaintiffs allege that Kenneth Marshall acted as the Superintendent of the OSHP during a time when Policy 9-902.08 was being enforced. Policy 9-902.08 provided guidelines for "handling suspected illegal aliens." (See Plaintiffs' Ex. 1). According to plaintiffs, Policy 9-902.08 spurred the stepped-up enforcement of federal immigration laws in Ohio. Colonel Davies also was a Superintendent while Policy 9-902.08 was in effect.
Plaintiffs allege that Lt. Healy was one of the architects of the OSHP's immigration enforcement policies, and that he approved of officers inquiring into a motorists' immigration status. Lt. Healy organized the single training session on immigration for members of the TDIT unit, during which he taught officers how to identify forged green cards; Lt. Healy admitted, however, that he himself had no idea how to recognize an illegal immigrant. Plaintiffs further allege that Lt. Healy was informed that Aguilar and Esparza had had their green cards taken from them, yet defended Trooper Kiefer's actions and refused to address Aguilar's and Esparza's complaints.
Plaintiffs allege that Sgt. Elling was a supervisor in the TDIT unit, and that he helped determine the OSHP's immigration policies. Plaintiffs also allege that Sgt. Elling, after being told of the incident involving Aguilar and Esparza, did nothing to prevent officers from confiscating and destroying green cards in the future.
Finally, plaintiffs allege that Lt. Elder headed a post of the Ohio Turnpike between Exits 3 and 3A south of Toledo, Ohio, where he assisted in the enforcement of federal immigration laws.
[10] If the jury imposes supervisory liability, no defendant would be protected by qualified immunity for the same reasons that deprive Trooper Kiefer of his claim of qualified immunity.
[11] Further, 28 C.F.R. § 42.104(b), promulgated under Title VI, provides that a federally funded program or activity cannot provide any "disposition ... to an individual which is different, or is provided in a different manner"

based on that individual's race, color or national original. "Disposition" is defined as any "treatment, handling, decision, sentencing, confinement, or other prescription of conduct." Id. at § 42.102(j). Clearly, the process of questioning motorists about their immigration status constitutes a "disposition" within the meaning of Title VI.
[12] As already discussed, plaintiffs have made out a prima facie case of unequal protection against the OSHP, which has gone unrebutted. (See Section II, supra., at 16-22).
[13] Because Title VI claims only can be brought against entities, not individuals, plaintiffs' Title VI claims shall be dismissed as to all individual defendants (i.e., defendants Marshall, Davies, Healy, Elling, Elders, Kiefer, Blue, Ambrose, Baranowski, Courtney, Laubacher, Piatarek, Pape, Stevens, Unger, and Williams).
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 Farm Labor Organizing Committee v. Ohio State Highway Patrol, 184 F.R.D. 583 (1998)

184 F.R.D. 583 United States District Court,
N.D. Ohio, Western Division.
FARM LABOR ORGANIZING COMMITTEE, et al., Plaintiffs, v.
The OHIO STATE HIGHWAY PATROL, et al., Defendants.
No. 3:96CV7580. | Aug. 17, 1998.
Attorneys and Law Firms
*585 William B. Senhauser, John Mark Finnegan, Equal Justice Foundation, Toledo, OH, for plaintiffs.
Allen P. Adler, Carol Hamilton O’Brien, Office of The Attorney General, Corrections Litigation Section, Columbus, OH, for defendants.
Opinion
Order
CARR, District Judge.
This is a civil rights case in which the plaintiffs allege unlawful and unconstitutional practices by the defendants. Plaintiffs assert claims under 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 2201 et seq. for violations of the First, Fourth, and Fourteenth Amendments. Also, plaintiffs seek relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., as amended. Finally, plaintiff’s bring pendant state claims under Ohio constitutional and common law. This court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. Pending is plaintiffs’ motion for class certification (Doc. 78). For the following reasons, plaintiffs’ motion shall be granted.

substitutes. On December 8, 1997, I entered a preliminary injunction that provided:
“(A) The officers, agents, and employees of the Ohio State Highway Patrol are enjoined from questioning motorists about their immigration status 1) without reasonable suspicion based on articulable objective facts arising either a) from the circumstances of the initial seizure of motorists or b) other circumstances arising during such seizure that such motorists are in violation of federal law relating to immigration, or 2) uncoerced and otherwise lawful consent to such questioning; and (B) The officers, agents, and employees of the Ohio State Highway Patrol are enjoined from seizing immigration documents from motorists absent lawful cause for doing so.”
If a legal seizure occurs, the OSHP is ordered to provide forthwith fully effective substitute documents. (Doc. 67).
Plaintiffs now move for an order certifying this case as a class action under Fed.R.Civ.P. 23(b)(2) for the purpose of obtaining a permanent injunction on behalf of all current and future Hispanic motorists and passengers in Ohio who are involved in traffic stops by the OSHP and are interrogated about their immigration status or suffer the seizure of their lawfully issued immigration documents.
The named plaintiffs, Jose Aguilar and Irma Esparza, have been subjected to both of the alleged wrongful acts of the OSHP. During traffic stops they have been interrogated about their immigration status and suffered the loss of their lawfully issued immigration documents. While the named plaintiffs seek monetary damages for themselves, they do not seek to certify a class for damages.

Facts
Plaintiffs are Hispanic migrant workers who claim that, during traffic stops, the Ohio State Highway Patrol (OSHP) violated their constitutional rights with a pattern and practice of searching and detaining them on the basis of race or national origin, questioning them about their immigration status, and/or unjustifiably confiscating immigration documents without providing adequate

Discussion
Fed.R.Civ.P. 23(a) states that one or more members of a class may sue as representatives on behalf of all members when the following conditions are met: 1) the class is so numerous that joinder of all members is impracticable, 2) there are questions of law or fact common to the class, 3) the claims or defenses of the representatives are typical of the claims or defenses of the class, and 4) the
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Farm Labor Organizing Committee v. Ohio State Highway Patrol, 184 F.R.D. 583 (1998)

representative parties will fairly and adequately protect the interests of the class. Additionally, one of the conditions of Rule 23(b) must be satisfied for a class action to be maintained. Plaintiff’s seek to maintain their suit under Rule 23(b)(2), which provides that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding *586 declaratory relief with respect to the class as a whole”.
Before discussing each of these elements, it should be established that plaintiffs are members of an identifiable class and that they have standing to bring this action. Plaintiffs have defined the proposed class as “all current and future Hispanic motorists and/or passengers traveling in Ohio, who are involved in traffic stops by officers, agents or employees of the Ohio State Highway Patrol, and are questioned about immigration matters, or suffer the seizure of their lawfully issued immigration documents.” (Doc. 78 at 3). This class is clearly defined and there should be no difficulty in ascertaining whether certain individuals are members of the class.
Defendants argue in their memorandum in opposition to plaintiffs’ motion that the named plaintiffs do not have standing to bring this suit. I have already established that plaintiffs Aguilar and Esparza “meet the three requirements of standing and can proceed with their motion for a preliminary injunction.” (Doc. 67). The issue of standing need not be revisited.
I. Numerosity
[1] Rule 23(a)(1) requires that joinder of all class members be impracticable or difficult, not impossible. It is well established that impracticability of joinder is not determined by a strict numerical test; there is no minimum number that automatically precludes class action relief. See Senter v. General Motors Corp., 532 F.2d 511, 522 n. 24 (6th Cir.1976) (citing Cash v. Swifton Land Corp., 434 F.2d 569, 571 (6th Cir.1970)).
[2] Defendants argue that the plaintiffs have failed to meet their burden of showing that the number of persons in the class is so numerous that joinder is impracticable, stressing that two persons are not so numerous as to make joinder impracticable. Defendants’ argument, however, is not well taken in this case.
To begin, the defendants’ own pleadings and evidence indicate that the conduct complained of by the plaintiffs is not isolated. Rather, the defendants’ practice is widespread and continuing. Because the defendants have admitted to using the practices complained of to identify over one thousand motorists as illegal aliens, the

argument that the proposed class is not sufficiently numerous is not persuasive.
[3] The fact that there are currently only two named plaintiffs with standing does not mean that the class is not numerous. Again, defendants’ own evidence indicates the class is already large in number, and likely to grow continually. It is not necessary that the plaintiffs define a proposed class such that every member can be identified immediately. Bremiller v. Cleveland Psychiatric Inst., 898 F.Supp. 572 (N.D.Ohio 1995). The record indicates that the number of members and potential members of the proposed class is great, and I am persuaded that joinder of all members would be impracticable. See Senter, 532 F.2d at 522 (“In ruling on a class action a judge may consider reasonable inferences drawn from facts before him at that stage of the proceedings, and an appellate judge will generally defer to the District Court’s determination that a class is sufficiently numerous to make joinder impractical.”); Rodriguez v. Berrybrook Farms, Inc., 672 F.Supp. 1009, 1013 (W.D.Mich.1987) (courts may assume joinder is impracticable when common sense indicates that class size is large).
[4] Also, several factors indicate that joinder would be impracticable and that class certification is appropriate. In deciding whether joinder would be impracticable, factors such as judicial economy through avoiding multiple lawsuits, geographical dispersion of class members, feasibility of identifying and locating class members, financial resources of class members, ability or motivation of class members to institute individual suits, and requests for prospective and injunctive relief that could affect future class members are significant. See 5 James Wm. Moore, Moore’s Federal Practice § 23.22[2], [5], [7] (3d ed.1998). The nature of the action and the type of class certification sought are also important. When these factors are considered in this case, they lead to the conclusion that joinder of all class members is impracticable.
*587 Members of the proposed class are geographically dispersed. The class includes travelers in the state of Ohio, not residents. Almost all members of the proposed class live outside the state of Ohio for significant parts of the year. (Doc. 78 at 6). Because they travel often, locating and assembling them for joinder is impracticable.
Joinder is not only impracticable because of the difficulty in locating and assembling current class members, but also because of the large number of future class members. In Afro–American Patrolmen’s League v. Duck, 38 Ohio Misc. 1, 366 F.Supp. 1095, 1099 (1973) (rev’d in part on other grounds, 503 F.2d 294 (6th Cir.1974)), Judge Don J. Young of this court held that even if current members of the class were capable of bringing suit individually, class certification was appropriate because of the large number of people who would suffer in the future and could not be
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Farm Labor Organizing Committee v. Ohio State Highway Patrol, 184 F.R.D. 583 (1998)

presently ascertained. The court further stated that class actions are particulary well suited to determine the rights of such groups. Certification is appropriate here for the same reasons.
Also, members of the proposed class lack the financial ability and the knowledge necessary to bring individual actions. The class members are poor; many of them work for less than the minimum wage as migrant farm workers. (Doc. 78 at 6). They have little knowledge of their constitutional rights and may well not know where to go to obtain legal help, even if they could afford it. Thus, plaintiffs’ argument that the issues raised in this case are not easily addressed on a case by case basis is well taken. See Rodriguez, 672 F.Supp. at 1014 (holding that geographical dispersion, poverty, lack of sophistication, and reluctance to sue individually contribute to the finding that joinder is impracticable). If the plaintiffs are not granted class status then the conduct complained of will rarely, if ever, be addressed and remedied in federal court.
Finally, the nature of the action and the type of class certification the plaintiffs seek indicate that class certification is appropriate here. The Sixth Circuit has held that in civil rights actions involving racial discrimination “the numerosity requirement is usually met by the showing of a colorable claim by the named plaintiff who is a member of a larger class having potentially similar claims.” Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir.1974). Additionally, the court stated that “in attempting to define a(b)(2) class, it should be noted that the category may in some instances be quite broad in scope. The nature of the primary relief sought in this category, injunctive or declaratory relief, does not require that the class be as narrowly confined as either (b)(1) or (b)(3).” Id. In reversing and remanding the district court’s dismissal of a motion seeking class certification in an action where the plaintiff alleged racial discrimination in housing, the court suggested that class certification might be appropriate even though there was only one named plaintiff.
II. Common Questions of Law or Fact
[5] Plaintiffs’ complaint has questions of both law and fact that are common to the class. The legal question involved—whether defendants’ practices are illegal and unconstitutional—is common to all class members. Likewise, the factual question—the exact nature and extent of defendants’ practices—is common to all members. It does not matter that the exact circumstances surrounding each class member’s traffic stop and subsequent questioning or loss of legally obtained immigration documents may be different. If the facts

surrounding each plaintiff’s claim needed to be identical, it would be nearly impossible to maintain class actions at all. See e.g. Senter, 532 F.2d at 524 (the fact that each decision to hire, fire, or promote an employee involves individual considerations does not fail the commonality requirement when the decisions are made as part of a class-wide discrimination practice); Sweet v. General Tire and Rubber Co., 74 F.R.D. 333, 335 (N.D.Ohio 1976) (when members of the class have been affected by a general policy of the defendant and that policy is the focus of the litigation, it does not matter that some plaintiffs’ claims involve different specific fact patterns).
III. Claims of Class Representatives are Typical of the Class
[6] The Rule 23(a)(3) requirement that the representatives have claims that are typical *588 of the class ensures that the named plaintiffs will serve the interests of class members. See In re American Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir.1996). In general, if the representatives’ claims arise from the same course of conduct or practice, and are based on the same legal theory as those of other class members, the typicality requirement is met. Id.
[7] Here the representatives’ claims do arise from the same course of conduct as class members’. That some specific facts may vary does not mean the claims are not typical. See Senter, 532 F.2d at 525, n. 31 (citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562–63 (2d Cir.1968)). Furthermore, there is nothing to suggest that the named plaintiffs have any interests antagonistic to the class. The Plaintiffs share with the class the common interest of having the OSHP permanently enjoined from the complained of practices.
IV. Class Representatives Will Fairly and Adequately Represent the Class
[8] In the Sixth Circuit, “there are two criteria for determining whether the representation of the class will be adequate: 1) The representative must have common interests with the unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” Senter, 532 F.2d at 525. In light of these requirements, I conclude that the last of the four prerequisites for class certification under Fed.R.Civ.P. 23(a) is met by the plaintiffs.
As has already been established, the named plaintiffs have
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Farm Labor Organizing Committee v. Ohio State Highway Patrol, 184 F.R.D. 583 (1998)

common interests with the unnamed plaintiffs. The second requirement is also easily met in this case, as the plaintiffs are represented by counsel who has participated in more than twenty class actions and is experienced in civil rights and poverty law. (Doc. 78 at 10).

Advisory Committee for the 1996 revision of Rule 23 used a civil rights case where a party is charged with unlawful discrimination against a class, usually one whose members are incapable of specific enumeration, as an illustration of a 23(b)(2) action. Id. at 525–26.

V. The Requirements of Rule 23(b)(2) are Satisfied
The demands of Fed.R.Civ.P. 23(b)(2) have also been met. Indeed, the OSHP, the party opposing class certification, “has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole.” This action involves class-wide discrimination, and so is “particularly well suited for 23(b)(2) treatment since the common claim is susceptible to a single revision remedy.” Senter, 532 F.2d at 525 (citing Jenkins v. United Gas Corp., 400 F.2d 28, 32–35 (5th Cir.1968)). The Senter court further noted that the

Conclusion Because the requirements of Fed.R.Civ.P. 23(a) and 23(b)(2) have been satisfied by the plaintiffs, it is hereby
ORDERED THAT plaintiffs’ motion for class certification (Doc. 78) be, and hereby is, granted.
So ordered.
	  

