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

United States of America, Plaintiff;
v. Alamance County, North Carolina and Terry S. Johnson, in his official capacity as Sheriff of Alamance County, North Carolina;
Defendants.

No. 11-cv-507 AMENDED COMPLAINT

Plaintiff, the United States of America, brings this civil action for a declaratory judgment, submits this Amended Complaint pursuant to Fed. R. Civ. P. 15(a)(1)(B), and alleges as follows: INTRODUCTION
1. The United States brings this action pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, to clarify the obligations imposed by Rule 4.2 of the North Carolina Rules of Professional Conduct (“Rule 4.2”), adopted by this Court pursuant to Local Rule 83.10e.
2. The United States seeks a declaration that Rule 4.2 permits the United States‟ attorneys to interview, outside the presence of Defendants‟ Counsel:1 (a) current Alamance County Sherriff‟s Office (“ACSO”) non-command staff; and (b) all former

1

Mr. Clyde B. Albright, Esq., the Alamance County Attorney, has represented

Defendants throughout the United States‟ investigation.

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ACSO employees (collectively, “current and former ACSO personnel”).2 3. The United States Department of Justice (“DOJ”) is currently conducting an
investigation of ACSO‟s police practices, including whether there is a pattern or practice of biased policing against Latinos in the County. Its investigation is authorized by law under Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d (“Title VI”), the pattern or practice provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d (“Safe Streets Act”), and the pattern or practice provisions of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”).
4. Interviews conducted outside the presence of Defendants‟ Counsel are an integral part of DOJ‟s investigation. Numerous current and former ACSO personnel have refused to cooperate with or expressed fear or concerns to the United States that Defendant Johnson or other County or ACSO officials will retaliate against personnel who cooperate with the United States‟ investigation. Interviews outside the presence of Defendants‟ Counsel are thus essential to the United States‟ ability to collect accurate information about the law enforcement practices employed by ACSO.
5. Defendants have repeatedly and publicly asserted that Rule 4.2 prohibits interviews of current or former ACSO personnel by the United States outside the

2

Whether the United States may properly interview ACSO command staff outside

the presence of ACSO counsel is not at issue here because the United States has

consented to conducting command staff interviews in the presence of Defendants‟

Counsel.