4

 
 Northern District of Ohio

06/25/2007 04:26 PM
CMECF, Cat03, Standard, Termed
U.S. District Court Northern District of Ohio (Toledo) CIVIL DOCKET FOR CASE #: 3:96-cv-07580-JGC

Farm Labor Organizing Committee et al v. Ohio State Highway Patrol et al Assigned to: Hon. James G. Carr Cause: 42:1983 Civil Rights Act

Date Filed: 09/18/1996 Date Terminated: 04/07/2003 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Farm Labor Organizing Committee

represented by J. Mark Finnegan Heberle & Finnegan 2580 Craig Road Ann Arbor, MI 48103 734-302-3233 Fax: 734-302-3234 Email: heberlefinnegan@msn.com ATTORNEY TO BE NOTICED

Kimberly M. Skaggs Equal Justice Foundation Ste. 1590 88 East Broad Street Columbus, OH 43215 614-738-3931 Fax: 614-221-9810 Email: kms@equaljusticefoundation.com ATTORNEY TO BE NOTICED

Plaintiff Merced Valdez

William B. Senhauser Equal Justice Foundation Ste. 1026 520 Madison Avenue Toledo, OH 43604-1306 419-246-1000 Fax: 419-246-1001 Email: equaljustice@msn.com ATTORNEY TO BE NOTICED
represented by J. Mark Finnegan (See above for address)

https://ecf.ohnd.uscourts.gov/cgi-bin/login.pl

Page 1 of 13

Northern District of Ohio
Plaintiff Francisco Quintero
Plaintiff Alicia Quintero
Plaintiff Margarito Olivares
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06/25/2007 04:26 PM
ATTORNEY TO BE NOTICED
Kimberly M. Skaggs (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED

represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
Kimberly M. Skaggs (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED

represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
Kimberly M. Skaggs (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED

represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
Kimberly M. Skaggs (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address)

Page 2 of 13

Northern District of Ohio
Plaintiff Guadalupe Ariola
Plaintiff Eusebio Ariola, Jr.
Plaintiff Melissa Lopez
Plaintiff Fernando Cuevas, Sr.
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06/25/2007 04:26 PM
ATTORNEY TO BE NOTICED
represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
Kimberly M. Skaggs (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED
represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
Kimberly M. Skaggs (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED
represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
Kimberly M. Skaggs (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED
represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
Page 3 of 13

Northern District of Ohio
Plaintiff Fernando Cuevas, Jr. individually, and on behalf of all peoples similarly situated
Plaintiff Jose Aguilar
Plaintiff Irma Esparza
V. Defendant Ohio State Highway Patrol
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06/25/2007 04:26 PM
Kimberly M. Skaggs (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED
represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
Kimberly M. Skaggs (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED
represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED
represented by J. Mark Finnegan (See above for address) ATTORNEY TO BE NOTICED
William B. Senhauser (See above for address) ATTORNEY TO BE NOTICED
represented by Tomi L. Dorris Office of the Attorney General State of Ohio Highway Patrol 1970 West Broad Street
Page 4 of 13

Northern District of Ohio
Defendant Warren H. Davies Colonel, individually, and in his official capacity as Superintendent of the Ohio State Highway Patrol
Defendant Bruce Elling Sergeant, individually, and in his official
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06/25/2007 04:26 PM
P.O. Box 182074 Columbus, OH 43218-2074 614-466-7014 Fax: 614-752-6063 Email: tdorris@dps.state.oh.us TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler Office Of The Attorney General Corrections Litigation Section 140 East Town Street 14th Floor Columbus, OH 43215-6001 614-728-9327 TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien Office of the Attorney General State of Ohio Corrections Litigation Section 140 East Town Street, 14th Floor Columbus, OH 43215 614-644-7233 Fax: 614-728-9327 Email: cobrien@ag.state.oh.us ATTORNEY TO BE NOTICED

represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED

represented by Tomi L. Dorris (See above for address)

Page 5 of 13

Northern District of Ohio
capacity as Supervisor, Quad A Traffic Drug Interdiction Team
Defendant Berry Elders Lieutenant, individually and in his official capacity as Swanton Post Commander of the Ohio State Highway Patrol
Defendant Kevin Kiefer Trooper
Defendant Steven R. Blue Trooper
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06/25/2007 04:26 PM
TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED

represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED

represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED

represented by Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED

Page 6 of 13

Northern District of Ohio
Defendant Rebecca Ambrose Trooper, and other unknown officers of the Ohio State Highway Patrol, in their individual capacities
Defendant Kenneth Marshall Colonel, individually and in his individual capacity as Superintendent of the Ohio State Highway Patrol
Defendant William D. Healy Staff Lieutenant, individually and is his official capacity as Traffic & Drug Interdiction Team Coordinator for the State of Ohio
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06/25/2007 04:26 PM
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED
Tomi L. Dorris (See above for address) ATTORNEY TO BE NOTICED

represented by Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED
Tomi L. Dorris (See above for address) ATTORNEY TO BE NOTICED

represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED

represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999

Page 7 of 13

Northern District of Ohio
Defendant John Baranowski Trooper, and other unknown officers of the Ohio State Highway Patrol, in their individual capacities
Defendant Brian Courtney Trooper, and other unknown officers of the Ohio State Highway Patrol in their individual capacities
Defendant Dean Laubacher Trooper, and other unknown officers of the Ohio State Highway Patrol in their individual capacities
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06/25/2007 04:26 PM
ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED
represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED
represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED
represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Page 8 of 13

Northern District of Ohio
Defendant Paul Piatarek Trooper, and other unknown officers of the Ohio State Highway Patrol in their individual capacities
Defendant Paul Pape Trooper, and other unknown officers of the Ohio State Highway Patrol in their individual capacities
Defendant Bob Stevens Trooper, and other unknown officers of the Ohio State Highway Patrol in their individual capacities
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06/25/2007 04:26 PM
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED

represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED

represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED

represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address)

Page 9 of 13

Northern District of Ohio
Defendant Richard Unger Trooper, and other unknown officers of the Ohio State Highway Patrol in their individual capacities
Defendant Charles Williams Trooper, and other unknown officers of the Ohio State Highway Patrol in their individual capacities also known as Tracy McCray

06/25/2007 04:26 PM
ATTORNEY TO BE NOTICED
represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED
represented by Tomi L. Dorris (See above for address) TERMINATED: 11/26/2002 ATTORNEY TO BE NOTICED
Allen P. Adler (See above for address) TERMINATED: 10/07/1999 ATTORNEY TO BE NOTICED
Carol H. O'Brien (See above for address) ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

09/18/1996 09/18/1996

1 Complaint (7 summons and Magistrate Consent Forms issued) against Rebecca Ambrose, Steven R. Blue, Warren H. Davies, Berry Elders, Bruce Elling, William D. Healy, Kevin Kiefer, Kenneth Marshall, Ohio State Highway Patrol. filed by John M. Finnegan of Equal Justice Foundation on behalf of Jose Aguilar, Eusebio Ariola Jr., Guadalupe Ariola, Fernando Cuevas Jr., Fernando Cuevas Sr., Irma Esparza, Farm Labor Organizing Committee, Melissa Lopez, Margarito Olivares, Alicia Quintero, Francisco Quintero, Merced Valdez. Filing fee collected, receipt #300037. (Attachments: # 1 Civil Cover Sheet)(R, Ci) (Entered: 03/21/2001)
SEE ICMS docket for entries # 2 to 43.(R, Ci) (Entered: 03/21/2001)

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Page 10 of 13

Northern District of Ohio
08/19/1997
08/19/1997 12/08/1997
02/09/1998 05/15/1998 05/15/1998 08/17/1998 09/14/1998 09/08/1999
09/08/1999

06/25/2007 04:26 PM
44 First Amended complaint (adding parties) against Rebecca Ambrose, John Baranowski, Steven R. Blue, Brian Courtney, Warren H. Davies, Berry Elders, Bruce Elling, William D. Healy, Kevin Kiefer, Dean Laubacher, Kenneth Marshall, Ohio State Highway Patrol, Paul Pape, Paul Piatarek, Bob Stevens, Richard Unger, Charles Williams. (related document(s)1) filed by John M. Finnegan of Equal Justice Foundation on behalf of Jose Aguilar, Eusebio Ariola Jr., Guadalupe Ariola, Fernando Cuevas Jr., Fernando Cuevas Sr., Irma Esparza, Farm Labor Organizing Committee, Melissa Lopez, Margarito Olivares, Alicia Quintero, Francisco Quintero, Merced Valdez.(R, Ci)(10 summons issued to attorney on 9/3/97). (Entered: 03/21/2001)
SEE ICMS docket for entries # 45 to 66.(R, Ci) (Entered: 03/21/2001)
67 Order: plaintiff's renewed motion for preliminary injunction is denied as to their claim of stops based on ethnicity; granted as follows with regard to questioning about immigration status and seizure of immigration documents; the officers, agents, and employees of the OH State Highway Patrol are enjoined from questioning motorists about their immigration status w/o reasonable suspicion based on articulable objective facts arising either from the circumstances of the initial seizure of motorists or other circumstances arising during such seizure that such motorists are in violation of federal law re to immigration or uncoerced and otherwise lawful consent to such questioning; The officers, agents and employees of the OH State Highway Patrol are enjoined from seizing immigration documents from motorists absent lawful cause for doing so and if such seizure occurs, providing forthwith fully effective substitute documents. (R, Ci) (Entered: 03/21/2001)
SEE ICMS docket for entries # 68 to 77.(R, Ci) (Entered: 03/21/2001)
78 Motion for class certification and memorandum in support filed by John M. Finnegan of Equal Justice Foundation on behalf of all plaintiffs.(R, Ci) (Entered: 03/21/2001)
SEE ICMS docket for entries # 79 to 93.(R, Ci) (Entered: 03/21/2001)
94 Order signed on 8/17/1998 Granting Motion for class certification (Related Doc # 78) (R, Ci) . (Entered: 03/21/2001)
SEE ICMS docket for entries # 95 to 108.(R, Ci) (Entered: 03/21/2001)
109 Order: Motion for summary judgment of defendant's Marshall, Davies, Healy, Elling, Elders, Blue, Ambrose, Baronowski, Courtney, Laubacher, Piatrarek, Pape, Stevens, Unger and Williams is granted; defendant Kevin Kiefer's motion for summary judgment denied; preliminary injunction granted as to issue of whether Trooper Kiefer violated 4th amendment by retaining green cards of Aguilar and Esparza for four days and denied as to all other issues and all other defendants.(R, Ci) (Entered: 03/21/2001)
SEE ICMS docket for entries # 110 to 124.(R, Ci) (Entered: 03/21/2001)

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Northern District of Ohio
04/20/2000
05/18/2000 05/18/2000 08/09/2000 08/14/2000 10/19/2000 03/22/2001 11/15/2001 03/06/2002 10/21/2002
11/13/2002
11/26/2002

06/25/2007 04:26 PM
125 Order: motion by plaintiff's for reconsideration of court's order of 9/8/99 granted in part and denied in part; plaintiff's motion for summary judgment on their 1983 claims against Trooper Kiefer granted, against defendant's Marshall, Healy, Elling and Elders, in their official capacities and as supervisors in their individual capacities is denied; plaintiff's motion for summary judgment on their Title VI claims is denied. (R, Ci) (Entered: 03/22/2001)
126 Second Motion for class certification and memorandum in support filed by John M. Finnegan of Equal Justice Foundation on behalf of all plaintiffs.(R, Ci) (Entered: 03/22/2001)
SEE ICMS docket for entries # 127 to 137.(R, Ci) (Entered: 03/22/2001)
138 True copy of Order from US Court of Appeals denying petition for permission to appeal in USCA Case No. 00-0305 (USCA Case No. 00-3653 is still open) Clerk: L. Green; Suhreinrich & Daughtrey, Circuit Judges; Weber, District Judge. Order issued 8/7/00 .(R, Ci) (Entered: 03/22/2001)
SEE ICMS docket for entry # 139.(R, Ci) (Entered: 03/22/2001)
140 Order: Telephone status conference held 10/17/00; due to pendency of appeal before the 6th circuit it is ordered that the pending motion for class certification is withdrawn w/o prejudice pending adjudication of appeal by the 6th circuit (related document(s)126) .(R, Ci) (Entered: 03/22/2001)
141 Notice of Placement of case in the CM/ECF Docketing System .(R, Ci) (Entered: 03/22/2001)
Certified record sent to the USCA, 6th Circuit (documents filed in ICMS) (M, C) (Entered: 11/15/2001)
142 Acknowledgment from the USCA for the Sixth Circuit of receipt of certified record on appeal. (M, C) (Entered: 03/08/2002)
143 Information copy of mandate from the USCA for the Sixth Circuit affirming the district court's denial of qualified immunity as to the plaintiffs' Fourth and Fourteenth Amendment claims. Furthermore, affirming the district court's grant of partial summary judgment to plaintiffs on the issue of Fourth Amendment liablity, and remanding for further proceedings consistent with this opinion. (M, C) (Entered: 10/22/2002)
144 Order signed by Judge Carr. Telephone scheduling conference held; Leave granted to defendants to file motion requesting trial on liability by 12/30/02, opposition due 1/15/03, reply due 1/27/03; Settlement conference to be held on 12/16/2002 at noon; Ex parte narrative statements to be submitted 1 week prior to said conference; Representative of defendants with full authority to settle to attend; Further scheduling held in abeyance pending settlement conference(A, P) (Entered: 11/13/2002)
145 Returned mail addressed to William B. Senhauser marked "return to sender/no forwarding order on file"; Re: Order filed 11/13/02 (Related documents(s) 144)

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Page 12 of 13

Northern District of Ohio
01/08/2003 01/08/2003 01/23/2003 04/07/2003 05/05/2003

06/25/2007 04:26 PM
(N, D) (Entered: 11/26/2002)
146 Mandate from the USCA for the Sixth Circuit affirming in part and remanding in part the decision of the district court (received in district court on 12/23/02). Related to doc 128 in ICMS; appeal no. 00-3653)(M, C). Modified on 1/13/2003 to reflect "mandate" (M, C). (Entered: 01/08/2003)
Certified record returned from the USCA for the Sixth Circuit containing 8 volumes of pleadings (which includes a video), 2 transcripts and 9 exhibits). (M, C) (Entered: 01/08/2003)
147 Order signed by Judge Carr. The parties having indicated that this case is settled, ordered that a dismissal entry shall be filed by 2/28/03. (S, A L) (Entered: 01/23/2003)
148 Order signed by Judge Carr. The Court having ordered that a dismissal entry shall be filed by February 28, 2003, and the parties having failed to file such dismissal, it is hereby ordered that this case is dismissed.(S, A L) (Entered: 04/07/2003)
149 Settlement Agreement filed by the parties. (S, A L) (Entered: 05/05/2003)

PACER Service Center

Transaction Receipt

06/25/2007 17:25:57

PACER Login: wu0079

Client Code: Woodruff

Description: Docket Report Search Criteria: 3:96-cv-07580-JGC

Billable Pages: 9

Cost:

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Page 13 of 13

 
 f"'''''' I
II !, ,
I. i

.-
,':11 .,; -,j

p~:rJiIE UNITED STATES DISTRICT COURT

, . 'NORTHERN DISTRICT OF OIDO

, • i"" , I

WESTERN DIVISION

il.

Farm Labor Organizing Committee, et aI., Plaintiff,
v.

Case No. 3:96CY7580 Judge James G. Carr

Ohio State Highway Patrol, et al.,

Defendant.