2

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presence of Defendants‟ Counsel. In the past, when Defendants have learned of contacts between DOJ attorneys and current or former ACSO personnel, they have strongly objected; they have excoriated DOJ in the press for allegedly violating their rights under Rule 4.2; and they have threatened to sue DOJ and DOJ attorneys.
6. Rule 4.2 permits DOJ attorneys to interview current and former ACSO personnel outside the presence of Defendants‟ Counsel during the United States‟ investigation of Defendants‟ police practices under Title VI, the Safe Streets Act, and Section 14141. Rule 4.2(a) provides that “a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” N.C. R. Prof. C. 4.2(a). Under this provision, interviews with ACSO personnel are appropriate for two independent reasons: (1) under Rule 4.2, the United States is “authorized by law” to conduct investigative interviews prior to commencing an action; and (2) current and former ACSO personnel are not represented parties to whom Rule 4.2 applies.
7. Absent a declaratory judgment, Defendants will continue to chill the speech of current and former ACSO personnel and threaten DOJ attorneys with disciplinary referrals if they continue to conduct interviews outside the presence of Defendants‟ Counsel.
8. A declaratory judgment by this Court is thus appropriate to clarify the Parties‟ rights and obligations under Rule 4.2. Such a judgment would forestall and perhaps
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avoid broader litigation and would allow the United States to unequivocally conform its investigatory practices to the requirements of Rule 4.2.
The United States, on information and belief, alleges: DEFENDANTS
9. Defendant Alamance County is a political subdivision of the State of North Carolina. Defendant Alamance County is governed by the Alamance County Board of Commissioners, which controls and administers County government and affairs. N.C. Gen. Stat. Ann. §§ 153A-34, 153A-76. Alamance County programs and activities receive federal financial assistance from DOJ.
10. Defendant Terry S. Johnson is the Sheriff of Alamance County and is responsible for the operation of ACSO, a law enforcement agency in Alamance County that receives federal financial assistance from DOJ, both directly and as a subrecipient of Alamance County and the City of Burlington. DEFENDANTS’ COUNSEL
11. The Alamance County Attorney (“Defendants‟ Counsel”) represents Alamance County in the United States‟ underlying civil rights investigation of ACSO. Pursuant to North Carolina law, Defendant Alamance County, by and through the Alamance County Board of Commissioners, appoints the Alamance County Attorney. The Alamance County Attorney acts as legal advisor to, and serves at the pleasure of, the Alamance Board of Commissioners. N.C. Gen. Stat. Ann. § 153A-114.
12. Throughout the United States‟ civil rights investigation of ACSO, Defendant 4
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Alamance County, by and through the Alamance Board of Commissioners, gave direction to, and received counsel from, the Alamance County Attorney regarding the investigation.
13. During the United States‟ investigation, the Alamance County Attorney also represented the Alamance County Sheriff, referring to him as “my client,” providing him with counsel in regard to the investigation, and writing letters to the United States and others on his behalf.
14. Throughout the United States‟ investigation of ACSO, until after the United States filed the instant lawsuit, the Alamance County Attorney represented the interests of both Defendants Alamance County Sheriff and Alamance County in the investigation.
15. The statements and actions of Defendants‟ Counsel throughout the United States‟ investigation therefore represented the interests of both Defendants.
16. Likewise, as counsel to Defendants, the Alamance County Attorney acted as an agent of Defendants throughout the United States‟ investigation. Defendants adopted and ratified as their own statements of Defendants‟ Counsel relating to the investigation.
17. The United States seeks declaratory relief against both Defendant Alamance County and Defendant Johnson because both Defendants, directly and through their counsel, have repeatedly and publicly asserted that Rule 4.2 prohibits interviews of current or former ACSO personnel by the United States outside the presence of
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Defendants‟ Counsel. JURISDICTION AND VENUE
18. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1345.
19. The United States is authorized to initiate this action under 28 U.S.C. § 2201(a) and seeks declaratory relief authorized by that section.
20. Venue is proper in the Middle District of North Carolina pursuant to 28 U.S.C. § 1391(b). Defendants reside in the Middle District of North Carolina, and a substantial part of the events or omissions giving rise to this claim occurred there. FACTS A. The United States’ Investigation of ACSO’s Alleged Civil Rights Violations
21. In November 2009, DOJ opened a preliminary inquiry into allegations that ACSO was engaged in a pattern or practice of discriminatory law enforcement activities. Based on this preliminary inquiry, DOJ determined that the matter warranted an investigation. DOJ has discretion to open investigations pursuant to its authority under Title VI, the Safe Streets Act, and Section 14141.
22. On June 2, 2010, the United States notified Defendants in writing that DOJ was initiating a formal investigation of ACSO regarding alleged discrimination pursuant to the above statutes. The United States informed Defendants that the investigation would focus on allegations of discriminatory policing and unconstitutional searches and seizures.
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23. Representatives of the United States and Defendants met in Graham, North Carolina on June 15, 2010, to discuss the logistics of the investigation. The United States explained that its investigation would involve extensive document review, interviews with ACSO command staff and line officers, and “ride-alongs” with line officers.
24. To date the United States has not filed a civil action against Defendants based on its investigation. B. DOJ Attorneys Confirmed the Propriety of ACSO Interviews Using Due
Diligence 25. Prior to seeking interviews with ACSO, DOJ attorneys used due diligence to confirm the propriety of interviewing current and former ACSO personnel outside the presence of Defendants‟ Counsel pursuant to Rule 4.2. 26. DOJ attorneys independently researched their obligations under Rule 4.2 and consulted with DOJ‟s Professional Responsibility Advisory Office (“PRAO”). 27. Pursuant to 28 C.F.R. § 0.129(b), PRAO is tasked with “[a]dvis[ing] Department of Justice attorneys on specific questions involving professional responsibility, including compliance with 28 U.S.C. § 530b . . . , which requires certain federal attorneys to comply with state rules of ethics.” 28 C.F.R. § 0.129(b)(1). 28. Accordingly, PRAO is informed about and familiar with the rules of professional responsibility of every U.S. state and territory, as well as the relevant
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interpretations of those rules. See 28 C.F.R. § 0.129(b)(2)-(3). 29. The United States has conducted its investigation and seeks relief here
consistent with a straightforward interpretation of Rule 4.2 and PRAO‟s guidance. C. Defendants Falsely Assert That the United States Cannot Interview Current
and Former ACSO Personnel Outside the Presence of Defendants’ Counsel 30. Since June 2010, Defendants have consistently sought to prevent the United
States from interviewing current or former ACSO personnel outside the presence of Defendants‟ Counsel, maintaining that any such contacts violate Rule 4.2. The United States has asked to go forward with interviews and proposed specific interview dates on four separate occasions. Defendants have denied access to ACSO personnel each time, either by ignoring requests for interviews, rebuffing the requests outright, or insisting that Rule 4.2 obligates the United States to conduct the interviews in the presence of Defendants‟ Counsel.
First Denial 31. At the June 15, 2010, meeting, the United States informed Defendants that it planned to conduct two week-long visits to ACSO in July and August 2010 in order to interview ACSO command staff and line officers. On July 9, 2010, the United States confirmed in writing that it had selected the weeks of July 26 and August 30, 2010, to interview ACSO personnel. 32. Defendants initially agreed to these dates telephonically. 33. On July 22, 2010, Defendants abruptly reversed course and insisted that the
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United States postpone its visit. Defendants continued to oppose the previously scheduled interviews despite the United States‟ efforts to negotiate access to ACSO personnel during a July 27, 2010, meeting in Graham, North Carolina and in multiple letters following that meeting.
Second Denial 34. In a letter dated September 17, 2010, the United States reiterated its need to interview ACSO personnel and offered to schedule a telephone conference to arrange such interviews with Defendants‟ Counsel and Linda Massey, the Chair of the Alamance County Board of Commissioners. 35. Defendants rebuffed the United States‟ attempt to resolve the dispute over interviewing ACSO personnel, stating in a letter dated September 20, 2010, that Commissioner Massey would not participate in the proposed call. Third Denial 36. On October 4, 2010, the United States wrote to Defendants and again requested access to interview ACSO personnel. 37. In a letter dated October 5, 2010, Defendants asserted that, pursuant to Rule 4.2, the United States was required “to coordinate with Counsel [for Defendants] prior to contacting current or former employees” of ACSO, and stated that “further contact with ACSO employees (current or former) without working through [Defendants‟ Counsel] would constitute serious misconduct.” 38. In a letter dated October 6, 2010, Defendants denied the interview request,
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stating that they would not agree to interviews outside the presence of Defendants‟ Counsel.
Fourth Denial 39. The United States renewed its request to interview ACSO personnel in a letter dated December 29, 2010. 40. Defendants did not respond to the United States‟ request that they select interview dates. D. Defendants’ Counsel Re-asserts That Rule 4.2 Bars the United States From Conducting Interviews Outside His Presence 41. Defendants‟ Counsel re-affirmed his unwillingness to permit interviews outside his presence during a March 23, 2011, meeting with DOJ attorneys in Alamance County. There, DOJ attorneys met with Defendants‟ Counsel and ACSO Chief Deputy Tim Britt to discuss outstanding access issues relating to the United States‟ investigation. During the meeting, the DOJ attorneys repeated their view that Rule 4.2 does not apply to investigative interviews prior to the commencement of enforcement proceedings. Defendants‟ Counsel rejected this interpretation and unambiguously re-stated his conviction that Rule 4.2 obligates DOJ attorneys to conduct all interviews of ACSO personnel, past and present, in his presence. E. Defendants Have Publicly Asserted That the United States Is Prohibited From Interviewing ACSO Personnel Outside the Presence of Defendants’ Counsel and That ACSO Personnel Should Not Participate in Such Interviews 42. In press interviews and public statements, Defendants and Defendants‟
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Counsel have repeatedly stated that ethical rules prohibit the United States from speaking to ACSO personnel outside the presence of Defendants‟ Counsel. First, in a letter dated July 26, 2010, Defendants‟ Counsel directed Defendant Johnson to “advise all Sheriff Department personnel that if contacted by the DOJ attorneys they should state that all communications must be made in the presence of and by agreement with the County Attorney [Defendants‟ Counsel].”
43. In this same letter, Defendants‟ Counsel asserted that, in contacting an ACSO deputy, the United States had acted “in defiance of [his] instructions to the contrary and in violation of the ethical rules governing attorney conduct.”
44. Defendants distributed this letter to all ACSO personnel, and a local newspaper reprinted a portion of it. Tomas Murawski, County Attorney: No Deputy Should Talk to Justice Dept. Lawyers Without Him Present, The Alamance News, July 29, 2010, at 1A.
45. Defendants‟ Counsel then unequivocally informed the local press that the DOJ attorneys had committed ethical violations by contacting ACSO personnel. The Burlington Times-News reported that “Justice attorneys violated ethics rules when they tried to contact sheriff‟s deputy James Conklin directly. The contact, which came against Albright‟s [Defendants‟ Counsel‟s] instruction to the contrary, was a violation because the attorneys are not licensed to practice law in North Carolina, Albright said.” Robert Boyer, County Attorney, Justice Officials at Odds Over Sheriff’s Investigation, The Burlington Times-News, Aug. 5, 2010, available at
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www.thetimesnews.com/news/county-35902-justice-attorney.html. 46. Likewise, The Burlington Times-News reported that “[l]ike other attorneys,
Justice lawyers must follow ethical rules that prohibit them from speaking to those who are represented by another attorney, Albright [Defendants‟ Counsel] said.” Robert Boyer, County Urged To Cooperate with Probe, The Burlington Times-News, Aug. 17, 2010, available at www.thetimesnews.com/news/county-36154-urgedalamance.html.
47. In addition, the local press has repeated Defendants‟ Counsel‟s claim that he represents all ACSO employees. For example, a September 7, 2010, Burlington Times-News article quoted Defendants‟ Counsel‟s statement that he represents ACSO deputies: “„I have a duty to represent the Sheriff and deputies . . . . [t]he deputies are also my clients.‟” Robert Boyer, County Attorney May Be Violating Federal Law, Justice Officials Say, The Burlington Times-News, Sept. 7, 2010, available at http://www.thetimesnews.com/news/attorney-36733-justice-county.html.
48. Most recently, Defendants‟ Counsel indicated the County is considering “a potential lawsuit” stemming from “his grievances with the Justice Department” over its investigation. In Twist, County May Sue DOJ Over Civil Rights, The Alamance News, Apr. 14, 2011, at 1A.
49. These public statements breed confusion among ACSO employees about the propriety of participating in interviews outside the presence of Defendants‟ Counsel. Additionally, these statements reinforce the doubts and fears some current and former
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ACSO personnel have about whether participating in investigatory interviews can subject them to retaliation by the Sheriff and/or ACSO. F. Interviews Outside the Presence of Defendants’ Counsel Are Essential to the
United States’ Investigation 50. Interviews conducted outside the presence of Defendants‟ Counsel are
essential to the United States‟ ability to gather accurate information about allegations of discriminatory policing by ACSO. Several ACSO officers have indicated that they would like to provide information to the United States, but have declined to be interviewed out of fear that the Sheriff and/or ACSO or its agents will fire them or otherwise retaliate against them. Other current and former officers have agreed to speak with the United States only after taking significant steps to ensure their confidentiality:
a. A current or former ACSO officer agreed to speak to DOJ attorneys only after making special arrangements to avoid detection by Defendants. The interview occurred late at night, and a third party dropped the officer off at the site of the interview so that ACSO would not observe the officer‟s car during the meeting.
b. A second current or former ACSO officer expressed concerns that Defendants were conducting surveillance to learn the identity of the individuals cooperating with the United States‟ investigation. To evade this surveillance, the officer requested that his/her interview take place at
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night in a dimly lit parking lot. c. A third current or former officer provided information to the United States,
but refused to provide his/her name, rank, or any other identifying information. d. A fourth current or former officer stated that he/she was interested in speaking with the United States, but could not do so because he/she feared that the Sheriff would cause him/her to lose his/her job. e. A fifth current or former officer cancelled a scheduled in-person interview out of fear that Defendants would retaliate against his/her family member. f. A sixth current or former officer who agreed to meet with the United States explained that “people [at ACSO] are terrified because they think they could be fired and [the Sheriff] has fired folks.” CLAIM FOR RELIEF: NORTH CAROLINA RULE OF PROFESSIONAL CONDUCT 4.2 PERMITS THE UNITED STATES TO INTERVIEW ACSO PERSONNEL OUTSIDE THE PRESENCE OF DEFENDANTS’ COUNSEL 51. Plaintiff re-alleges and incorporates by reference the allegations set forth in paragraphs 1-50 above. 52. Defendants have repeatedly asserted that Rule 4.2 prohibits the United States from interviewing any current or former ACSO personnel outside the presence of Defendants‟ Counsel. 53. The United States maintains that Rule 4.2‟s “authorized by law” exception
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permits such interviews. 54. Further, the United States maintains that current and former ACSO personnel
are not represented parties within the meaning of Rule 4.2. 55. Defendants have repeatedly and publicly invoked the rules governing
attorney conduct, including Rule 4.2, to justify their denial of DOJ access to ACSO personnel, and to discourage both current and former ACSO personnel from engaging in communications or interviews outside the presence of Defendants‟ Counsel, and will continue to do so absent the requested relief. PRAYER FOR RELIEF
56. The United States is authorized by law to investigate ACSO‟s police practices under Title VI, the Safe Streets Act, and Section 14141, and Defendants‟ Counsel does not represent current non-command staff or former ACSO personnel. For these two reasons, Rule 4.2 poses no barrier to the interviews the United States is seeking to conduct outside the presence of Defendants‟ Counsel.
WHEREFORE, the United States prays that the Court: a. Declare that North Carolina Rule of Professional Conduct 4.2 does not prohibit the United States from conducting interviews with current and former ACSO personnel outside the presence of Defendants‟ Counsel; and b. Order such other relief as the interests of justice may require.
DATED: July 14, 2011
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RIPLEY RAND United States Attorney Middle District of North Carolina
GILL P. BECK North Carolina Bar Number: 13175 Assistant United States Attorney Chief, Civil Division Middle District of North Carolina P.O. Box 1858 Greensboro, NC 27402 Tel: (336) 333-5351 gill.beck@usdoj.gov

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
ROY L. AUSTIN, JR. Deputy Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section Civil Rights Division
AVNER M. SHAPIRO DC Bar Number: 452475 Special Counsel Special Litigation Section Civil Rights Division
/s/Samantha K. Trepel SAMANTHA K. TREPEL DC Bar Number: 992377
/s/Michael J. Songer MICHAEL J. SONGER DC Bar Number: 975029 Trial Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Tel: (202) 514-6255 Fax: (202) 514-4883 samantha.trepel@usdoj.gov michael.songer@usodj.gov
Attorneys for the United States

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CERTIFICATE OF SERVICE I certify that the foregoing Amended Complaint was served through the electronic filing service on July 14, 2011, to the following individuals:
Clyde B. Albright Benjamin C. Pierce Alamance County Attorney‟s Office 124 West Elm Street Graham, NC 27253 clyde.albright@alamance-nc.com ben.pierce@alamance-nc.com Attorneys for Defendant Alamance County S.C. Kitchen Stark Law Group, PLLC 6011 Farrington Rd., Suite 300 Chapel Hill, NC 27517 chuck@starklawgroup.com Attorney for Defendant Johnson and ACSO
s/ Samantha K. Trepel______ SAMANTHA K. TREPEL Attorney for the United States
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 Part Description 1 6 pages 2 Exhibit

Multiple Documents

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

United States of America, Plaintiff;
v. Alamance County, et al.,
Defendants.

No. 11-cv-507 UNITED STATES’ MEMORANDUM IN SUPPORT OF ITS UNOPPOSED MOTION TO DISMISS THE AMENDED COMPLAINT AS MOOT

INTRODUCTION The United States respectfully asks this Court to dismiss its Amended Complaint, ECF No. 17, and this action with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). The Amended Complaint seeks a declaration from this Court that North Carolina Rule of Professional Conduct 4.2 (“Rule 4.2”) permits the United States to interview certain Alamance County Sheriff’s Office (“ACSO”) personnel outside the presence of Defendants’ counsel prior to the commencement of civil enforcement proceedings. Since filing the Amended Complaint on July 14, 2011, the United States has continued to investigate ACSO’s discriminatory policing activities. The United States recently concluded its 27-month investigation and prepared its formal Findings for release to ACSO counsel and the public. Today the United States issued those Findings, attached as Exhibit A. As the United States no longer seeks to interview ACSO officers for investigative purposes, there is no longer an “actual controversy” ripe for declaratory relief. Accordingly, this Court should dismiss the Amended Complaint.