SETTLEMENT AGREEMENT
1. This Settlement Agreement is made between Farm Labor Organizing Committee, Irma Esparza, and Jose Aguilar, and all other named and/or unnamed members of the class, hereinafter the Plaintiffs, and the Ohio State Highway Patrol, Warren Davies, Kenneth B. Marshall, Kevin Kiefer, Bill Healy, Barry Elder, and Bruce Elling, hereinafter the Defendants.
2. Plaintiffs have asserted various claims against the Defendants in an action now pending in the United States District Court, Northern District of Ohio, Western Division, titled Farm Labor Organizing Committee, et al., v. Ohio State Highway Patrol, et al., and identified as United State District Court Case No. 3:96CY7580.
3. This Settlement Agreement is made as a compromise between all parties for the complete and final settlement of their claims, differences, and causes of action with respect to the dispute described above.
4. It is understood by Plaintiffs and Defendants that the facts upon which this Settlement Agreement is made may hereafter prove to be other than or different from the facts now known by the parties or believed by them to be true. Each of the parties hereto expressly accepts and assumes the risk ofthe facts proving to be so different, and each of the parties hereto agree that all the tenns of this Agreement shall be in all respects effective and not subject to termination or rescission by reason of any such difference in facts.
5. The parties agree that the terms of this Compromise and Settlement Agreement bind the parties hereto, and their assigns and successors in interest.
6. The Plaintiffs understand this Settlement Agreement is a compromise of disputed claims and payment thereof is not to be construed as an admission of liability on

the part of any of the Defendants.
7. This Settlement Agreement and Release of All Claims contains the entire agreement between the parties with regard to the matters set forth herein. There are no other understandings or agreements, verbal or otherwise, in relation thereto, between the parties except as expressly set forth herein.
8. In consideration of the mutual covenants set forth herein, the parties agree as follows:
A. Defendant Ohio State Highway Patrol agrees to pay Plaintiff Irma Esparza and Plaintiff Jose Aguilar, the sum of seven thousand five hundred and No/lOO dollars ($7,500.00) each. No interest on this amount shall be paid. No representation is made by the Defendants as to the tax consequences of payment of the amount specified in this paragraph.
B. The Plaintiffs agree that all claims, demands, rights, causes of action, costs, loss of services, expenses, and any and all other damages on account of, or in any way arising out of the actions or inactions of any Defendant, officers, employees, servants, or agents, during or arising out of the incident described in the complaint in United States District Court Case No. 3:96CV7580 be released, settled, satisfied, discharged and compensated.
C. Defendant Ohio State Highway Patrol agrees to pay attorneys' fees to the Equal Justice Foundation in the amount of eighty-five thousand No/IOO dollars ($85,000.00).
D. In the course of settlement negotiations, Defendant Ohio State Highway Patrol provided Plaintiffs' counsel with copies of Ohio State Highway Patrol policy, procedure, and training information with respect to the issue of racial bias. Defendant Ohio State Highway Patrol acknowledges its good faith willingness and agreement to continue to maintain such policy, procedure, and training, or similar policy, procedure, and training, that recognize and address the issues associated with racial bias.
E. Pursuant to Court order, Defendant Ohio State Highway Patrol has maintained documentation regarding traffic stops outside of the normal record retention schedule for said documents. These documents are no longer needed and shall revert to the record retention policy currently in effect for those documents.
9. The Plaintiffs agree to be bound by a journal entry dismissing with prejudice the above described claim known as United States District Court Case No. 3:96CV7580 and the attached Release of Claims.

10. The parties hereto acknowledge and agree that this Settlement Agreement shall not be binding on any of the parties until it has been presented to the Ohio Attorney General for his approval, and the Ohio Attorney General has approved the agreement. The parties further acknowledge that the signature of the Assistant Attorney General on this Settlement Agreement is on behalf of Defendants and is not to be construed as the approval of the Ohio Attorney General. If the Ohio Attorney General shall fail or refuse to approve the settlement, this Settlement Agreement shall be null and void and without any force or effect, and none ofthe parties shall be bound thereby.
11. The parties hereto acknowledge and agree that this Settlement Agreement shall not be binding on any of the parties until it has been duly presented to the United States District Court, Northern District of Ohio, Western Division, for the Court's approval, and the Court has approved the Settlement Agreement. If the Court shall fail or refuse to approve the Settlement Agreement, this Agreement shall be null and void and without any force or effect, and none of the parties shall be bound thereby.
12. The undersigned have read the terms and conditions of this Settlement Agreement, understand all its terms, if signing on behalf of a principal, have authority to sign settlement documents on its behalf, and have executed this Settlement Agreement voluntarily.

I ~ 0/ .:J 003
DATE

SSN (J / Y - D7 3 1" ~ ~

DATE DATE I

Counsel for Plaintiffs
KimbefiYMkagg~ Counsel for Plaintiffs

DATE DATE
1",7ftJ3
DATE DATE DATE
DATE I
DATE DATE

Col. Paul D. McClellan Ohio State Highway Patrol
Kenneth B. Marshall - Defendant
Tomi L. Dorris Assistant Attorney General Counsel for Defendants
ttomey General State of Ohio

,. f ttf .,,:

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!. ..•

"';.J"! ( i r . ;

RELEASE OF ALL CLAIMS

I,'"

TM hn:dersign~cl, Farm Labor Organizing Committee, Irma Esparza, Jose Aguilar,

and all other named and unnamed members of the class, in consideration of the sum of

seven thousand five hundred and NollOO dollars ($ 7,500.00), said amount to be paid to

both Plaintiff Irma Esparza and to Jose Aguilar, each, in settlement of United States

District Court, Northern Division on Ohio, Western Division, Case No. 3:96CV7580

titled Farm Labor Organizing Committee, et aI., v. Ohio State Highway Patrol, et aI.,

voluntarily and knowingly execute this Release with the express intention of effecting the

extinguishment of obligations herein designated.

The Plaintiffs, Farm Labor Organizing Committee, Irma Esparza, Jose Aguilar, and all other named and unnamed members ofthe class, do hereby release, hold harmless from any liability, and forever discharge the Ohio State Highway Patrol, Warren Davies, Kenneth B. Marshall, Kevin Kiefer, Bill Healy, Barry Elder, and Bruce Elling, their agents, servants, employees and officers, personally, individually, and in any other capacity, from any and all claims, actions, causes of action, demands, costs, loss of services, expenses, and any and all other damages which the undersigned ever had, now has, or may have, or claim to have, against the Ohio State Highway Patrol, Warren Davies, Kenneth B. Marshall, Kevin Kiefer, Bill Healy, Barry Elder, and Bruce Elling or their agents, servants, employees or officers, on account of or in any way arising out of the incident stated in the Complaint filed in United States District Court, Northern Division on Ohio, Western Division Case No. 3:96CV7580.

Defendant Ohio State Highway Patrol agrees to pay attorneys' fees to the Equal Justice Foundation in the amount of eighty-five thousand Noll 00 dollars ($85,000.00).

This Release and the Settlement Agreement constitute the entire agreement between the parties hereto, and the terms of this Release are contractual and not a mere recital.
IN WITNESS WHEREOF, I have hereunto set my hand this ~~day of January
2003.

Irma Esparza
S.S. No. v i,/ - 07 <3 '4" ::l- :t

JOfA~
S.S.No. :110 ~qD--G10a
epresentative arm Labor Organizing Committee
Federal I.D. No. J'I--l0Cfqan,
Sworn to and subscribed in my presence on this the ___ day of January 2003. NOTARY PUBLIC

.f. i
"

puIIl(:TiHE UNITED STATES DISTRICT COURT ! ,I -, NORTHERN DISTRICT OF OIDO

,", '

. '.-;- r' ,':"11 WESTERN DIVISION

Farm Labor Organizing Committee, et aI.,
Plaintiff, v.
Ohio State Highway Patrol, et aI.,
Defendant.

Case No. 3:96CV7580 Judge James G. Carr

ATTORNEY GENERAL'S APPROVAL OF SETTLEMENT

# The Attorney General of Ohio has reviewed the Settlement ~ . - Ift.h!e Z-?Jtl

P above-captioned action and hereby approves it on this the

day ofda ary 3.

Respectfully submitted,

V ~ J

tkut~1fC; ~

Ji Petro
A orney General ofOhio

~

 
 USCA6 Docket Sheet for 00-3653
CA6 Home New_Search Opinion

06/25/2007 10:04 PM

General Docket
US Court of Appeals for the Sixth Circuit

Court of Appeals Docket #: 00-3653 Nsuit: 3440 Civil Rights: Other Farm Labor v. OH State Hwy Patrol Appeal from: Northern District of Ohio at Toledo

Filed: 5/25/00

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Case type information:
1) Civil 2) private 3) Civil Rights--Title VII - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0647-3 : 96-07580 Trial Judge: James G. Carr, U.S. District Judge Date Filed: 9/18/96 Date order/judgment: 4/26/00 Date NOA filed: 5/19/00 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: paid

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Prior cases:

None

Current cases:

Lead

Member

Start

End

Related:

00- 3653 00- 305 5/30/00 8/7/00

Docket as of January 16, 2003 9:09 pm

Page 1

00-3653 Farm Labor v. OH State Hwy Patrol

FARM LABOR ORGANIZING COMMITTEE, et al.,
Plaintiff - Appellee

Kimberly M. Skaggs FTS 221-9810 614-221-9800 [COR ret] J. Mark Finnegan FTS 221-9810 614-221-9800 [COR LD NTC ret] Equal Justice Foundation 36 W. Gay Street Suite 300 Columbus, OH 43215

v.

OHIO STATE HIGHWAY PATROL, et

Todd R. Marti

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Page 1 of 5

USCA6 Docket Sheet for 00-3653

OHIO STATE HIGHWAY PATROL, et al.
Defendant - Appellant

Todd R. Marti FTS 728-9327 614-644-7233 [COR LD NTC ret] Office of the Attorney General Corrections Litigation Section 140 E. Town Street 14th Floor Columbus, OH 43215-6001

Docket as of January 16, 2003 9:09 pm

Page 2

06/25/2007 10:04 PM

00-3653 Farm Labor v. OH State Hwy Patrol FARM LABOR ORGANIZING COMMITTEE, et al.,
Plaintiffs - Appellees
v. OHIO STATE HIGHWAY PATROL, et al.
Defendants - Appellants
Docket as of January 16, 2003 9:09 pm

Page 3

00-3653 Farm Labor v. OH State Hwy Patrol

5/25/00

Civil Case Docketed. Notice filed by Appellant OH State. Transcript needed: n ​ (nb)

5/25/00

BRIEFING LETTER SENT setting briefing schedule: appellant brief due 7/5/00 ; appellee brief due 8/4/00 ; appendix due 8/25/00 ; final appellant brief due 9/15/00 . [00-3653] final appellee brief due 9/15/00 ; . (nb)

6/14/00

APPEARANCE filed by Attorney Todd R. Marti for Appellant OH State [00-3653] (nb)

6/14/00 6/14/00 6/29/00

PRE-ARGUMENT STATEMENT filed by Todd R. Marti for Appellant OH State [00-3653] (nb)
TRANSCRIPT ORDER FORM filed by Todd R. Marti for Appellant OH State: Transcript not needed. [00-3653] [2169852-1] (blh)
Appellant MOTION filed to hold case in abeyance pending resolution of 00-305 petition for perm to appeal. Motion filed by Todd R. Marti for Appellant OH State. Certificate of service date 6/29/00 [00-3653] (nb)

6/30/00

LETTER SENT by nb granting motion to hold case in abeyance

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Page 2 of 5

USCA6 Docket Sheet for 00-3653

06/25/2007 10:04 PM

pending reslolution of 00-305 petition for permission to appeal, filed by Todd R. Marti [00-3653] (nb)

8/7/00

BRIEFING LETTER SENT setting briefing schedule: appellant brief due 9/18/00 ; appellee brief due 10/18/00 ; appendix due 11/8/00 ; final appellant brief due 11/29/00 . [00-3653] final appellee brief due 11/29/00 ; . (nb)

9/18/00

Appellant MOTION filed to extend time to file brief . Motion filed by Todd R. Marti for Appellant OH State. Certificate of service date 9/18/00 [00-3653] (nb)

9/18/00

RULING granting motion to extend briefing [2222449-1] filed by Todd R. Marti [00-3653] resetting briefing schedule: [00-3653] . appellant brief due now 10/2/00 ; appellee brief now due 11/1/00 ; appendix now due 11/22/00 ; appellant final brief now due 12/13/00 ; appellee final brief now due 12/13/00 . (nb)

10/3/00

PROOF BRIEF filed by Todd R. Marti for Appellant OH State. Certificate of service date 10/2/00. Number of Pages: 19. [00-3653] ​ (vf)

10/3/00

Request to require oral argument filed by Todd R. Marti for Appellant OH State [00-3653] (vf)

11/2/00

PROOF BRIEF filed by Kimberly M. Skaggs and J. Mark Finnegan for Appellee Farm Labor. Certificate of service date 11/1/00 . Number of Pages: 18. [00-3653] ​ (vf)

Docket as of January 16, 2003 9:09 pm

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11/2/00

Request to require oral argument filed by Kimberly M. Skaggs for Appellee Farm Labor [00-3653] (vf)

11/7/00

APPEARANCE filed by Attorney Kimberly M. Skaggs for Appellee Farm Labor, J. Mark Finnegan for Appellee Farm Labor [00-3653] (nb)

11/20/00

Appellant MOTION filed to file reply brief instanter . Motion filed by Todd R. Marti for Appellant OH State. Certificate of service date 11/17/00 [00-3653] (vf)

11/20/00

PROOF REPLY BRIEF filed by Todd R. Marti for Appellant OH State. Certificate of service date 11/17/00. [00-3653] Final reply brief due 12/13/00 . [00-3653] (vf)

11/27/00

APPENDIX filed by Todd R. Marti for Appellant OH State. Copies: 5. Certificate of service date 11/22/00. [00-3653] (vf)

12/1/00

RULING granting motion to file reply brief instanter [2264671-1] filed by Todd R. Marti [00-3653] . (vf)

ht1tp2:///p6ac/e0r.c0a6.uscourts.gov/cgiF-bIinN/dAkLtrptB.pRl?ICAESFENUfMi=l00e-d365b3&ypuKidi=0m1b1e82r8l26y958M&.dktSsrkcha=g1 gs and J. Mark

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USCA6 Docket Sheet for 00-3653

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12/6/00

FINAL BRIEF filed by Kimberly M. Skaggs and J. Mark Finnegan for Appellee Farm Labor. Copies: 7. Certificate of service date 12/5/00 . Number of Pages: 18. [00-3653] (vf)

12/11/00

FINAL BRIEF filed by Todd R. Marti for Appellant OH State. Copies: 7. Certificate of service date 12/8/00. Number of Pages: 19. [00-3653] (vf)

12/11/00

FINAL REPLY BRIEF filed by Todd R. Marti for Appellant OH State. Copies: 7 Certificate of service date 12/8/00. Number of Pages: 10. [00-3653] (vf)

10/10/01

Oral argument date set for December 4, 2001 in court room 607. Notice of argument sent to counsel. [00-3653] (rld)

11/14/01

Record requested from district court. (dac)

11/16/01

CERTIFIED RECORD filed . Volumes include 2 Tr; 9 Ex; 8 Pl. [00-3653] (dac)

12/4/01

CAUSE ARGUED on 12/4/01 by Todd R. Marti for Appellant OH State, Kimberly M. Skaggs for Appellee Farm Labor before Judges Kennedy, Moore, Cole. [00-3653] (me)

Docket as of January 16, 2003 9:09 pm

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10/17/02

OPINION filed : AFFIRMED the district court's denial of qualified immunity as to the plaintiff's Fourth and Fourteenth Amendment claims and its grant of partial summary judgment to plaintiffs on the issue of Fourth Amendment liability; REMANDED for further proceedings consistent with the opinion of the court. [00-3653], decision for publication pursuant to local rule 206 [00-3653] . Cornelia G. Kennedy, Circuit Judge (delivered a separate dissenting opinion), Karen N. Moore, Authoring Judge, R. G. Cole, Circuit Judge. (tmb)

10/17/02

JUDGMENT : AFFIRMED and REMANDED. (tmb)

10/31/02

Appellant MOTION filed to extend time to 11/14/02 to file a petition for rehearing en banc. Motion filed by Todd R. Marti for Appellant OH State. Certificate of service date 10/31/02 [00-3653] (blh)

11/1/02

RULING granting motion to extend time to 11/14/02 to file a petition for rehearing en banc [2641684-1] filed by Todd R. Marti. Petition to be filed by 11/14/02. [00-3653] (blh)

12/19/02

MANDATE ISSUED with no cost taxed [00-3653] (pb)

12/26/02

CERTIFIED RECORD RETURNED to lower court at the end of

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appellate proceedings. [00-3653] . Volumes included: 8 Pl; 2 Tr; 9 Ex. (dac)