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DISCUSSION The United States filed this action to clarify that Rule 4.2 permits it to conduct pre-enforcement investigative interviews with ACSO personnel outside the presence of Defendants’ counsel. The text of Rule 4.2(a) plainly contemplates such interviews, providing that “a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” N.C. R. Prof. C. 4.2(a). Comment 6 to Rule 4.2 states that communications “authorized by law” include the investigative activities of government lawyers “prior to the commencement of criminal or civil enforcement proceedings.” N.C. R. Prof’l Conduct 4.2 cmt. 6.1 Circuit courts interpreting these provisions have consistently found that they allow government attorneys to conduct pre-suit interviews outside the presence of counsel. See United States’ Mot. for Summ. J. at 9, ECF No. 18. Nonetheless, Defendants contend that Rule 4.2 prohibits such interviews during the United States’ investigation into allegations of ACSO’s discriminatory policing against Latinos in Alamance County. Defendants’ position impeded the United States’ access to an important source of information about ACSO’s practices. Indeed, during the
1 While the authorized by law exception was the primary basis on which the United States asked this Court to find that Rule 4.2 permits interviews outside the presence of Defendants’ counsel, the United States also pointed out that some ACSO personnel were not “represented parties” to whom the rule applies. See U.S. Mot. for Summ. J. at 11-14. As with the applicability of the authorized by law exception, the conclusion of the United States’ investigation means that there is no longer an actual controversy regarding the “represented parties” issue.
2
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United States’ investigation, numerous ACSO personnel expressed concerns about discussing ACSO’s practices in front of Defendants’ counsel, as they feared that the Alamance County Sheriff or other County or ACSO officials would retaliate against personnel who cooperate with the investigation. See Am. Compl. ¶¶ 4, 50. The United States thus sought this Court’s judgment that Rule 4.2’s “authorized by law” exception allows interviews outside the presence of Defendants’ counsel. See Am. Compl. ¶ 5.
Due to the importance of the constitutional and federal rights at stake, the United States continued to investigate ACSO’s practices while its request for a declaratory judgment was pending. To date, the United States has reviewed documents and information provided by Defendants, interviewed more than 125 individuals, and conducted a statistical analysis of ACSO’s law enforcement operations. Based on these various investigative methods, the United States determined that ACSO is engaged in a pattern and practice of discriminatory policing against Latinos. Today the United States issued the Findings of its investigation, explaining that ACSO’s discriminatory enforcement activities violate the Equal Protection Clause of the Fourteenth Amendment and the Fourth Amendment’s protection against unreasonable seizures. See generally Exhibit A, at 7-9. As explained in its Findings, the United States seeks to negotiate a cooperative agreement to vindicate the important rights violated by ACSO’s practices. If such an agreement is not possible, the United States will promptly seek legal remedies.
In light of these developments, there is no longer a dispute that is ripe for declaratory relief. The United States has concluded its investigation of ACSO and
3
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consequently no longer seeks to conduct pre-enforcement investigative interviews with ACSO personnel. If the Parties are unable to reach a cooperative resolution addressing ACSO’s discriminatory enforcement practices, the United States will file a complaint seeking relief from the Court. During any such litigation, the United States will gather additional information from represented ACSO personnel through formal discovery procedures rather than pre-suit investigative interviews. Accordingly, there is no longer an “actual controversy between the parties” ripe for resolution by this Court. See Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 592 (4th Cir. 2004) (citing 22 U.S.C. § 2201).
As there is no “actual controversy” ripe for declaratory relief, the United States respectfully asks the Court to dismiss the United States’ Amended Complaint and terminate the declaratory judgment action. Counsel for Alamance County and Sheriff Johnson consent to the United States’ motion.
CONCLUSION For the foregoing reasons, the United States respectfully requests that this Court dismiss the Amended Complaint as moot.

Respectfully submitted,

RIPLEY RAND United States Attorney Middle District of North Carolina

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

GILL P. BECK

ROY L. AUSTIN, JR.

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North Carolina Bar Number: 13175 Assistant United States Attorney Chief, Civil Division Middle District of North Carolina P.O. Box 1858 Greensboro, NC 27402 Tel: (336) 333-5351 gill.beck@usdoj.gov

Deputy Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section Civil Rights Division
AVNER M. SHAPIRO DC Bar Number: 452475 Special Counsel Special Litigation Section Civil Rights Division
s/ Samantha K. Trepel SAMANTHA K. TREPEL DC Bar Number: 992377
s/ Michael J. Songer MICHAEL J. SONGER DC Bar Number: 975029 Trial Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Tel: (202) 514-6255 Fax: (202) 514-4883 samantha.trepel@usdoj.gov michael.songer@usodj.gov
Attorneys for the United States

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CERTIFICATE OF SERVICE I certify that the foregoing United States’ Memorandum in Support of Its Unopposed Motion To Dismiss the Amended Complaint as Moot was served through the electronic filing service on September 18, 2012, to the following individuals:
Clyde B. Albright Benjamin C. Pierce Alamance County Attorney’s Office 124 West Elm Street Graham, NC 27253 clyde.albright@alamance-nc.com ben.pierce@alamance-nc.com Attorneys for Defendant Alamance County S.C. Kitchen Turrentine Law Firm 920-B Paverstone Dr Raleigh, NC 27615 ckitchen@turrentinelaw.com
Attorney for Defendants ACSO and Sheriff Johnson
s/ Samantha K. Trepel SAMANTHA K. TREPEL Attorney for the United States
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UNITED STATES OF AMERICA v. ALAMANCE COUNTY, NORTH CAROLINA et al, Docket No. 1:11-cv-00507 (M.D.N.C. Jun 23, 2011), Court Docket
General Information

Case Name Docket Number Court Nature of Suit

UNITED STATES OF AMERICA v. ALAMANCE COUNTY, NORTH CAROLINA et al
1:11-cv-00507
United States District Court for the Middle District of North Carolina
Civil Rights: Other

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

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

ALAMANCE COUNTY, NORTH CAROLINA,

)

CAROLINA, ALAMANCE COUNTY SHERIFF’S

)

OFFICE, and TERRY S. JOHNSON in his

)

official capacity as Sheriff of

)

Alamance County, North Carolina,

)

)

Defendants.

)

1:11cv00507

ORDER

This matter is before the court on the Unopposed Motion to Dismiss the Amen ded Complaint as Moot (“Motion”) filed by the United States o f America. (D oc. 51.) Defendants Alamance County, Alamance County Sheriff ’s Office and Terry S. Johnson consent to the request.
Based on the representations to the court and for good cause shown,
IT IS ORDERED that the Motion is GRANTED, and this action is DISMISSED WITH PREJUDICE.