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 308 F.3d 523 (2002)
FARM LABOR ORGANIZING COMMITTEE, et al., Plaintiffs-Appellees, v.
OHIO STATE HIGHWAY PATROL, et al., Defendants-Appellants.
No. 00-3653.
United States Court of Appeals, Sixth Circuit.
Argued: December 4, 2001. Decided and Filed: October 17, 2002.
5245678 *524 *525 *526 *527 *528 Kimberly M. Skaggs (argued and briefed), J. Mark Finnegan (briefed), Equal Justice Foundation, Columbus, OH, for Plaintiff-Appellee.
Todd R. Marti (argued and briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Defendant-Appellants.
Before KENNEDY, MOORE, and COLE, Circuit Judges.
OPINION
MOORE, Circuit Judge.
Defendant-Appellant, Trooper Kevin Kiefer, appeals the district court's denial of qualified immunity in this § 1983 action alleging that he (1) targeted the individual plaintiffs for questioning concerning their immigration status based solely upon their race or national origin in violation of the Equal Protection Clause of the Fourteenth Amendment, and (2) unreasonably detained the plaintiffs' green cards for four days without probable clause in violation of the Fourth Amendment.[1] For the reasons stated below, we AFFIRM the denial of qualified immunity as to the plaintiffs' Fourth and Fourteenth Amendment claims. Furthermore, we AFFIRM the district court's grant of partial summary judgment to plaintiffs on the issue of Fourth Amendment liability and REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background
Plaintiffs Jose Aguilar and Irma Esparza ("plaintiffs") are lawfully admitted permanent resident aliens. On Sunday, 529 *529 March 26, 1995, Aguilar and Esparza were driving from their home in Chicago, Illinois, to Toledo, Ohio, to
visit family members. During this trip, an Ohio State Highway Patrol ("OSHP") trooper, Kevin Kiefer, stopped Aguilar and Esparza for driving with a faulty headlight. After the plaintiffs pulled over, Trooper Kiefer approached the plaintiffs' car and asked to see Aguilar's driver's license. Aguilar provided Trooper Kiefer with a valid Illinois driver's license. Trooper Kiefer then ordered Aguilar out of the car and placed him in the back of his cruiser.
Almost immediately thereafter, a second OSHP cruiser arrived. A trooper from the second cruiser walked a drugsniffing dog around the outside of the plaintiffs' vehicle. The dog "alerted," indicating that the vehicle contained narcotics.[2]
The second trooper then asked Esparza for identification. She offered the trooper an Illinois identification card, but the trooper reportedly grabbed her wallet and removed her green card. The trooper then instructed Esparza to step out of the vehicle. She was locked in the back of Trooper Kiefer's cruiser next to Aguilar. Trooper Kiefer

then demanded to see Aguilar's green card. The green cards of both Aguilar and Esparza were valid and in force at the time of this encounter.
After examining the green cards, the troopers asked Aguilar and Esparza where they had obtained their green cards and whether they had paid for them. The troopers were attempting to inquire whether the documents were forged, since green cards are not offered for sale. Aguilar and Esparza speak limited English, however, and believed that the troopers were asking whether they had paid the required processing fees. They responded that they had paid for the cards, meaning that they had paid all required fees. Trooper Kiefer interpreted the plaintiffs' response as an indication that the cards were likely forged, and retained the green cards for authentication.
Trooper Kiefer was unable to contact the INS to verify the authenticity of plaintiffs' green cards at the time of the encounter, because it was a Sunday, so he took the green cards and let the plaintiffs go. Trooper Kiefer "did not issue the plaintiffs a receipt for their green cards, tell them when they could expect them back if the cards were indeed authentic, or tell them where or how to inquire if they had any questions about the seizure." Farm Labor Org. Comm. v. Ohio State Highway Patrol, 95 F.Supp.2d 723, 728 (N.D.Ohio 2000).
The next day (Monday), the plaintiffs retained an attorney. That day, paralegal Arturo Ortiz contacted the OSHP on behalf of Aguilar and Esparza, but was unable to obtain assistance because he lacked information regarding the incident. On Thursday, Ortiz again contacted OSHP and spoke to Trooper Kiefer. Kiefer returned the green cards personally that same day, four days after the initial seizure. When asked in his deposition why it took so long to verify the green cards, Trooper Kiefer explained that he had taken a few days off from work and was unable to reach the INS during that time.
The plaintiffs contend that Trooper Kiefer's actions were, in part, the product of a pattern and practice by the OSHP of questioning motorists about their immigration status on the basis of their Hispanic appearance. From 530 the record, it appears that the OSHP 0907 particularly its Traffic *530 and Drug Interdiction Team (TDIT) 0907 began taking a more active role in immigration enforcement in 1995. Pursuant to this role, OSHP troopers have been known to inquire into motorists' immigration status during routine traffic stops. When these inquiries lead an OSHP trooper to conclude that an individual may be an illegal immigrant, the trooper will contact the Border Patrol and detain the suspect until the Border Patrol arrives. Pursuant to this practice, "the OSHP has detained hundreds of motorists who were suspected to be illegally in the United States following routine traffic stops; such detention, in all likelihood, was precipitated by answers given to questions regarding the motorists' immigration status." Farm Labor Org. Comm., 95 F.Supp.2d at 735. Although the OSHP maintains that it does not do so frequently, troopers sometimes seize alien registration cards of suspected illegal immigrants and deliver them to federal authorities.
B. Procedural History
This case was brought as a class action lawsuit. The plaintiff class (the "class") is composed of migrant workers who claim that the OSHP has violated their constitutional rights by interrogating them about their immigration status, and, in some cases, confiscating immigration documents, on the basis of their Hispanic appearance. The class's initial motion for a preliminary injunction to enjoin this practice was denied without prejudice, because none of the named plaintiffs had ever been stopped, and the class therefore lacked standing. Farm Labor Org. Comm. v. Ohio State Highway Patrol, 991 F.Supp. 895, 899 (N.D.Ohio 1997). The class subsequently amended its complaint to add plaintiffs Jose Aguilar and Irma Esparza, who were stopped by the OSHP. The district court then granted in part the class's request for a preliminary injunction, ordering the OSHP to (1) refrain from questioning motorists about their immigration status absent consent or reasonable suspicion based upon articulable objective facts, (2) refrain from seizing immigration documents without "lawful cause for doing so," and (3) provide effective substitutes for any immigration documents seized. Id. at 907.
On August 17, 1998, the district court certified the class under Federal Rule of Civil Procedure 23(b)(2). Farm Labor Org. Comm. v. Ohio State Highway Patrol, 184 F.R.D. 583 (N.D.Ohio 1998). On September 8, 1999, the district court issued an order granting summary judgment to all defendants, except Trooper Kevin Kiefer, on the class's Fourth Amendment claims. The court granted the motion of plaintiffs Aguilar and Esparza for summary judgment against Trooper Kiefer based upon the claim that Trooper Kiefer had unreasonably detained their green

cards for four days after the March 26, 1995, stop. The court found that questioning regarding immigration status, however, did not offend the Fourth Amendment, so long as it took place pursuant to lawful traffic stops and the duration of these stops was not extended beyond the time required to complete the legitimate purposes of a traffic stop. The court found that the questioning of Aguilar and Esparza took place after the police had probable cause to perform a search for narcotics, based upon the alert of the drug detection dog. Consequently, the questioning of Aguilar and Esparza regarding their immigration status did not violate the Fourth Amendment. The district court also dissolved the preliminary injunction it issued on December 8, 1997.
The class subsequently moved for reconsideration of the September 8th order. The class asserted that the 531 September 8th order failed to address a number of matters, *531 including its motion for injunctive relief under
Title VI, the status of class-wide claims for injunctive relief under the Fourth Amendment, and claims for relief under the Equal Protection Clause of the Fourteenth Amendment.
On April 20, 2000, the district court granted the motion for reconsideration in part and denied it in part. Farm Labor Org. Comm., 95 F.Supp.2d 723. The court found that the class lacked standing for class-wide injunctive relief, because the named plaintiffs had been stopped only once and the court did not find a sufficient likelihood that they would be subjected to similar practices again in the future. Id. at 730-33 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). The court found that plaintiffs Aguilar and Esparza did have standing to sue for damages on an equal protection theory, however. Id. at 730. The district court then denied Trooper Kiefer's motion for summary judgment based upon qualified immunity, and granted Aguilar's and Esparza's motions for summary judgment against Trooper Kiefer on their equal protection claims. The court found that Aguilar and Esparza had presented sufficient evidence to make a prima facie case that Trooper Kiefer targeted them for investigation regarding their immigration status solely on the basis of their being Hispanic. Id. at 737. The court further concluded that Trooper Kiefer had failed to offer any legitimate race-neutral explanation for the investigation. Id. at 738. The court also denied summary judgment based upon qualified immunity to certain of Trooper Kiefer's superior officers in connection with Aguilar's and Esparza's claims against them in their individual capacities for deliberate indifference to Aguilar's and Esparza's constitutional rights. Id. at 741. Finally, the district court granted summary judgment to all defendants in connection with the class's Title VI claims, because the class failed to demonstrate a sufficient nexus between federal funds provided to the OSHP and the challenged activity. Id. at 743.
II. ANALYSIS
A. Jurisdiction
In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held that denials of summary judgment on the basis of qualified immunity, to the extent that such orders turn on issues of law, are immediately appealable under the "collateral order" doctrine articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Pursuant to this doctrine, federal appellate courts have jurisdiction to hear interlocutory appeals concerning "the legal question of qualified immunity, i.e., whether a given set of facts violates clearly established law." Mattox v. City of Forest Park, 183 F.3d 515, 519 (6th Cir.1999). Conversely, denials of qualified immunity may not be reviewed on interlocutory appeal insofar as "a defendant simply wants to appeal a district court's determination that the evidence is sufficient to permit a particular finding of fact after trial." Johnson v. Jones, 515 U.S. 304, 314, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) . For the purposes of this appeal, therefore, we assume the plaintiffs' version of the facts is true, and ask whether, given such facts, the plaintiffs have demonstrated that Trooper Kiefer violated their clearly established rights under the Fourth and Fourteenth Amendments.[3]
532 *532 B. Standard of Review
We review de novo a district court's denial of summary judgment on qualified immunity grounds, because the determination of whether qualified immunity is applicable to an official's actions is a question of law. Dickerson v.

McClellan, 101 F.3d 1151, 1157 (6th Cir.1996). Summary judgment is proper only when there is no dispute as to a material question of fact and the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c).
According to the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity involves a two-step inquiry. First, the court considers whether "[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show [that] the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). If the court finds a constitutional violation has been demonstrated, it must then consider whether the violation involved "`clearly established constitutional rights of which a reasonable person would have known.'" Dickerson, 101 F.3d at 1158 (quoting Christophel v. Kukulinsky, 61 F.3d 479, 484 (6th Cir.1995)); see also Saucier, 121 S.Ct. at 2156. For a right to be clearly established, "`[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir.1992) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). "Although it need not be the case that `the very action in question has been previously held unlawful, ... in the light of pre-existing law the unlawfulness must be apparent.'" Id. (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). As the Supreme Court has recently explained, "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer, ___ U.S. ___, 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002). "Although earlier cases involving `fundamentally similar' facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding." Id.
C. Equal Protection
Plaintiffs allege that Trooper Kiefer violated their rights under the Equal Protection Clause of the Fourteenth 533 Amendment *533 by targeting them for investigation concerning immigration status and seizing their green cards
because of their Hispanic appearance. The district court found that the plaintiffs presented sufficient evidence to show that they were targeted for questioning about their immigration status solely because of their Hispanic appearance, and that the OSHP and Trooper Kiefer had failed to articulate a race-neutral reason for questioning the plaintiffs. The court therefore denied Trooper Kiefer's motion for summary judgment based upon his defense of qualified immunity and granted partial summary judgment to the plaintiffs on the issue of liability. Trooper Kiefer contends that he is entitled to qualified immunity because the undisputed facts show that his inquiries into the plaintiffs' immigration status were motivated by the plaintiffs' difficulties speaking and understanding English, which he contends is a legitimate race-neutral reason for the investigative steps taken.
1. Constitutional Violation
In assessing Trooper Kiefer's claim of qualified immunity, we first determine whether the facts, viewed in the light most favorable to the plaintiffs, show a violation of the plaintiffs' constitutional rights. Dickerson, 101 F.3d at 1158. The plaintiffs allege that Trooper Kiefer singled them out for inquiry into their immigration status on the basis of their Hispanic appearance during the course of a lawful traffic stop. The plaintiffs do not challenge the validity of their initial stop for a faulty headlight. Nor do they assert that the questioning exceeded the permissible scope of the stop under the Fourth Amendment. Nevertheless, as this court has recognized, "[t]he Equal Protection Clause of the Fourteenth Amendment provides citizens a degree of protection independent of the Fourth Amendment protection against unreasonable searches and seizures." United States v. Avery, 137 F.3d 343, 352 (6th Cir.1997) . Similarly, the Supreme Court, in Whren v. United States, confirmed that an officer's discriminatory motivations for pursuing a course of action can give rise to an Equal Protection claim, even where there are sufficient objective indicia of suspicion to justify the officer's actions under the Fourth Amendment:
We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally

discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.
517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Therefore, if the plaintiffs can show that they were subjected to unequal treatment based upon their race or ethnicity during the course of an otherwise lawful traffic stop, that would be sufficient to demonstrate a violation of the Equal Protection Clause. Cf. United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir.) (en banc) (holding that equal protection principles precluded use of Hispanic appearance as a relevant factor for Fourth Amendment individualized suspicion requirement), cert. denied, 531 U.S. 889, 121 S.Ct. 211, 148 L.Ed.2d 148 (2000).
The Supreme Court has explained that a claimant alleging selective enforcement of facially neutral criminal laws must demonstrate that the challenged law enforcement practice "had a discriminatory effect and that it was 534 motivated by *534 a discriminatory purpose."[4]Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). "To establish discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). A claimant can demonstrate discriminatory effect by naming a similarly situated individual who was not investigated or through the use of statistical or other evidence which "address[es] the crucial question of whether one class is being treated differently from another class that is otherwise similarly situated." Chavez v. Ill. State Police, 251 F.3d 612, 638 (7th Cir.2001). Discriminatory purpose can be shown by demonstrating that the "`decisionmaker ... selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group.'" Wayte, 470 U.S. at 610, 105 S.Ct. 1524 (quoting Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). Determining whether official action was motivated by intentional discrimination "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). "[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [practice] bears more heavily on one race than another." Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
This framework has been applied in a number of cases in this and other circuits involving allegations of discriminatory police enforcement practices. See, e.g, United States v. Bullock, 94 F.3d 896, 899 (4th Cir.1996) (applying selective enforcement test to criminal defendant's claim that officer tended to escalate traffic stops of young black males into drug investigations); United States v. Bell, 86 F.3d 820, 823 (8th Cir.) (holding that defendant was required to demonstrate discriminatory effect to sustain defense based upon theory that police enforced bicycle headlight law only against black offenders), cert. denied, 519 U.S. 955, 117 S.Ct. 372, 136 L.Ed.2d 262 (1996); United States v. Anderson, 923 F.2d 450, 453-54 (6th Cir.) (applying selective prosecution 535 framework to defendant's claim that he was singled out by the police *535 for a background check for prior felonies following his arrest), cert. denied, 499 U.S. 980, 111 S.Ct. 1633, 113 L.Ed.2d 729, and 500 U.S. 936, 111 S.Ct. 2062, 114 L.Ed.2d 467 (1991). Many of these cases involved § 1983 equal protection claims similar to those presented by the plaintiffs in the instant case. See Chavez, 251 F.3d at 635-36 (applying discriminatory purpose/discriminatory effect test in class action suit alleging that state police used racial classifications in deciding whom to stop, detain, and search in enforcing traffic laws); Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir.2000) (applying selective prosecution test to § 1983 claim alleging that police made racially motivated decision to pursue theft investigation against interracial couple); Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir.1997) (applying selective prosecution test to § 1983 claim alleging that police arrested plaintiff because they believed she was a lesbian), cert. denied, 523 U.S. 1118, 118 S.Ct. 1796, 140 L.Ed.2d 936 (1998).
In its April 20, 2000, order, the district court determined that the plaintiffs had presented sufficient evidence to prove the requisite facts for a prima facie case of intentional discrimination under the selective prosecution framework. J.A. at 239 ("I find that plaintiffs have satisfied their prima facie burden...."). After reviewing the record, the district court initially determined that plaintiffs had advanced sufficient evidence to support a factual finding that "`the decision makers in [their] case acted with discriminatory purpose.'" J.A. at 238 (quoting McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)). The court noted that the record contained a range of circumstantial evidence supporting such a finding of intent. Perhaps most significantly, the court cited the deposition testimony of Kiefer and other OSHP officials:

Trooper Kiefer ... testified that when he found Hispanic passengers hiding under a blanket, he called the Border Patrol, but that if he found white people hiding under a blanket, he would not. Sgt. Elling likewise testified that he would not call the Border Patrol regarding a motorist [ ]unless ["][he] would think that they would probably be Hispanic in nature." And Trooper Pahl admitted that she once had contacted the Border Patrol after coming across two Hispanic men whose car had broken down, but that she wouldn't do the same for a white man.
J.A. at 242 (citations omitted). The court also cited additional circumstantial evidence of discriminatory intent. The court noted that over ninety percent of OSHP's immigration inquiries concerned Hispanic motorists. The court also appears to have credited plaintiffs' argument that "[g]iven defendants' admitted lack of training in the identification of illegal immigrants, the only reasoned basis on which to question a motorist about immigration status ... is the motorist's Hispanic appearance coupled with indicators of Hispanic ethnicity." J.A. at 240-41. The district court also observed that "TDIT provides officers with a list of immigration related questions along with their Spanish translations, but there is no evidence that such translations are provided in any other languages." J.A. at 241. Finally, the court discussed a videotape of a traffic stop in which Trooper Kiefer pulled over a car containing three Hispanic individuals for "driving slightly above the speed limit." J.A. at 242. During the stop, Kiefer questioned the driver and two passengers about their immigration status even after the individuals presented valid state identification cards and after Kiefer had decided not to issue a speeding citation. The court appears to 536 have accepted plaintiffs' characterization of the tape as supporting an *536 inference that the individuals in the vehicle "were questioned about their immigration status solely on the basis of their Hispanic appearance, because nothing about their conduct suggested that they were in the country illegally; indeed, Trooper Kiefer had been prepared to release [the driver] so long as [his] license cleared." J.A. at 243.
As to the discriminatory effect prong, the district court observed that "[t]he burden rests on plaintiffs to show, by a preponderance of the evidence, that they were treated differently than similarly situated non-minorities." J.A. at 238. The court considered, and rejected, defendants' argument that "no evidence presented thus far indicates that Hispanic motorists are treated differently than non-Hispanic motorists." J.A. at 243. The court concluded that plaintiffs' evidence was sufficient to permit a finding that similarly situated non-Hispanic motorists were treated differently, observing that
Plaintiffs have introduced direct evidence that Hispanic motorists are treated differently than white motorists. Trooper Kiefer, Sgt. Elling, and Trooper Pahl all testified that, in their experience, they would refer Hispanic motorists to the Border Patrol when, in precisely the same circumstances, they would not refer someone who was white (i.e., not of Hispanic appearance).
J.A. at 243-44. The district court noted that this finding was supported by additional "inferential evidence of a discriminatory practice," including the fact that "most motorists ... [who were] asked about their green cards were Hispanic-looking" and defendants' misinformation and lack of training concerning what facts give rise to reasonable suspicion of immigration violations. J.A. at 244.
Because this is an interlocutory appeal, we do not consider whether the plaintiffs' evidence is sufficient to present a genuine issue for trial as to the underlying factual elements of their selective enforcement claim 0907 i.e., whether plaintiffs' evidence could support a finding that Trooper Kiefer actually did target the plaintiffs in part because of their Hispanic appearance or that the OSHP does not investigate non-Hispanic motorists who are similarly situated to the plaintiffs.[5] Under Johnson, 515 U.S. at 317, 115 S.Ct. 2151, we lack jurisdiction on interlocutory appeal of a denial of qualified immunity to review the district court's determination that plaintiffs have presented 537 sufficient evidence to prove the underlying or basic *537 facts alleged in support of their constitutional claim. Williams v. Mehra, 186 F.3d 685, 690 (6th Cir.1999) (en banc) (observing that appellate court lacked jurisdiction to consider factual questions relating to defendants' knowledge and conduct). Questions of evidentiary sufficiency are not separate and distinct from the merits of plaintiffs claims, and review of such questions on interlocutory appeal "can consume inordinate amounts of appellate time" by requiring the appeals court to comb a voluminous pretrial record to assess plaintiffs' evidence. Johnson, 515 U.S. at 316, 115 S.Ct. 2151. This limitation on our appellate jurisdiction applies with particular force to evidence sufficiency questions relating to a defendant's intent, such as whether a defendant acted with a discriminatory purpose. See id.; McCloud v. Testa, 97 F.3d

1536, 1544-45 (6th Cir.1997) ("[T]he example that the Johnson Court chose to illustrate what kinds of cases it wanted to prevent the courts of appeals from exercising jurisdiction over focused on intent...."). "[T]o determine whether there is or is not a triable issue of fact about such a matter [as the defendant's intent] may require reading a vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials. This fact means, compared with Mitchell, greater delay." Johnson, 515 U.S. at 316, 115 S.Ct. 2151. Thus, our review in the instant case is confined to the question of whether "all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of `objective legal reasonableness.'" Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). The district court concluded that the plaintiffs had presented sufficient evidence from which a trier of fact could find that the defendants, including defendant Kiefer, acted with a discriminatory purpose and did not initiate immigration investigations of non-Hispanic motorists who were otherwise similarly situated to the plaintiffs. We therefore assume, without deciding, for the purposes of this appeal that the plaintiffs can prove these underlying factual claims. Johnson, 515 U.S. at 319, 115 S.Ct. 2151 ("[T]he court of appeals can simply take, as given, the facts that the district court assumed when it denied summary judgment....").
Perhaps realizing this limitation on the range of issues appealable on interlocutory appeal, defendant Kiefer does not dispute that the plaintiffs have made a prima facie showing of discriminatory effect and discriminatory purpose. Instead, Kiefer properly limits his appeal to "neat abstract issues of law" relating to qualified immunity 0907 i.e., whether the facts alleged by the plaintiffs demonstrate a violation of clearly established law. Id. at 317, 115 S.Ct. 2151 (quotation omitted). Kiefer first argues that, assuming plaintiffs have shown that he targeted them for investigation in part because of their Hispanic appearance, the facts alleged by the plaintiffs do not demonstrate that he targeted them solely because of their apparent ethnicity. Kiefer argues that the undisputed facts reveal that he was motivated at least in part by plaintiffs' inability to speak English, which he alleges to be a valid raceneutral basis for initiating an immigration investigation.[6]
538 *538 Kiefer relies on our opinion in United States v. Travis, 62 F.3d 170 (6th Cir. 1995), cert. denied, 516 U.S. 1060, 116 S.Ct. 738, 133 L.Ed.2d 688 (1996), for the proposition that a civil-profiling plaintiff must prove that he or she was targeted solely because of his or her race. In Travis, this circuit held that "consensual searches may violate the Equal Protection Clause when they are initiated solely based on racial considerations." Id. at 173. The legal standard articulated in Travis does appear to place the burden on the plaintiff to show that no race-neutral motives played a role in the challenged police conduct. Specifically, the Travis court explained that where "officers ... decide to interview a suspect for many reasons, some of which are legitimate and some of which [are] based on race[,] .... the use of race in the pre-contact stage does not give rise to any constitutional protections." Id. at 174.
Nevertheless, we think it would be inappropriate to apply Travis to the factual circumstances presented in the instant case. Travis and its progeny, particularly United States v. Avery, 137 F.3d 343 (6th Cir.1997), addressed equal protection challenges to consensual police interviews of airport travelers, which were allegedly initiated based upon racial criteria. This circuit has never used the Travis standard in cases alleging racially discriminatory conduct by officers toward an individual who has already been detained, and who is therefore not free to leave and terminate the encounter at will. As our earlier discussion of the relevant case law makes clear, this circuit and our fellow courts of appeals have consistently applied the selective enforcement framework of Wayte and Armstrong in cases involving non-consensual police encounters. We see no reason to depart from this approach in the instant case. The selective enforcement framework does not require a plaintiff to show that the defendant had no race-neutral reasons for the challenged enforcement decision. Instead, it is enough to show that the challenged action was taken "at least in part `because of' ... its adverse effects upon an identifiable group.'" Wayte, 470 U.S. at 610, 105 S.Ct. 1524 (quoting Feeney, 442 U.S. at 279, 99 S.Ct. 2282).
The "sole motive" requirement announced in Travis is an anomaly in equal protection law, and should not be applied outside the narrow factual context of purely consensual encounters. The only legal authority cited by the Travis court for its "sole motive" analysis was the Supreme Court's decision in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), a First Amendment retaliation case. However, Mt. Healthy merely announced that the presence of an impermissible motive will not give rise to a 539 constitutional violation if the state can show that the challenged decision would *539 have been made regardless of the improper motive. Id. at 286-87. Mt. Healthy does not limit constitutional liability to instances in which an

impermissible purpose was the sole motive for an adverse action; it simply requires an inquiry into whether the impermissible motive was a "but for" cause of the challenged decision. The same multiple-motive analysis applies in the equal protection arena: proof that a decision was "motivated in part by a racially discriminatory purpose .... shift[s] to the [defendant] the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered." Arlington Heights, 429 U.S. at 270 n. 21, 97 S.Ct. 555; see also Hunter v. Underwood, 471 U.S. 222, 232, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985); Howard v. Senkowski, 986 F.2d 24, 30 (2d Cir.1993) (applying Mt. Healthy/Arlington Heights multiple-motive analysis to claim of race-based use of peremptory strikes). Indeed, the Supreme Court has clearly explained that the Equal Protection Clause "does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes." Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555. Thus, we believe that Travis is in fact inconsistent with the Supreme Court's approach in Mt. Healthy and other multiple-motive cases involving equal protection issues. For that reason, we decline to extend the standard articulated in Travis beyond the narrow factual situation addressed in that case.
Thus, even if Trooper Kiefer is correct that the record reveals that he possessed some race-neutral basis for initiating the investigation of the plaintiffs, this fact alone would not entitle him to summary judgment on qualified immunity as long as the plaintiffs can demonstrate that he was partly motivated by a discriminatory purpose. Of course, Trooper Kiefer can still argue, based upon Mt. Healthy and Arlington Heights, that his race-neutral reasons would have caused him to investigate the plaintiffs regardless of any discriminatory motive that may have existed. The question of whether Trooper Kiefer's allegedly discriminatory motive played a determinative role in the decision to investigate the plaintiffs, however, is a factual dispute best suited for resolution at trial.
Moreover, we disagree with Trooper Kiefer's contention that the plaintiffs' difficulty speaking English necessarily establishes a valid race-neutral basis for initiating an immigration investigation. Kiefer relies on United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), in which Supreme Court identified one's "inability to speak English" as one of many factors that may be taken into account in deciding whether there is probable cause to search a private vehicle for illegal aliens. According to Kiefer, Ortiz conclusively establishes that officers lawfully may select individuals for immigration investigations based upon their inability to speak English.
We think Ortiz provides little guidance in the instant case. Ortiz was a Fourth Amendment case involving automobile searches at a Border Patrol checkpoint less than 100 miles from the U.S.-Mexican border. The respondent in Ortiz did not raise a Fourteenth Amendment claim and the Court mentioned the use of one's English-speaking ability as a basis for selection only once in a laundry list of factors that might be used in deciding whether there is probable cause to refer an automobile for further inspection. Id. The Ortiz Court therefore had no occasion to consider fully the equal protection implications raised when motorists are targeted for immigration investigations on the basis of their lack of familiarity with the English language. Moreover, the 540 Supreme Court *540 has cautioned against extending the logic of border enforcement cases to situations remote from the border, where the government interest in immigration policing may be less compelling. See United States v. Martinez-Fuerte, 428 U.S. 543, 564 n. 17, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); accord United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (noting that in the Fourth Amendment context, certain practices may be permitted at the border in part "because of the importance of the governmental interest at stake ... and the absence of practical alternatives for policing the border").
The Supreme Court did consider the equal protection implications of using language as a basis for selection in Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). In Hernandez, the Court cautioned that when a government official uses as a criterion for decision a person's ability to speak a particular language that is closely associated with a specific ethnic group, that fact may "raise[ ] a plausible, though not a necessary, inference that language might be a pretext for what in fact were race-based" actions. Id. at 363, 111 S.Ct. 1859. In Hernandez, a prosecutor struck several Hispanic individuals from a criminal defendant's petit jury. Among the reasons articulated by the prosecutor for the strikes was the fact that the jurors were bilingual in English and Spanish and might therefore not accept the interpreter's account of the testimony of some of the prosecution's key witnesses, who were Spanish-speaking. The trial court found that the criminal defendant had shown a prima facie case of race-based challenges, but concluded that the prosecutor's proffered reasons were legitimate. The Court approved the trial court's conclusion, explaining that the question of whether the

prosecutor's explanation was genuine or mere pretext masking an intent to discriminate was a "pure issue of fact" that turned largely upon credibility assessments and demeanor observations. Id. at 364, 111 S.Ct. 1859.
Considering Ortiz in light of Hernandez, we think that an officer's reliance upon a suspect's inability to speak English may be a proper race-neutral factor, but that fact questions as to pretext are necessarily present where an officer acts based upon the fact that a suspect speaks Spanish due to the close connection between the Spanish language and a specific ethnic community, such as the large migrant labor community in Northwest Ohio. In light of this principle, it may be that genuine issues of material fact exist as to whether Trooper Kiefer's reliance on plaintiffs' inability to speak English was a legitimate race-neutral reason or a mere pretext for discrimination. The district court concluded that plaintiffs' evidence permitted the inference that OSHP officers focus on motorists' English-speaking ability largely because it is an "indicator[ ] of Hispanic ethnicity." J.A. at 241. The district court particularly emphasized the fact that "the TDIT provides officers with a list of immigration related questions in English along with their Spanish translations, but there is no evidence that such translations are provided in any other languages." J.A. at 241. In contrast, OSHP officers dispute that they question only Spanishspeaking motorists. See Elling Dep. at 35 (noting that OSHP has questioned Polish persons who spoke "broken English"). This appears to be a factual dispute best suited to resolution at trial, and therefore it is not a proper basis for granting summary judgment to the defendant on qualified immunity.

2. Whether the Relevant Law Was Clearly Established

541 Trooper Kiefer contends that, even if his actions did constitute a violation *541 of the plaintiffs' constitutional rights, these rights were not clearly established at the time of the challenged encounter. In particular, the defendant argues that this circuit did not recognize the existence of the rights asserted by the plaintiffs until our decision in Travis, 62 F.3d 170, which was handed down in August of 1995, more than four months after the events in question.[7] As noted in the foregoing section, Travis held that the Equal Protection Clause prohibits a police officer from selecting an airport traveler for a consensual interview solely on the basis of the traveler's race. Id. at 174. The defendant points to our observation in Travis that we had addressed the issue of whether racially motivated consensual encounters could give rise to an equal protection claim "only once before in an unpublished opinion." Id. at 173 (citing United States v. Jennings, 1993 WL 5927 (6th Cir. Jan. 13, 1993)). Since the first published opinion on the issue was handed down after the events in question, the defendant argues, a reasonable officer would not have known that Trooper Kiefer's actions violated the plaintiffs' constitutional rights.

We disagree with the defendant's characterization of the state of the law in 1995. While Travis may have been the first case to reach the merits of such an equal protection claim, we expressly acknowledged in a 1992 en banc case, United States v. Taylor, that an equal protection claim could be based upon evidence that law enforcement officers targeted minorities for consensual interviews on the basis of race. 956 F.2d 572, 578-79 (6th Cir.) (en banc), cert. denied, 506 U.S. 952, 113 S.Ct. 404, 121 L.Ed.2d 330 (1992). The Taylor court explained:

A review of ... the briefs and arguments of counsel before the trial court and initially before this

court[ ] disclosed no charge that the appellant ... had been selected for a consensual interview

542

because he was an African American, that the law enforcement officers at the *542 Memphis

Airport implemented a general practice or pattern that primarily targeted minorities for consensual

interviews, or that they had incorporated a racial component into the drug courier profile. A

factually supported record of such charged official conduct in the instant case would have given

rise to due process and equal protection constitutional implications cognizable by this court.

Id. (emphasis added). We think this statement demonstrates that, at least by 1992, it was clearly established that the Constitution prohibited racial targeting in law enforcement investigations, regardless of whether an encounter was lawful under the Fourth Amendment.