September 18, 2012

/s/ Thomas D. Schroeder United States District Judge

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

United States of America, Plaintiff;
v. Terry S. Johnson, in his official capacity as Alamance County Sheriff,
Defendant.

No. _________________ COMPLAINT

I. INTRODUCTION 1. From at least January 2007 to the present, Defendant Sheriff Terry S. Johnson,
through the deputies under his control and at his direction, has engaged in a pattern or practice of discriminatory law enforcement activities directed against Latinos in Alamance County. This discriminatory conduct deprives Latinos of their rights under the Fourth and Fourteenth Amendments of the United States Constitution. To prevent Defendant Johnson from continuing these unconstitutional activities, this action seeks declaratory and injunctive relief under Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141. 2. Defendant Johnson acts individually and through the deputies he appoints to assist him in the performance of his official duties. N.C. Gen. Stat. § 162-24. The Sheriff and these deputies operate collectively as the Alamance County Sheriff’s

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Office (“ACSO”). 3. ACSO, at the direction of Defendant Johnson, intentionally discriminates against
Latino persons in Alamance County by targeting Latinos for investigation, detention, and arrest, and conducting unreasonable seizures and other unlawful law enforcement actions in violation of the United States Constitution and federal law. 4. ACSO deputies implement their office’s unlawful policy of targeting Latinos in a number of ways. For instance, ACSO deputies routinely target Latinos for stops during roving traffic enforcement operations. A 2012 statistical study commissioned by the United States Department of Justice (“DOJ”) illustrates this discriminatory practice. The study indicates, for example, that a Latino driver in Alamance County is as much as ten times more likely than a similarly situated non-Latino driver to be stopped by an ACSO deputy for committing a traffic infraction. 5. Other discriminatory practices by ACSO against Latinos include: disproportionately subjecting Latinos to unreasonable seizures; arresting Latinos for minor infractions, such as the failure to have a valid driver’s license, while only warning or issuing citations to similarly situated non-Latinos; stopping Latinos at vehicle checkpoints while allowing similarly situated non-Latino drivers to proceed; disproportionately locating vehicle checkpoints in predominantly Latino neighborhoods; and automatically referring Latino arrestees
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booked at the Alamance County Jail to investigators at United States Immigration and Customs Enforcement (“ICE”). 6. These discriminatory activities are the product of a culture of disregard for Latinos cultivated by Defendant Johnson and other ACSO leaders. ACSO leadership has repeatedly directed its deputies to target Latinos during enforcement actions and used derogatory comments and racial epithets to describe Latinos. For instance, while at a vehicle checkpoint, Defendant Johnson issued instructions to his subordinates to “go out there and get me some of those taco eaters,” which his subordinates understood as a directive to target Latinos for arrest. 7. ACSO’s deficient policies and virtually non-existent oversight of its biased policing activities further underscore its intent to discriminate against Latinos. ACSO consciously ignores the discriminatory effects of its practices, as is demonstrated by its ineffective training, virtually non-existent data collection, analysis, and accountability measures, poor supervision, and other departures from standard law enforcement practices.
II. DEFENDANT 8. Defendant Terry S. Johnson is sued in his official capacity as the Sheriff of
Alamance County. Defendant Johnson has served as Sheriff of ACSO since January 2003, and has been ACSO’s ultimate decision-maker at all times relevant to this Complaint. 9. ACSO is the largest law enforcement agency in Alamance County, North
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Carolina. ACSO has approximately 123 full-time sworn officers and an additional 147 civil employees. 10. Under North Carolina law, the Sheriff is the final authority for all duties assigned to his office. N.C. Gen. Stat. § 162-24. Defendant Johnson is responsible for all of ACSO’s law enforcement activities, including ACSO’s enforcement policies, priorities, and tactics, and the hiring, training, promotion, supervision, and discipline of deputies and other ACSO personnel. Defendant has the authority to terminate ACSO deputies and command staff at any time. He is ultimately responsible for the actions and omissions of ACSO deputies and command staff.
III. BACKGROUND 11. Alamance County is home to roughly 151,000 residents. The County’s population
is approximately 71.1% white, 18.8% African American, and 11.0% Latino or Hispanic. 12. The Latino population in Alamance County has grown considerably in the last two decades. According to Census data, the County had fewer than 800 Latino residents in 1990, comprising less than 1% of the total population. By 2010, the Latino population had grown to 16,624 – 11% of the total population. 13. In January 2007, ACSO entered into a Memorandum of Agreement (“MOA”) with ICE pursuant to Section 287(g) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1357(g). 14. ACSO’s first MOA with ICE became effective on January 10, 2007. The MOA
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followed the “detention enforcement model,” whereby ACSO personnel who completed mandatory training could investigate potential immigration violations committed by individuals detained at the Alamance County Jail. Certified officers could interrogate detainees and complete criminal alien processing procedures, including fingerprinting, photographing, and interviewing. The MOA did not authorize ACSO officers to enforce federal immigration laws outside the County Jail. 15. On September 18, 2012, ICE terminated its MOA with ACSO, eliminating ACSO officers’ ability to investigate potential immigration violations by individuals detained in the County Jail. 16. Also on September 18, 2012, the United States notified Defendant that, based on its investigation, the United States found reasonable cause to believe that Defendant Johnson and ACSO were in violation of 42 U.S.C. § 14141 and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and that this lawsuit would follow unless Defendant entered into a court enforceable agreement remedying the violations of the Constitution and federal law. 17. On September 26, 2012, counsel for Defendant Johnson declined the United States’ invitation to enter into meaningful settlement discussions, asserting that the United States’ legal conclusions were “meaningless” and that “no remedial measures are needed.” 18. The United States thereafter determined that securing Defendant’s compliance
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could not be achieved through voluntary means. IV. JURISDICTION AND VENUE
19. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1345.
20. The United States is authorized to initiate this action against Defendant Johnson under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”).
21. The declaratory and injunctive relief sought by the United States is authorized by 42 U.S.C. § 14141(b) and 28 U.S.C. §§ 2201 and 2202.
22. Venue is proper in the Middle District of North Carolina pursuant to 28 U.S.C. § 1391(b). ACSO is located in the Middle District of North Carolina, and Defendant Johnson conducts nearly all of his official business within the District. In addition, virtually all of the events, actions, or omissions giving rise to this claim occurred in the Middle District of North Carolina. V. FACTUAL ALLEGATIONS
23. From at least January 2007 to the present, ACSO has engaged in a pattern or practice of intentionally discriminatory policing activities against Latinos that stems directly from the statements, directives, and actions of Defendant Johnson and other ACSO leadership.
24. Defendant Johnson directs ACSO deputies to target Latinos when conducting enforcement activities. He has explicitly instructed his staff to “go out there and 6
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catch me some Mexicans,” and directed deputies to “arrest Hispanics” – but not others – for minor infractions. Further, Defendant Johnson fosters a culture of bias against Latinos at ACSO through these explicitly discriminatory commands and his use of racial epithets. As a result, deputies understand that ACSO leadership not only tolerates, but encourages, their discriminatory conduct. 25. ACSO’s discriminatory conduct includes targeting Latinos for traffic stops; stopping Latino drivers without reasonable suspicion; arresting Latinos for minor infractions while letting others go with a citation or warning; disproportionately locating vehicle checkpoints in Latino neighborhoods; stopping Latinos at checkpoints while letting others pass unhindered; and disproportionately referring Latinos for immigration investigations at the Alamance County Jail. 26. ACSO’s discriminatory activities violate the constitutional and statutory rights of Latinos in Alamance County and erode the trust in law enforcement that is central to effective policing.
A. Defendant Johnson Orders Law Enforcement Activities Targeting Latinos
27. Defendant Johnson has repeatedly urged ACSO deputies to target Latinos. For example: a. In a staff meeting after the implementation of the 287(g) MOA in January 2007, Defendant Johnson yelled “bring me some Mexicans!” while banging his fists on the table.
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b. Defendant separately instructed two members of ACSO’s command staff to “go out there and catch me some Mexicans.”
c. When Defendant speaks to traffic and patrol deputies he frequently asks them, “You all getting Hispanics for driver’s license revoked, NOL [no operator’s license]”?
d. In December 2008, Defendant instructed his deputies to “put heat on” predominantly Latino neighborhoods by conducting vehicle checkpoints, “knock and talk” operations, and heightened traffic enforcement.
28. In addition to encouraging ACSO deputies to target Latinos generally, Defendant Johnson has also instructed deputies to target Latinos in the context of discussing specific enforcement operations. For example: a. After ACSO gained 287(g) authority, Defendant instructed the deputies in charge of selecting checkpoint locations to focus on Alamance County’s Latino population. b. During a December 2008 meeting discussing an upcoming operation at the overwhelmingly Latino Calloway Drive mobile home park, Defendant encouraged his subordinates to get tough on the park’s Latino residents, saying, “Hell comes to these places and the devil gonna come with him. And you folks gonna be the devil.”