Moreover, even before Taylor, we had applied the selective enforcement framework to a criminal defendant's claim that he was improperly selected for a prior-felonies-background check after his arrest. Anderson, 923 F.2d at 453. The claim advanced in Anderson closely resembles the plaintiffs' claim in the instant case insofar as both claims involve allegedly discriminatory police motives for pursuing a particular course of investigation of a

suspect who is already in police detention. Although we did not find a selective enforcement violation in Anderson, our discussion in that case left little doubt that we would have permitted the claim had the defendant been able to satisfy his burden under the Supreme Court's selective enforcement test. Id. (citing Wayte, 470 U.S. at 608 n. 10, 609, 105 S.Ct. 1524). We think Anderson demonstrates that any ambiguity in the law of selective enforcement before Travis was confined to the limited factual context of consensual police encounters. Since we have already determined that the consensual airport encounter cases are inapposite to the instant case, we conclude that any ambiguity in the law relating to consensual encounters before the Travis opinion does not justify granting qualified immunity to Trooper Kiefer.
Furthermore, as we have already observed, for a right to be clearly established, "it need not be the case that `the very action in question has been previously held unlawful.'" Russo, 953 F.2d at 1042 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). Rather, the pre-existing law must be such that existence of the right is apparent. See id. In this vein, we have recognized that "[i]t is a venerable rule under the Equal Protection Clause that the state may not choose to enforce even facially neutral laws differently against different portions of the citizenry solely out of an arbitrary desire to discriminate against one group." Stemler, 126 F.3d at 874; see also Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ("Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution."). This principle has long been held to condemn selective prosecution of suspected offenders based upon their membership in a particular group. See generally Wayte, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547. We conclude, therefore, that a reasonable officer at the time of the events in question would have known that the Constitution forbade embarking on an investigation of someone for a particular offense on the basis of that person's race.
In conclusion, we determine that the facts alleged by the plaintiffs would, if proved, establish that Kiefer violated 543 their rights under the Equal Protection Clause by targeting them for immigration-related *543 questioning on the
basis of their race. Moreover, we think that the relevant legal principles controlling this case were clearly established at the time of the defendant's actions. We therefore conclude that the district court correctly denied Trooper Kiefer's motion for summary judgment on his defense of qualified immunity with respect to the plaintiffs' equal protection claims.
D. Detention of the Plaintiffs' Green Cards
Trooper Kiefer next appeals the district court's denial of his motion for summary judgment based on his qualified immunity defense to the plaintiffs' Fourth Amendment claim, which alleged that Kiefer's four-day detention of the plaintiffs' green cards was unreasonable. The court found that Trooper Kiefer's initial seizure of the plaintiffs' green cards was lawful, because the plaintiffs' confusing answers to Trooper Kiefer's questions about whether they had "paid for" the green cards gave rise to reasonable suspicion 0907 but not probable cause to believe 0907 that the cards had been forged. The court concluded, however, that Trooper Kiefer's failure to return the green cards changed the nature of the seizure from a brief investigative detention that could be based upon mere reasonable suspicion to a full seizure that could be justified only by probable cause. Because Trooper Kiefer did not have probable cause for such a seizure, the court concluded that his actions were unreasonable under the Fourth Amendment. The district court further determined that no material facts were in dispute regarding this claim, and consequently granted summary judgment to the plaintiffs. On appeal, Trooper Kiefer requests that we reverse the district court's denial of qualified immunity, or "[i]n the alternative, ... dismiss Plaintiff's claims on the merits." Appellant's Br. at 19.
1. The Constitutional Violation
The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The text of the Fourth Amendment therefore extends protection against unreasonable seizures of personal property, i.e., "papers[ ] and effects," as well as seizures of the person. United States v. Place, 462 U.S. 696, 700-01, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); United States

v. Jacobsen, 466 U.S. 109, 120-21, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (concluding that detention of package sent through private carrier was "seizure" subject to Fourth Amendment reasonableness requirement). In general, like seizures of the person, seizures of personal property require probable cause. As the Supreme Court has explained:
In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.
Place, 462 U.S. at 701, 103 S.Ct. 2637 (citations omitted). As is the case with brief investigative detentions of the person, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), however, the Supreme Court has 544 recognized that some *544 brief detentions of personal effects may be permitted based upon reasonable suspicion falling short of probable cause, provided that such detentions are "minimally intrusive." Place, 462 U.S. at 706, 103 S.Ct. 2637 ("[S]ome brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime."); see also United States v. Saperstein, 723 F.2d 1221, 1231 (6th Cir.1983) (explaining that "seizures of personal effects when based on anything less than probable cause" are permitted only to the extent that they satisfy the standards for reasonableness applicable to "Terry-type investigative detention[s]"); United States v. Sanders, 719 F.2d 882, 886 (6th Cir.1983). In his brief on appeal, Trooper Kiefer does not challenge the district court's ruling that he did not possess probable cause to seize the plaintiffs' green cards.[8] The relevant question, therefore, is whether the seizure of the plaintiffs' green cards satisfied the standards for Fourth Amendment reasonableness applicable to seizures of personal property based upon less than probable cause.
Determining whether a seizure of personal property based upon less than probable cause is reasonable for the purposes of the Fourth Amendment involves a two-step inquiry. "First, the Court must determine whether the detaining officer has a reasonable and articulable suspicion that the property he wishes to seize is connected with criminal activity." Sanders, 719 F.2d at 887. Second, the scope of the seizure must be reasonable, both in duration and in intrusiveness. Place, 462 U.S. at 709, 103 S.Ct. 2637; Sanders, 719 F.2d at 887 ("If there is reasonable suspicion, the Court must then ascertain whether the detention is reasonable, that is, (1) was it sufficiently limited in time, and (2) were the investigative means used `the least intrusive means reasonably available.'" (quotation omitted)). "Although an officer may have reasonable suspicion to detain a person or his possessions for investigation, the officer's investigative detention can mature into an arrest or seizure if it occurs over an unreasonable period of time or under unreasonable circumstances." Avery, 137 F.3d at 349. In the instant case, the plaintiffs concede that Trooper Kiefer had reasonable suspicion to believe that their green cards were 545 forged. They contend, however, that the seizure of their green cards exceeded the *545 legitimate scope of a seizure of property based upon less than probable cause, because Trooper Kiefer detained the cards for four days before they were returned. We agree.
The Supreme Court has previously emphasized that "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether [a] seizure [of personal property] is so minimally intrusive as to be justifiable on reasonable suspicion." Place, 462 U.S. at 709, 103 S.Ct. 2637. In Place, DEA agents seized a traveler's suitcase in an airport based upon facts giving rise to a reasonable suspicion that the suitcase contained narcotics. When the traveler refused to consent to a search of his luggage, the agents decided to hold the luggage while they awaited the arrival of a drug-sniffing dog. The agents allowed the traveler to leave. After the agents had held the luggage for ninety minutes, the dog arrived and "alerted" that the luggage contained narcotics, thereby supplying probable cause for a search. See id. at 699-700, 103 S.Ct. 2637. The Court concluded, however, that the ninety-minute detention of the luggage prior to establishing probable cause was unreasonable. The Court explained that "[t]he length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause." Id. at 709, 103

S.Ct. 2637. In reaching this conclusion, the Court "reject[ed] the Government's suggestion that the point at which probable cause for seizure of luggage from the person's presence becomes necessary is more distant than in the case of a Terry stop of the person himself." Id. at 708, 103 S.Ct. 2637. The Court acknowledged that, in some circumstances, seizures of property may be less intrusive than seizures of persons, but concluded that this is not the case when the police detain luggage in an airport traveler's immediate possession. The Court explained that "such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return." Id. Therefore, the Court found that the agents' seizure of the luggage should be subjected to the same standards of reasonableness that are applied to investigative detentions of the person. Id. at 709, 103 S.Ct. 2637. Noting that "we have never approved a seizure of the person for the prolonged 90 minute period involved here," the Court concluded that it "[could] not do so on the facts presented by this case." Id. at 709-10, 103 S.Ct. 2637.
Rather than adopt a per se time limitation for seizures based upon less than probable cause, however, the Supreme Court has consistently "emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes." United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); see also Place, 462 U.S. at 709-10, 103 S.Ct. 2637. "Much as a `bright-line rule' would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." Sharpe, 470 U.S. at 685, 105 S.Ct. 1568; see also Place, 462 U.S. at 709, 103 S.Ct. 2637 ("[I]n assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation."). Accordingly, the Place Court relied heavily upon the fact that the agents had advance notice of the defendant's arrival, and thus "had ample time to arrange for their additional investigation ... and thereby could have minimized the intrusion on 546 respondent's Fourth Amendment interests," but failed do so. Place, 462 U.S. at 709, 103 *546 S.Ct. 2637. The Place Court further observed that the Fourth Amendment "violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion." Id. at 710, 103 S.Ct. 2637.
Turning to the the instant case, we conclude that the facts presented by the plaintiffs are sufficient to show that Trooper Kiefer's four-day detention of the plaintiffs' green cards based upon mere reasonable suspicion was unreasonable in duration. Both the Supreme Court and this circuit have found property seizures of much shorter duration than the four days presented herein to be unreasonable when based upon less than probable cause. See, e.g., Place, 462 U.S. at 709, 103 S.Ct. 2637 (holding ninety minutes excessive); Saperstein, 723 F.2d at 1233 (holding 13½ hour seizure of luggage at airport was unreasonable under standards for investigative detentions); Sanders, 719 F.2d at 887 (holding three to four hour detention of luggage unreasonable). As was the case in Place and in the cases from this circuit involving seizures of luggage from travelers, we think that Trooper Kiefer's seizure interfered with both the plaintiffs' possessory interests in the green cards and their liberty interests in continuing uninterrupted with their travels. The plaintiffs' green cards were seized from them while they were traveling from their home in Chicago to Toledo to visit relatives. Moreover, "`[g]reen cards' play a significant role in the daily lives of [lawful permanent resident aliens]." Etuk v. Slattery, 936 F.2d 1433, 1437 (2nd. Cir.1991). Failure to carry one's green card on his or her person can subject a legal resident alien to criminal sanctions, 8 U.S.C. § 1304(e), and green cards are an essential means by which resident aliens can establish eligibility for employment and participation in federally funded programs. See Etuk, 936 F.2d at 1437 (discussing relevant statutory provisions). Given the importance of these documents, the challenged seizure undoubtedly subjected the plaintiffs to disruption of their travel plans in order to remain with the documents or arrange for their return. Accord Place, 462 U.S. at 708, 103 S.Ct. 2637; United States v. Baro, 15 F.3d 563, 567 n. 1 (6th Cir.) (holding that seizure of traveler's cash was "tantamount to a seizure of his person" where officer presented traveler with "a Hobson's choice: abandon more than $14,000 to a plain-clothed stranger without obtaining a receipt in return or miss his flight, forfeit his plane ticket, and remain stranded in foreign environs"), cert. denied, 513 U.S. 912, 115 S.Ct. 285, 130 L.Ed.2d 201 (1994). Although Aguilar and Esparza were traveling by car, and therefore may have had more flexibility in their itinerary than an air traveler who must catch a plane, we think this added flexibility was not so great as to permit a four-day disruption of their travel plans.
Moreover, the facts alleged by the plaintiffs sufficiently demonstrate that the length of the detention was excessive in light of "the law enforcement purposes to be served by the stop as well as the time reasonably

needed to effectuate those purposes." Sharpe, 470 U.S. at 685, 105 S.Ct. 1568. Although we decline to set a definitive time limit, we agree with the district court that reasonable suspicion would permit Trooper Kiefer to detain the green cards no longer than until the following day, when they could be verified by the INS.[9] Trooper 547 Kiefer has not articulated *547 any reason why a longer detention would have been necessary. The undisputed facts indicate that the INS could be reached to verify the authenticity of the plaintiffs' green cards on the Monday following the initial stop. By waiting for four days to return the plaintiffs' green cards, Trooper Kiefer failed to "diligently pursue [his] investigation." Place, 462 U.S. at 709, 103 S.Ct. 2637. The unreasonable nature of the seizure was exacerbated by the undisputed fact that Trooper Kiefer "did not make clear to the plaintiffs how long the documents would be held or when or how he would return them to plaintiffs if they proved authentic."[10] J.A. at 210 (Sep. 8, 1999, Order at 14); accord Place, 462 U.S. at 710, 103 S.Ct. 2637 (pointing to similar facts in finding detention of luggage unreasonable).
Contrary to Trooper Kiefer's assertion, Fox v. Van Oosterum, 176 F.3d 342 (6th Cir.1999), does not require a holding in his favor. In Fox, the plaintiff brought a § 1983 action against county officials, alleging that they acted unreasonably in refusing to return his driver's license, which had been seized during a valid inventory search of the plaintiff's truck. Id. at 345. The plaintiff in Fox never challenged the initial seizure of his license. Rather, he contended that an unreasonable seizure occurred when county officials refused his request, four months after the initial seizure, that the license be returned. Id. at 349. We concluded that the challenged action 0907 the refusal to return the license 0907 was not a "seizure" for the purposes of the Fourth Amendment, because the seizure had been completed long before the date of his request. Id. at 350. The court explained that "`a seizure of property ... occurs when there is some meaningful interference with an individual's possessory interests in ... property,'" and that the seizure of the plaintiff's driver's license ended once the act of taking his property was complete. Id. at 350 (quoting Soldal v. Cook County, Ill., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (additional quotation omitted)). Once the county officials had seized and stored the license for a number of months, the plaintiff had already been completely dispossessed of his possessory interests in the license, and the seizure was complete.
The defendant's reliance on Fox in the instant case is misplaced. Unlike the plaintiff in Fox, the plaintiffs in the instant case have alleged facts showing that the initial seizure of their green cards was constitutionally defective because it exceeded the permissible scope of investigative detentions based upon less than probable cause. The 548 Fox case did not consider the central issue presented in the instant *548 case 0907 namely, the permissible scope of a Terry seizure of an individual's personal effects. As explained above, this is an inherently time-sensitive inquiry. In Fox, the initial seizure resulted from a valid inventory search of the plaintiff's truck, which had been impounded after his arrest; it was not a Terry seizure based upon reasonable suspicion only. Moreover, the plaintiff in Fox conceded the constitutionality of the county's detention of his license for the four months that preceded his request for its return. It is hardly surprising, therefore, that the Fox court concluded that the county's continued detention of the license beyond that time did not "change[ ] the character of the [original] seizure from a reasonable one to an unreasonable one." Id. at 350. In contrast, we have concluded that Trooper Kiefer's fourday delay transformed the character of the seizure from a relatively brief investigative detention, which could be justified by mere reasonable suspicion, to a full-blown seizure requiring probable cause. The Fox court distinguished Place, which more closely resembles the instant case, on precisely these grounds:
The Place Court provided a framework for analyzing when law enforcement agents may hold someone's property for a very short time on less than probable cause to pursue a limited course of investigation. The instant case involves an alleged "seizure" that occurred well after the point in time where Place is directly relevant. The plaintiff here is not challenging any action of the defendants until over four months after the plaintiff's license was removed from a vehicle pursuant to an inventory search, inventoried, and stored.
Id. at 351 n. 6. Were we to accept the defendant's interpretation of Fox, law enforcement officers would be able to detain indefinitely an individual's property based upon reasonable suspicion alone. Such an interpretation is wholly inconsistent with the Supreme Court's clear instruction that courts look to the duration of investigative detentions of personal property to determine whether such detentions are sufficiently "minimally intrusive" to be permissible based upon reasonable suspicion falling short of probable cause. Place, 462 U.S. at 709, 103 S.Ct. 2637.

We also find unpersuasive the defendant's contention that the concept of a "continuing seizure" was rejected by the Supreme Court in California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Hodari D. merely explained that if a suspect flees after an initial seizure, the seizure does not continue throughout the subsequent pursuit. See id. ("To say that an arrest is effected by the slightest application of physical force, despite the arrestee's escape, is not to say that for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity." (emphasis in original)). Hodari D. addresses situations where physical control over a suspect is established, and then lost. It does not stand for the proposition that a seizure ends at the instant that physical control is initially established, no matter how long a government official retains physical control of the suspect thereafter.
2. Whether the Relevant Law Was Clearly Established
We further conclude that the rights asserted by the plaintiffs were clearly established at the time of the challenged detention. United States v. Place, upon which the plaintiffs' claims rely, was decided in 1983, twelve years before the events in question. We think that case was sufficient to put a reasonable officer on notice that the seizure for 549 four days of important personal effects from a traveler on the public roads would violate the *549 Fourth Amendment if based upon less than probable cause.
In sum, we conclude that the agreed-upon facts of this case reveal that the four-day detention of the plaintiffs' green cards based upon less than probable cause was unreasonable. Therefore, we determine that the district court properly denied Trooper Kiefer's motion for summary judgment based upon his claim of qualified immunity. [11]
3. The Grant of Summary Judgment to the Plaintiffs
Ordinarily, we would conclude our review after determining whether the defendant was entitled to qualified immunity, and we would decline to address the district court's grant of partial summary judgment to the plaintiffs. This is an interlocutory appeal. As explained above, we have jurisdiction to hear the instant appeal because a denial of summary judgment based on "the legal question of qualified immunity" is an immediately appealable order under the "collateral order" doctrine. Mattox, 183 F.3d at 519. In contrast, "a partial summary judgment on the issue of liability alone is not a `final decision' under 28 U.S.C. § 1291," nor does such an order qualify as an immediately appealable collateral order. Brennan v. Township of Northville, 78 F.3d 1152, 1157 (6th Cir.1996). Therefore, we would not normally have jurisdiction to consider an interlocutory appeal of the district court's grant of partial summary judgment to the plaintiffs on their Fourth Amendment claims.
Under the doctrine of pendent appellate jurisdiction, however, a court of appeals may, in its discretion, "exercise jurisdiction over issues that are not independently appealable when those issues are `inextricably intertwined' with matters over which the appellate court properly and independently has jurisdiction." Chambers v. Ohio Dep't of Human Servs., 145 F.3d 793, 797 (6th Cir.), cert. denied, 525 U.S. 964, 119 S.Ct. 408, 142 L.Ed.2d 331 (1998) ; see also Brennan, 78 F.3d at 1157. "We have interpreted `inextricably intertwined' to mean coterminous with, or subsumed in, the claim before the court on interlocutory appeal." Hadix v. Johnson, 228 F.3d 662, 669 (6th Cir.2000) (quotation omitted). In Brennan, we applied the pendent appellate jurisdiction doctrine in circumstances analogous to those presented here. In that case, the plaintiff brought a § 1983 claim against the city and individual city officials claiming that he unconstitutionally was detained for twenty-two hours without an arraignment. The district court denied the individual defendants' motion for summary judgment based upon qualified immunity. Finding no genuine dispute of fact concerning this claim, the district court also granted partial 550 summary judgment to the plaintiff on *550 the issue of liability. Brennan, 78 F.3d at 1154. We reversed after concluding that the facts, even when viewed in the light most favorable to the plaintiff, did not establish a violation of the plaintiff's constitutional rights. Id. at 1156. We went on to review the district court's partial grant of summary judgment to the plaintiff against the city. We noted that, although partial summary judgment is not a final decision subject to review, "[t]his case presents a special situation ... in which the issues of liability and qualified immunity are so related to each other that we can dispose of them together under the doctrine of pendent appellate

jurisdiction." Id. at 1157. We concluded that pendent appellate jurisdiction was appropriate because our determination that the plaintiff had not alleged facts showing a constitutional violation "necessarily and unavoidably decide[d]" the issue of whether the plaintiff was entitled to summary judgment. Id. at 1158. We observed that the exercise of pendent appellate jurisdiction under such circumstances best served "the interest of judicial economy," since any further proceedings on the plaintiff's claim would be a waste of judicial resources once it was determined that he could not show a constitutional violation. Id.
Guided by the foregoing principles, we think it is appropriate to exercise our pendent appellate jurisdiction to address the district court's grant of partial summary judgment to the plaintiffs on the issue of Fourth Amendment liability. In reviewing the issue of qualified immunity, we have determined that the agreed-upon facts of the instant case demonstrate that Trooper Kiefer violated the plaintiffs' Fourth Amendment rights by detaining their green cards for four days without probable cause. Where, as here, the parties do not dispute the underlying facts, this determination necessarily subsumes the merits of the plaintiffs' constitutional claim.[12] In his brief, Trooper 551 Kiefer admits that he "does not dispute the facts found by the District Court."[13] Appellant's Br. at 5. A review *551 of the record confirms that the parties are in complete agreement as to the underlying facts relating to the seizure and detention of plaintiffs' green cards. Having determined that these facts show a violation of the Fourth Amendment, there is nothing left for us to resolve concerning the district court's grant of summary judgment to the plaintiffs on the issue of liability. Thus, in the instant case, as in Brennan, "the issues of liability and qualified immunity are so related to each other that we can dispose of them together under the doctrine of pendent appellate jurisdiction." Id. at 1157.
Our decision here is compelled by the interests of judicial efficiency underlying the pendent appellate jurisdiction doctrine. See id. at 1158. A subsequent appeal of the district court's partial grant of summary judgment following a trial to determine damages would only waste judicial resources. Any future appeal of the liability issue would be decided based upon the same record that is before us. We see little benefit, therefore, in postponing judgment on this question. Consequently, we exercise our pendent appellate jurisdiction and affirm the district court's decision granting the plaintiffs' motion for summary judgment on the issue of Fourth Amendment liability.
In sum, we conclude that the undisputed facts reveal that Trooper Kiefer violated the plaintiffs' clearly established rights by detaining their green cards for over four days without probable cause. We therefore affirm the district court's denial of summary judgment to defendant Kiefer, as well as the district court's decision granting partial summary judgment to the plaintiffs.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court's denial of Trooper Kiefer's motion for summary judgment as to his defense of qualified immunity. Furthermore, we AFFIRM the district court's grant of partial summary judgment to plaintiffs on the issue of Fourth Amendment liability and REMAND for further proceedings consistent with this opinion.
KENNEDY, Circuit Judge, dissenting.
This appeal deals only with officer Kiefer's individual liability to plaintiffs Esparza and Aquilar for events that occurred after a traffic stop for a burned-out headlight. Thus, while the plaintiffs' claims are made as a part of a class action, Kiefer is liable to plaintiffs only for his acts in this incident.
Plaintiffs do not question the legitimacy of the initial traffic stop. They do not claim they were stopped because of their race. Nor do plaintiffs challenge the propriety of the drug search of their vehicle. The inquiry as to their immigration status and green cards did not arise until after a drug dog had alerted to their vehicle. At that time, plaintiff Aquilar was in defendant's cruiser where Kiefer was checking Aquilar's Illinois driver license and registration. After the dog alert, a second officer asked passenger Esparza, who was still in Aquilar's vehicle, for her identification and brought her to Kiefer's cruiser. Thereafter, Kiefer asked plaintiffs for Aquilar's green card and where they had gotten their green cards. The facts are in dispute as to just what plaintiffs said. Both plaintiffs 552 spoke very little English. Defendant states that plaintiffs said they paid for their green cards. Plaintiffs state *552 they said they paid all the necessary fees for their green cards. The district court appears to have accepted the

defendant's version of what was said. For plaintiffs' equal protection claim, it makes little difference since the discrimination they complain of is the inquiry about their immigration status 0907 "that Officer Kiefer targeted them for investigation regarding their immigration status solely on the basis of their being Hispanic."
Kiefer moved for summary judgment on plaintiffs' equal protection claim on the ground that the undisputed facts show that he had a racially neutral reason for inquiring about plaintiffs' immigration status; namely, their difficulties in speaking and understanding English.
He also moved for summary judgment on plaintiffs' Fourth Amendment claim, asserting that he seized their green cards when they responded to his question as to where they got the green cards with the response that they paid for them. This led him to the conclusion they were obtained illegally. The possession of illegal identification is a crime under Ohio law. He also asserts this is a race neutral reason for their seizure.
While it is unclear whether the court rejects the inability to speak English as race neutral, if it does then it should affirm the summary judgment for plaintiffs since it is the race neutral basis relied on by Kiefer for his inquiry.
The majority, while not rejecting the inability to speak and understand English as a race neutral reason, declines to apply our decision in United States v. Travis, 62 F.3d 170 (6th Cir.1995), cert. denied, 516 U.S. 1060, 116 S.Ct. 738, 133 L.Ed.2d 688, in which we acknowledged that "consensual searches may violate the Equal Protection clause when they are initiated solely based on racial considerations." Travis placed the burden on plaintiffs to show that no race neutral motives played a role in the challenged police conduct. Travis, 62 F.3d at 173-74 (explaining that when officers "decide to interview a suspect for many reasons, some of which are legitimate and some of which [are] based on race ... the use of race in the pre-contact stage does not give rise to any constitutional protections."). While Travis deals with an equal protection challenge to consensual police interviews of airport travelers, and here we are dealing with questions to persons whose continued detention is because there is probable cause to believe they are transporting illegal drugs, the inquiry here, if anything, is less intrusive 0907 a mere request to see another item of identification rather than a consensual search.
Further, it is an inquiry which must be made were the officers to arrest plaintiffs since the arrest of an alien requires the arresting officers to notify the alien's consulate under the Vienna Convention on Consular Relations April 25, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820. Also OHSP policy # 9-902.08 requires special steps where an alien is arrested. These requirements apply without regard to the race of the alien. While there ordinarily may be no reason to inquire about immigration status in conjunction with a traffic stop, which ordinarily does not result in an arrest but rather a traffic citation, a broader inquiry is justified for a drug investigation which is likely to result in an arrest. While some other officer is searching the vehicle, I would hold that an officer could further investigate the identity of the driver and passenger and the likelihood of their being from a nation that is a known drug source. Nowhere is it clearly established that the officers must wait until they find the drugs before they may 553 inquire further regarding suspects whose difficulty in speaking English suggests they may be *553 aliens. This is not a case where the police initiated the investigation based on race.
Whether Travis was correctly decided or whether it should continue to be followed, I believe it is sufficient to entitle Kiefer to qualified immunity in the action against him individually for damages. I would, therefore, reverse the denial of qualified immunity on this issue.
A recurring problem in this appeal is that the district court wrote no separate opinion dealing with plaintiffs' claims against Kiefer individually. The district court's opinions dealt with other defendants as well as with class claims. Thus, in describing discriminatory conduct, neither the district court nor the majority limit their recitation of the facts to Kiefer's conduct with respect to plaintiffs. Kiefer is not personally liable for another's conduct. There is no claim he supervised other defendants. I am at a loss to understand how Kiefer's intent can be inferred from Sergeant Elling's or Trooper Pache's conduct or that of other OSHP officials.
In rejecting Travis, the majority would adopt a standard shifting to the defendant the burden of establishing that the same decision would have resulted even if the impermissible purpose had not been considered, relying on Wayte and Armstrong. The effect of the majority's holding would greatly diminish the protection of qualified immunity in equal protection claims. It would be a rare case involving a minority where plaintiff could not assert an issue of fact as to an officer's intent no matter how strong the non-discriminatory motive may be. I assume the

majority would apply the same balancing to cases where there is probable cause as well as to the investigative stop we have here. The balancing would require officers engaged in an investigation to make, at their peril and at every step, a decision as to whether they would pursue their present course of investigation if they had no discriminatory motive. They may or may not be thinking of the discriminatory motive at the time. And keep in mind that it is not whether this officer would or would not act the same. To be prudent the officer must consider what a jury would be likely to conclude 0907 and all this would need to be done on the spot 0907 perhaps in seconds. The question of what plays a determinate role is not one easily decided.

Confronted by a related problem in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), where an officer engaged in law enforcement was alleged to have mixed motives in stopping a vehicle but had probable cause to do so, the Court held that if the officer had probable cause to stop the vehicle, the Court would not inquire whether the officer had another motive.

Although the court left open the question of whether Whren's holding would apply if challenged on equal protection grounds, it would be a trap for the unwary if the officer were subject to a suit for damages after he or she arrested someone with probable cause and a jury concluded the officer had not proved he would have made the arrest except for a discriminatory purpose. I believe there is the same need for the Whren analysis in equal protection claims, a holding that an officer may arrest with probable cause and that the court will not examine whether the officer also had a discriminatory purpose.

In Whren, recognizing that the Court had been unwilling to entertain Fourth Amendment challenges based on individual motivation of officers, petitioners had sought a standard as to what a reasonable officer would have done under same circumstances. In rejecting that standard, the Court stated:

554

the Fourth Amendment's concern with "reasonableness" allows certain actions *554 to be taken in

certain circumstances, whatever the subjective intent. See, e.g. [United States v. Robinson, 414

U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)].

Whren, 517 U.S. at 814, 116 S.Ct. 1769.

Elsewhere in its opinion, the Court characterized Robinson, holding as follows:

We described Robinson as having established that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." 436 U.S. at 136, 138, 98 S.Ct. at 1723.

Id. at 813, 116 S.Ct. 1769 (quoting Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)).

The Court found no need to do a balancing analysis except for cases conducted in an extraordinary manner, harmful to a person's privacy or physical interest. While the Court pointed out,

But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.

Id. at 813, 116 S.Ct. 1769, it would be anomalous and a trap for the unwary to tell police officers they could arrest with probable cause without regard to motivation but they would be liable for damages for the same conduct under the equal protection clause unless they could prove to a jury they would have done the same without the discriminatory motive. There is no reason to believe that the Court would reject its holding that probable cause to believe the law has been broken "outbalances" private interest in avoiding police contact.

I must also respectfully dissent from the majority's disposition of plaintiffs' Fourth Amendment claim. I do not believe we have jurisdiction to decide defendant's appeal since there is a material fact in dispute. Defendant has not accepted for the purpose of this appeal plaintiffs' assertion that they told Kiefer they had paid all the necessary fees, rather than, as asserted by Kiefer, that they paid for their green cards. If the jury believed plaintiffs' testimony, no retention after the drug investigation ended was permissible because there would have been no basis for a reasoned suspicion that the cards were counterfeit, invalid, or illegally obtained and therefore

contraband under Ohio law. Under Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), the court of appeals may not review an interlocutory appeal on the grounds of qualified immunity where there are material issues of fact unresolved. I would dismiss the Fourth Amendment portion of the appeal for that reason.
We review defendant's motion for summary judgment de novo. In the district court, Kiefer argued that he had probable cause to seize the cards in view of the plaintiffs' admission that they had paid for the cards. The district court found only a reasonable suspicion to seize the cards. While defendant accepted the factual findings of the district court, probable cause is not a fact but a legal issue reviewed de novo, Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), or at least a mixed question where the legal issues are reviewed de novo by the appellate court. Kiefer has continued to argue in his brief on appeal that he lawfully seized the cards. If we accept as fact that plaintiffs said they "paid for the cards," I would hold he had probable cause to 555 seize the cards. Even if Kiefer erred in concluding that probable cause existed to *555 seize the cards, he would be entitled to qualified immunity because his conclusion was reasonable, if mistaken. Hunter v. Bryant, 502 U.S. 224, 228, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The cards would be contraband under Ohio law since they would be forged if not lawfully issued to plaintiffs.
Possession of a writing known to be forged with the purpose to utter or uttering an identification card is a crime under Ohio law. CRC §§ 2901.01(m), 2913.32 and 2933.42. The green card is clearly an identification card. Kiefer knew that green cards are not legally bought and paid for. He had plaintiffs' admissions that their cards had been paid for. Clearly the cards were possessed with the intent to use them as identification. The cards were evidence of the suspected crime. They could easily be destroyed if not retained. As the district court recognized, Ohio State Highway Patrol troopers are entitled to seize forged documents. (J.A. 205)
As the Court stated in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983):
[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949).
Id. at 742, 103 S.Ct. 1535.
If the cards were legally seized on this basis, the continued retention of the green cards does not constitute a separate Fourth Amendment seizure. Fox v. Van Oosterum, 176 F.3d 342 (6th Cir.1999).[1]
If I am in error and there was no probable cause to seize the cards, then I agree that United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) was the controlling-established law and the cards were required to be returned after the search for drugs was completed.
Finally, I do not believe we should apply the doctrine of pendent appellate jurisdiction and affirm the grant of summary judgment to plaintiffs for at least three reasons. First, the parties have been given no opportunity to brief the issue. While plaintiffs asked that we review additional issues beyond defendant's qualified immunity, that motion was not granted.
Second, in granting summary judgment to plaintiffs, the court is foreclosing defendant Kiefer from appealing the issue of whether he had probable cause to seize the green cards. Judge Moore's opinion holds that in his brief on 556 appeal Kiefer does not challenge the district court's ruling that he *556 did not possess probable cause to seize the green cards and does not address the merits of that issue. Although Kiefer did not raise the issue specifically in his brief, he has not waived it explicitly either and has argued in his brief in chief that the cards could be seized as contraband, a status they could achieve only if there were probable cause for their seizure. It is patently unfair to grant summary judgment to plaintiffs without reviewing an issue they raised in the district court but may not have adequately raised on the limited appeal of a qualified immunity defense. In effect, the panel is requiring that