29. Defendant Johnson also directs his deputies to arrest Latinos – but not non-Latinos – for minor infractions during vehicle checkpoints and traffic stops. For example: 8
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a. Defendant directed ACSO’s traffic enforcement unit to “arrest Hispanics” during checkpoints that he ordered at the Seamstress mobile home park. Defendant further instructed participating deputies that “if anybody stopped is Hispanic, don’t write a citation, bring them to jail.”
b. At a checkpoint in Green Level on or about June 2011, Defendant instructed the deputies conducting the checkpoint to “arrest any Mexicans if they don’t have licenses.”
c. During a 2008 ACSO staff meeting, Defendant likewise directed the assembled supervisors to tell their officers, “If you stop a Mexican, don’t write a citation, arrest him.”
30. Defendant Johnson likewise directs his deputies to target predominantly Latino neighborhoods for increased enforcement. Defendant Johnson often voices his assumption that Latinos are responsible for Alamance County’s drug trade despite evidence that ACSO’s rate of arrests for drug crimes has declined as the County’s Latino population has increased. Defendant Johnson orders checkpoints and other enforcement activities in predominantly Latino areas under the pretext of drug interdiction. At a December 2008 staff meeting Defendant Johnson stated, “We’ve had a big drop in the Hispanic population, but we still got a lot dealing dope and we still got a lot of citizens in this country dealing dope with them.”
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B. Defendant Johnson and Other ACSO Personnel Make and Tolerate Statements Evidencing Bias
31. Defendant Johnson fosters ACSO’s culture of disregard for Latinos by making derogatory remarks about Latinos, including: a. On or about April 2007, while describing Latino immigrants to a reporter, Defendant asserted that, “[t]heir values are a lot different – their morals – than what we have here. In Mexico, there’s nothing wrong with having sex with a 12-, 13-year old girl . . . . They do a lot of drinking down in Mexico.” b. While participating in a vehicle checkpoint on or about June or July 2011, Defendant implored two deputies to “go out there and get me some of those taco eaters.” c. On several occasions, Defendant has instructed deputies to “arrest Mexicans” or “bring me Mexicans.” d. Defendant’s remarks frequently assume, without any factual basis, that all Latinos in North Carolina arrived illegally. e. Defendant complained about Latino migration to North Carolina during a speech at a national security conference on or about January 2009. In the speech, Defendant lamented the increased Latino presence in North Carolina’s workforce and public schools and various increases in public expenditures to Latinos, including health services, corrections, and the need
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for “Hispanic interpreters.” He concluded that “taxpayers are losing.” 32. In addition, Defendant Johnson tolerates racially insensitive remarks by other
members of ACSO’s command staff, deputies, and correctional officers. For example, Defendant Johnson did not discipline ACSO Chief Deputy Tim Britt for wearing a shirt to ACSO’s office that stated, “it’s a White thing, you wouldn’t understand.” 33. The anti-Latino sentiments expressed by ACSO leadership encourage discrimination by other ACSO personnel. Indeed, racially or ethnically insensitive comments are commonly made by ACSO deputies. For example:
a. During a traffic stop on or about April 2010, an ACSO deputy told a Latina passenger, “Mexican go home!”
b. On or about May 2010, after a Latina driver provided her valid North Carolina driver’s license to an ACSO deputy during a traffic stop, the deputy retorted, “you stole it—the woman in the picture is pretty and you’re ugly. We’re going to deport you.”
c. While responding to a call for service in the predominantly Latino Rocky Top mobile home park during the summer of 2011, an ACSO deputy threatened to deport the parents of children who had broken a neighbor’s window, asserting that the parents had until the following day to figure out who would pay to fix the window, “or we’re going to come back and deport you all.” When the deputy returned a few days later and encountered one 11
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of the parents, the deputy told him, “it’s a good thing you fixed the window, or you’d be in Mexico.” d. ACSO detention officers use the terms “wetback” and “spic” to refer to Latino individuals in their custody. C. ACSO Deputies Target Latinos for Traffic Stops 34. ACSO deputies routinely target Latinos for traffic stops. As a result, Latino drivers are significantly more likely to be subjected to traffic stops than similarly situated non-Latino drivers. 35. A 2012 statistical analysis commissioned by DOJ establishes that ACSO deputies routinely treat Latino drivers differently from similarly situated non-Latino drivers. The study assessed the incidence of traffic violations by Latino and nonLatino drivers and compared those data to the rates at which ACSO deputies stop Latino and non-Latino traffic violators. 36. For instance, the study analyzed traffic patterns along three major Alamance County highways, selected based on the high number of citations ACSO issued on those roads. The study found that ACSO deputies disproportionately stopped Latino drivers on all three roads: a. Along one highway, ACSO deputies were approximately four times more likely to stop Latino drivers as similarly situated non-Latino drivers. b. Along a second highway, ACSO deputies were approximately nine times more likely to stop Latino drivers than similarly situated non-Latino
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drivers. c. Along a third highway, ACSO deputies were approximately ten times more
likely to stop Latino drivers than similarly situated non-Latino drivers. D. ACSO’s Deliberate Targeting of Latinos for Traffic Stops
Frequently Results in Deputies Stopping Latinos Without Reasonable Suspicion 37. Individual incidents also speak to ACSO’s deliberate targeting of Latino drivers for traffic stops, and indicate that ACSO’s focus on stopping Latino drivers results in stops lacking reasonable suspicion. Examples of such incidents include: a. On or about August 2011, an ACSO deputy followed a Latino man on Highway 70 for four to five minutes before activating his lights and pulling him over. The deputy provided no reason for the stop, cited the man for driving without a license – but no violation observable prior to the stop – and arrested him. b. On or about August 2011, an ACSO deputy followed a Latino man for five minutes along Highway 54 before pulling him over. The officer provided no reason for the stop, cited the driver for driving without a license – but no previously observable violation – and arrested him. c. On or about July 2011, an ACSO deputy followed a Latino man for roughly one mile until the man pulled into a gas station to wait for his wife to meet him after she got off work. When the wife arrived and began to drive the couple home, the deputy pulled them over. The deputy approached the
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passenger side window and asked the husband for his driver’s license. The deputy stated that the husband had been speeding and conducted a breathalyzer test. The deputy arrested the husband for driving without a license and driving under the influence, although his blood alcohol level was below the North Carolina legal limit. When the wife protested that her husband had not been driving when they were pulled over, the deputy arrested her and charged her with driving without a license and resisting an officer. The prosecutors ultimately dismissed the charges for driving under the influence and resisting an officer. d. On or about July 2010, an ACSO deputy followed two Mexican women visiting Alamance County on vacation. The women were following a car driven by friends of theirs who were white. After the deputy followed the Mexican women for eight to ten minutes, he turned on his lights and pulled them over for “driving too slowly.” When the driver provided the deputy with her Mexican driver’s license and passport, the deputy told her they “looked fake,” and asked if she had a North Carolina license. After speaking with the white driver of the car the women had been following, the officer eventually let the women go without giving them any type of citation. e. On or about April 2009, an ACSO deputy stopped a Latino man driving in Green Level without probable cause or reasonable suspicion. When the
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man showed the deputy his driver’s license, the deputy asked for “his documents,” meaning his immigration documents. When the driver asked why he had been stopped, the deputy refused to answer. The deputy also refused to provide his name or badge number. The Latino man was lawfully present in the United States. E. ACSO Deputies Arrest Latinos for Committing Minor Traffic
Infractions, While Issuing Citations or Warnings to Similarly Situated Non-Latinos 38. ACSO officers treat Latinos differently than similarly situated non-Latinos when determining the appropriate response to minor traffic offenses. 39. ACSO deputies are far more likely to arrest Latino drivers than non-Latino drivers for minor traffic violations. Conversely, non-Latino drivers are far more likely than Latino drivers to receive citations or warnings for such violations. 40. For instance, ACSO deputies are more likely to arrest Latinos than non-Latinos for being unable to produce a valid driver’s license. F. ACSO Deputies Stop Latinos at Vehicle Checkpoints While Allowing Similarly Situated Non-Latino Drivers To Pass Through 41. ACSO’s selection of vehicles to stop at checkpoints discriminates against Latinos. ACSO deputies frequently wave non-Latino drivers through checkpoints while stopping cars driven by Latinos. 42. On several occasions, drivers have observed ACSO deputies waving white drivers through checkpoints while stopping Latino drivers and asking them to provide
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identification. 43. For example, during a 2009 checkpoint outside the Rocky Top mobile home park,
an ACSO officer waved a white man through a checkpoint. When the man started to show his driver’s license, the ACSO deputy indicated that it was unnecessary, saying, “no, I’m here to get us some.” The driver understood the deputy to be referring to the Latino residents of Rocky Top.
G. ACSO Deputies Disproportionately Locate Vehicle Checkpoints in Predominantly Latino Neighborhoods
44. For at least the past five years, ACSO deputies have disproportionately clustered checkpoint activity around predominantly Latino neighborhoods. An analysis of documented checkpoints illustrates this pattern. Further, this analysis understates the magnitude of the checkpoints’ discriminatory focus and effect because ACSO deputies routinely fail to record checkpoints located near Latino neighborhoods.
45. ACSO deputies frequently locate checkpoints at the entrance of mobile home parks populated overwhelmingly by Latino residents, such as Rocky Top, Seamstress, Oliver Rent, Calloway Drive, and Clover Creek.
46. During these checkpoints, residents of the affected mobile home parks are forced to endure police checks whenever leaving or entering their residential neighborhood.
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H. ACSO Officers Automatically Refer Latino Arrestees to ICE Investigators at the Alamance County Jail, While Not Referring Similarly Situated Non-Latinos
47. For at least the last five years, ACSO officers have targeted Latinos booked into the Alamance County Jail for heightened immigration enforcement.
48. Shortly after entering into the 287(g) MOA in 2007, ACSO changed its booking procedures to target Latinos for immigration questioning.
49. After entering the MOA, ACSO officers began asking arrestees about their place of birth and citizenship. After questioning, if an ACSO officer suspects that an arrestee is not a citizen, the officer escorts the arrestee to a 287(g) or ICE officer at the Jail to verify the arrestee’s immigration status, even if the arrestee has posted bail.
50. ACSO officers typically base their decisions on whether to refer arrestees to 287(g) or ICE officers on their assumptions about the nationality or ethnicity of the arrestees. ACSO officers refer for ICE questioning all arrestees who “appear” Latino, regardless of how the arrestees respond to the citizenship question on the property form. A former correctional officer explained that “if you [a]re Mexican or look[] Mexican or even if you [a]re Puerto Rican, you[] go to ICE.”
51. Conversely, arrestees who appear “American” are not referred to ICE, even if they fail to present identification.
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I. ACSO’s Deficient Policies, Training, and Oversight Procedures Facilitate Discriminatory Enforcement Activities Against Latinos
52. ACSO has knowingly failed to implement adequate policies, procedures, training, and accountability mechanisms to prevent unlawful discrimination against Latinos, and has affirmatively changed certain policies to facilitate its discriminatory policing activities.
53. ACSO has failed to collect and/or analyze data necessary to identify and correct discriminatory practices. ACSO lacks an effective system to track and analyze its enforcement operations, including vehicle checkpoints, traffic stops, citations, and arrests. These data are collected and analyzed by many other law enforcement agencies as a means of preventing discriminatory policing.
54. ACSO is fully aware of the risk of discriminatory policing created by its practices of targeting Latinos, but has failed to take measures to prevent discriminatory treatment of Latinos. Inadequate Oversight and Analysis of Policing Activities
55. ACSO’s lack of analysis of its policing activities evidences its intent to discriminate against Latinos.
56. Despite focusing its enforcement operations heavily on Alamance County’s Latino population, ACSO does almost nothing to monitor or analyze its own policing operations to prevent discriminatory policing practices.
57. Even after DOJ informed ACSO in June 2010 that it was investigating ACSO’s
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discriminatory policing practices, ACSO took no steps to train, assess, or monitor its deputies to ensure that they were not engaging in discriminatory activities. 58. ACSO deputies who depart from or ignore ACSO’s limited reporting requirements for conducting vehicle checkpoints suffer no repercussions. As a result, ACSO deputies seeking to gain favor with Defendant Johnson by targeting Latinos establish their own checkpoints in Latino neighborhoods without receiving prior approval from a supervisor and without creating any record of the checkpoint. 59. ACSO likewise does not consistently gather and analyze traffic stop data, even though North Carolina law requires such collection. Indeed, ACSO has admitted that at least for several years it “grossly underreport[ed]” the number of traffic stops its deputies made. 60. The lack of vehicle checkpoint and traffic stop data and analysis ensures that ACSO is unable to properly monitor its deputies’ traffic enforcement activity or identify deputies or units engaged in profiling Latinos.
Lack of Training and Oversight for the Vice Unit 61. The lack of guidance and oversight of the activities of ACSO’s Vice Unit –
formerly known as the “Special Operations” unit – likewise shows ACSO’s intent to discriminate against Latinos. 62. The Vice Unit consists of roughly a half dozen officers loyal to Defendant Johnson who carry out operations he prioritizes, often focusing on traffic stops and drug enforcement operations in predominantly Latino neighborhoods. At
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Defendant Johnson’s direction, the Vice Unit frequently targets predominately Latino mobile home parks such as Rocky Top, Seamstress, Calloway Drive, and Oliver Rent with road blocks, vehicle stops, raids, and increased patrols. 63. The Vice Unit’s specialized drug enforcement activities, its focus on minority communities, and its frequent use of pretextual traffic stops place it at high risk of engaging in discriminatory conduct. 64. A law enforcement agency would ordinarily require that a unit engaged in activities with these risks receive more supervision and meaningful policy guidance. Instead, Vice Unit officers operate with less oversight than other ACSO officers, and without specific written guidance. 65. Defendant Johnson typically selects Vice Unit officers based on personal loyalty and without an open interview process. 66. The officers receive no formal training specific to their responsibilities as Vice Unit members. Nor are Vice Unit officers provided with any guidance regarding biased policing other than a general prohibition against discrimination. 67. These deficiencies demonstrate that Defendant Johnson and ACSO leadership consciously ignore the risk of biased policing by Vice Unit members.
VI. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF
DEFENDANT’S LAW ENFORCEMENT ACTIVITIES VIOLATE SECTION 14141 AND THE FOURTEENTH AMENDMENT
68. The United States re-alleges and incorporates by reference the allegations set forth 20
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in paragraphs 1 - 67 above. 69. The United States is authorized under 42 U.S.C. § 14141(b) to seek declaratory
and equitable relief to eliminate a pattern or practice of law enforcement officer conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. 70. Here, Defendant and his agents, including ACSO deputies, have utilized a variety of law enforcement practices to intentionally discriminate against Latino persons in Alamance County on the basis of their ethnicity. 71. Defendant’s discriminatory law enforcement practices and those of his agents constitute a pattern or practice of depriving persons of rights protected by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, in violation of 42 U.S.C. § 14141(a).
SECOND CLAIM FOR RELIEF DEFENDANT’S LAW ENFORCEMENT ACTIVITIES VIOLATE
SECTION 14141 AND THE FOURTH AMENDMENT 73. The United States re-alleges and incorporates by reference the allegations set
forth in paragraphs 1 - 67 above. 74. The United States is authorized under 42 U.S.C. § 14141(b) to seek declaratory
and equitable relief to eliminate a pattern or practice of law enforcement officer conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. 75. Defendant and his agents, including ACSO deputies, have unreasonably seized
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numerous persons in Alamance County. These unreasonable seizures include seizures made without probable cause or reasonable suspicion. 76. Moreover, Defendant and his agents engage in a pattern of making pretextual traffic stops motivated by the ethnicity of the driver rather than a traffic infraction. 77. The unreasonable seizures made by Defendant and his agents constitute a pattern or practice by law enforcement officers that deprives persons of their rights under the Fourth and Fourteenth Amendments, in violation of 42 U.S.C. § 14141(a).
PRAYER FOR RELIEF 78. WHEREFORE, the United States prays that the Court: 79. Declare that Defendant, his deputies, agents, and employees have engaged in a
pattern or practice of conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, in violation of 42 U.S.C. § 14141(a); 80. Order Defendant, his deputies, agents, and employees to refrain from engaging in any of the predicate acts forming the basis of the pattern or practice of unlawful conduct described herein; 81. Order Defendant, his deputies, agents, and employees to adopt and implement policies and procedures to remedy the pattern or practice of unlawful conduct described herein; 82. Order Defendant to adopt systems that identify and correct conduct that deprives persons of rights, privileges, or immunities secured or protected by the
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Constitution or laws of the United States; and
83. Order such other relief as the interests of justice may require.
DATED: December 20, 2012
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
ROY L. AUSTIN, JR. Deputy Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section Civil Rights Division
AVNER M. SHAPIRO DC Bar Number: 452475 Special Counsel Special Litigation Section Civil Rights Division
/s/ Samantha K. Trepel SAMANTHA K. TREPEL DC Bar Number: 992377
/s/ Michael J. Songer MICHAEL J. SONGER DC Bar Number: 975029 Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Tel: (202) 514-6255
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Fax: (202) 514-4883 samantha.trepel@usdoj.gov michael.songer@usdoj.gov Attorneys for the United States
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