defendants appealing on qualified immunity must appeal all possible issues and if defendants fail to appeal an issue, judgment may be entered against them and they will be foreclosed from presenting that issue at trial.
Third, neither we nor the district court have clearly defined the boundaries of the constitutional violation. Judge Moore's opinion concludes that at least the retention of the cards beyond some time on Monday, when their validity could have been checked, violated the Fourth Amendment. If the violation is controlled by Place, and there was no probable cause, it seems to me that retention of the green cards after finding no drugs and permitting plaintiffs to be on their way completed the constitutional violation. A green card seems as closely related and important to a traveler as luggage and the Supreme Court held in Place that a seizure of drugs based on reasonable suspicion could not be extended 90 minutes to wait for the drug dog. The district court appears to hold that the retention for verification "would only be permissible under the Fourth Amendment if Trooper Kiefer made clear to plaintiffs how he planned to reunite them and the green cards and if retention was no longer than absolutely necessary to verify the documents." (J.A. 210) While the Court in Place held that "the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion." 462 U.S. at 710, 103 S.Ct. 2637, there is no suggestion that providing that information is constitutionally required or that, standing alone, the failure to give such information is a constitutional violation.
Also, while the district court seems to accept the officer's testimony that plaintiffs told them they paid for the cards, plaintiffs have not abandoned their claim that they told him they had paid the necessary fees. (App.Br.4) They maintain there was no reasonable suspicion justifying retention of the cards in light of that answer. If the jury believed they said "fees" or paid the fees, it could find there was no basis to retain the cards beyond the time taken for the drug investigation.[2]
In granting summary judgment to plaintiffs, the district court also held that Kiefer was required to give plaintiffs some kind of substitute card. I cannot agree that this requirement was clearly established or constitutionally required.
The court is granting summary judgment to both plaintiffs. The second officer, not defendant Kiefer, took the 557 green *557 card from Esparza. The record is unclear as to the relationship between defendant Kiefer and the
second officer. They appear to have arrived in separate vehicles, but even this is unclear. While Kiefer retained Esparza's card, he was not the one who seized it.
In view of the factual issues, the uncertainty as to the parameters of the Fourth Amendment violation, the lack of briefing, the denial of the ability to raise the probable cause issue on appeal of summary judgment for plaintiffs, even though he clearly did not waive it, I do not believe we should decide plaintiffs' motion for summary judgment on the Fourth Amendment claim. It seems to me that affirming summary judgment for plaintiffs on our own initiative requires more certainty than we have here. I do not see the issue that is inextricably intertwined in the issues properly before us.
[1] In this opinion, we address only Trooper Kiefer's claims on appeal. Although the Notice of Appeal refers to "all Defendants," Joint Appendix ("J.A.") at 258, the Appellants' brief discusses only Trooper Kiefer's defense of qualified immunity. We therefore decline to consider any appellate issues relating to the other defendants in this action. See Ahlers v. Schebil, 188 F.3d 365, 374 (6th Cir.1999) (explaining that issues not raised in briefs on appeal may be deemed waived).
[2] It was later determined that the dog had alerted in error, and that neither of the plaintiffs were carrying drugs.
[3] The dissent argues that we do not have jurisdiction to consider defendant's appeal on the Fourth Amendment issue because Trooper Kiefer has not accepted plaintiffs' version of the facts. We disagree. In his brief, Trooper Kiefer clearly states that he "does not dispute the facts found by the District Court." Appellant's Br. at 5. Morever, even if the parties were not in agreement on the facts, we still would have jurisdiction to decide the legal question of qualified immunity 0907 i.e., whether, assuming the plaintiffs' version of the facts to be true, the plaintiffs have shown a violation of their clearly established constitutional rights. Johnson merely establishes that we lack

jurisdiction over "a portion of a district court's summary judgment order that, though entered in a `qualified immunity' case, determines only a question of `evidence sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial." 515 U.S. at 313, 115 S.Ct. 2151. For example, we would not have jurisdiction over Kiefer's appeal if his argument were merely that the plaintiffs cannot prove that he seized their green cards. Such an "[I] didn't do it" defense would present a Johnson problem. Id. at 316, 115 S.Ct. 2151. Nevertheless, Johnson does not preclude our review of purely legal questions, such as whether a given set of facts alleged by the plaintiffs would demonstrate a constitutional violation.
[4] We note that the record contains no indication that the OSHP employs explicit racial criteria or admits to racially-motivated decision making. If such a showing could be made, the plaintiffs would not need to establish the existence of a similarly situated class that was not investigated. See Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.2000) ("[I]t is not necessary to plead the existence of a similarly situated non-minority group when challenging a law or policy that contains an express, racial classification."), cert. denied, ___ U.S. ___, 122 S.Ct. 44, 151 L.Ed.2d 16 (2001); cf. United States v. Ovalle, 136 F.3d 1092, 1104-05 (6th Cir.1998) (holding that it is unnecessary for criminal defendant to establish three-prong test for discrimination in grand jury selection where there is direct evidence of exclusion based upon race). "In its more recent pronouncements on laws based on racial classifications, the Supreme Court has started `from the premise that [l]aws that explicitly distinguish between individuals on racial grounds fall within the core of [the Equal Protection Clause's] prohibition.'" Ovalle, 136 F.3d at 1105 (quoting Miller v. Johnson, 515 U.S. 900, 905, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)). Where the state adopts explicit racial criteria, strict scrutiny will automatically be applied, even in the absence of evidence of discriminatory purpose. Wayte, 470 U.S. at 610 n. 10, 105 S.Ct. 1524; Hunt v. Cromartie, 526 U.S. 541, 546, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) ("When racial classifications are explicit, no inquiry into legislative purpose is necessary.").
[5] Since we decline to address the sufficiency of the plaintiffs' evidence to show the underlying factual elements of a selective enforcement claim, we likewise do not consider the propriety of the district court's partial grant of summary judgment to the plaintiffs on the issue of Fourteenth Amendment liability. We note, however, that even a cursory review of the record reveals, for example, that Kiefer and other OSHP officials deny selecting motorists for immigration interviews based upon Hispanic appearance. If a trier of fact believed this testimony, it would negate the intent element of plaintiffs' equal protection claim. The record contains other factual disputes as well. For example, Kiefer maintains in his deposition that only about half of the motorists he questions concerning immigration violations are Hispanic, which conflicts with the district court's determination that nearly all immigration investigations are initiated against Hispanic motorists. It seems apparent, therefore, that the record is not as one-sided as the district court believed. Thus, although we are without jurisdiction to review the court's grant of summary judgment to the plaintiffs on the Fourteenth Amendment issue, we do think the grant of summary judgment likely was premature, and we suggest that the district court reconsider this decision on remand. In any event, the defendant remains free to challenge the grant of summary judgment on the Fourteenth Amendment claim following a final order from the district court.
[6] The defendant also asserts in his reply brief that the alert of the drug-sniffing dog provided a race-neutral reason to inquire into immigration status and inspect resident alien cards. We think this argument is without merit. Lieutenant Healy of the TDIT admitted the presence of narcotics bears no rational relation to the likelihood that the drivers are illegal immigrants, and the defendant concedes this point in his reply brief. Appellant's Reply Br. at 3. Instead, the defendant contends that because the Vienna Convention requires foreign nationals to be informed of their right to communicate with a consular officer of their home country if they are arrested or imprisoned, the defendant had a racially-neutral reason to inquire into the plaintiffs' immigration status 0907 namely, to determine whether information consistent with the Vienna Convention needed to be given. This argument appears to have been raised for the first time in the defendant's reply brief on appeal, and it is not supported by any evidence in the record, so we decline to consider it. The defendant points to no evidence in the record to show that it is the practice of the OSHP to provide such information to arrested foreign nationals. Nor is there any evidence in the record that Trooper Kiefer considered the requirements of the Vienna Convention when deciding whether to pursue an investigation of the plaintiffs' immigration status.
[7] In his reply brief, Trooper Kiefer further suggests that United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), created uncertainty in the law as to whether it was appropriate to target

individuals for immigration inquiries based in part upon their Hispanic appearance. The Martinez-Fuerte Court held that it was not a violation of the Fourth Amendment for officials at a fixed border checkpoint selectively to refer motorists to a secondary inspection area, "even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry." Id. at 563, 96 S.Ct. 3074. We think this argument is unavailing to the defendant. Martinez-Fuerte was a Fourth Amendment case, not an Equal Protection case. The Court's decision in Martinez-Fuerte merely considered whether, for the purposes of the Fourth Amendment, the Border Patrol was required to articulate an individualized basis for suspicion beyond the motorists' apparent nationality to justify the stop. The Court's holding was based upon its conclusion that because the intrusion presented by the checkpoint stop was "sufficiently minimal[,] ... no particularized reason need exist to justify it." Id. The Court did not consider whether, if the Border Patrol relied upon racial or ethnic classifications in making the stop, such actions would violate the Equal Protection Clause. Consideration of this issue was rendered unnecessary by the Court's conclusion that the Border Patrol had offered conclusive evidence "to refute any suggestion that the Border Patrol relies extensively on apparent Mexican ancestry standing alone in referring motorists to the secondary area." Id. at 563 n. 16, 96 S.Ct. 3074. The Martinez-Fuerte Court, moreover, limited its holding to the particular circumstance of a checkpoint at the Mexican border, and noted that "[d]ifferent considerations would arise if, for example, reliance were put on apparent Mexican ancestry at a checkpoint operated near the Canadian border." Id. at 564 n. 17, 96 S.Ct. 3074. Given that the challenged stop occurred near Toledo, Ohio, a location much closer to the Canadian border than to the Mexican border, we think Martinez-Fuerte offers little support for Trooper Kiefer's argument.
[8] Judge Kennedy's dissent maintains that Trooper Kiefer did have probable cause to seize the green cards. The dissent points out that Trooper Kiefer argued that he had probable cause in the district court. Nevertheless, Kiefer did not renew that argument on appeal, and therefore has waived the argument. Nowhere in his opening brief or reply brief does Trooper Kiefer challenge the district court's determination that the facts gave rise to no more than reasonable suspicion that the green cards were forged. It is well established that an issue not raised in a party's briefs on appeal may be deemed waived. See Ahlers, 188 F.3d at 374. Although Trooper Kiefer does argue in his appellate briefs that the initial seizure of the green cards was valid, he bases this claim on the district court's conclusion that his seizure was supported by reasonable suspicion. On appeal, Trooper Kiefer's only argument is that once reasonable suspicion was established to justify the initial seizure, the Fourth Amendment placed no limits on the duration of the ensuing detention. If Trooper Kiefer desired to challenge this aspect of the district court's ruling, the instant appeal would have been the proper time to do so. The legal question of whether the undisputed facts demonstrate that Kiefer had probable cause to seize the plaintiffs' green cards is directly relevant to step one of the qualified immunity test, insofar as it relates to whether the plaintiffs have shown a constitutional violation under Place.
[9] Such a detention would still be considerably longer than the ninety-minute detention rejected in Place. It is unnecessary to consider whether Place imposes a shorter time limit on the challenged seizure, since Trooper Kiefer's detention of the plaintiffs' green cards was well in excess of the length of time the district court or we would approve.
The dissent argues that if the seizure of plaintiffs' green cards is controlled by Place, then the constitutional violation was complete as soon as the search of plaintiffs' vehicle was completed. For the purposes of the instant case, we think it is enough that the four-day length of detention at issue exceeded any acceptable time limit for a seizure based upon less than probable cause under these circumstances. We see no need to consider whether a shorter detention might also have violated the Fourth Amendment under Place. Both Place and Sharpe counsel against unnecessarily setting per se time limits on Terry-style seizures. We therefore decline to do so.
[10] We note that we do not mean to suggest that Trooper Kiefer's failure to provide plaintiffs with this information constitutes a per se Fourth Amendment violation. We simply hold that this factor enters into the totality of circumstances to be considered in deciding whether the seizure was more than minimally intrusive.
[11] Judge Kennedy's dissent voices concerns about a ruling by the district court, which allegedly held that Trooper Kiefer was required to provide the plaintiffs with a lawful substitute for their green cards. We are unable to locate any such ruling in the record. In its September 8, 1999, order granting summary judgment to the plaintiffs on their Fourth Amendment claims, the district court dissolved a preliminary injunction in which the court

had ordered OSHP officers to issue substitute documents when they seize green cards known to be valid. We are not aware of any order reinstating that injunction. Furthermore, even if such an order existed, the issue is not relevant to the instant appeal. The only issues before us are the specific constitutional claims of plaintiffs Aguilar and Esparza against Trooper Kiefer. In its September 8, 1999, order, the district court explained that its previous ruling concerning the necessity of issuing lawful substitutes did not apply to the claims of Aguilar and Esparza, because they made "no allegation that OSHP troopers seized green cards known to be valid." J.A. at 206.
[12] The dissent argues that a factual dispute still exists as to whether the plaintiffs told Trooper Kiefer that they had paid for the green cards or only that they had paid the necessary fees. Our review of the record, however, reveals that all parties agree on the substance of the conversation between Trooper Kiefer and the plaintiffs. There is no dispute that Trooper Kiefer asked the plaintiffs whether they had paid for their green cards or that the plaintiffs answered in the affirmative. The plaintiffs contend that they meant that they had paid the necessary fees; but they have never claimed that they specifically answered Kiefer's question by saying that they had only paid for processing fees. The only remaining question then is the legal question of whether this exchange gave rise to mere reasonable suspicion or to something more. The district court concluded that the plaintiffs' answers gave rise to no more than reasonable suspicion, given the plaintiffs' obvious difficulty understanding Kiefer's questions. Trooper Kiefer does not dispute this conclusion. Consequently, we disagree with the dissent's assertion that material disputes of fact remain with respect to this issue.
[13] We emphasize that this is not a case in which the defendant concedes to the plaintiff's view of the facts for the purposes of appeal only. We recognize that after Johnson, 515 U.S. at 313, 115 S.Ct. 2151, a defendant seeking interlocutory appeal of a denial of qualified immunity generally is well served to assume the correctness of the plaintiff's version of the facts for the purposes of appeal in order limit the appeal to the purely legal issue of qualified immunity. Such a limited concession obviously would not bind the defendant to the plaintiff's account of the facts. But this case is different; Trooper Kiefer did not merely assume the plaintiffs' version of the facts to be true for the purposes of appeal. The record makes clear that there is no dispute between the parties as to the material facts relating to the seizure and detention of the plaintiffs' green cards. Our decision to exercise our pendent appellate jurisdiction, therefore, is limited to the unique circumstances presented when, as here, the record clearly demonstrates that the only issue in dispute between the parties is the legal question of whether an officer's admitted conduct violates the Constitution.
[1] As we stated in United States v. Anderson, 923 F.2d 450, 457 (6th Cir.1991), "probable cause is determined by an objective examination of all of the circumstances known to the officers. Just as a subjective belief by the arresting officer would not establish probable cause where none existed, a subjective belief by the arresting officer cannot destroy probable cause where it exists." (citing Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1982)).
Our court went on to hold that "knowledge of the precise crime committed is not necessary to a finding of probable cause provided that probable cause exists showing that a crime was committed by the defendants." Id. at 457.
[2] It is unclear whether plaintiffs will be permitted to show that the officer was without basis to seize the green cards because they said they paid the fees 0907 not that they paid for the cards. Their damages may be different if there were no basis for seizing the cards. [Will defendant be precluded from arguing that the appearance of one of the cards made him question its validity? A fact he testified to in his deposition.]
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