TERRY S. JOHNSON, in his

)

official capacity as Alamance )

County Sheriff,

)

)

Defendant.

)

1:12CV1349

MEMORANDUM ORDER

This is an actionby the United States against Terry S. Johnson,

in his official capacity as Sh eriff of Alamanc e County, North

Carolina (“Johnson”), alleging a pattern o r practice of

discriminatory law enforcement activities directed against Latinos

in violation of the Violent Crime Control and Law Enforcement Act

of 1994, 42 U.S.C. § 14141. Before the court is Johnson’s motion

for judgment on the p leadings pursuant to Federal Rule of Civil

Procedure 12(c) on the grounds that the action is barred by the

doctrine of res judicata and, alternatively, that its pattern and

practice claims are otherwise moot. (Doc. 10.) The motion has been

fully briefed (Docs. 11, 13 & 15), and for the reasons set forth below

will be denied.

I. BACKGROUND

On June 23, 2011, the United States filed a declaratory judgment

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action against Johnson , the Alamance County Sheriff’s Office (“ACSO”), and Alamance County “to clarify the obligations imposed by Rule 4.2 ofthe North Carolina Rules of Professional Conduct”1 and to seek a declaration that Rule 4.2 permits Government attorneys to interview certain ACSO non -command staff and all former ACSO employees outside the presence of the defendants’ counsel. United States v. Alamance Cnty., Case No. 11cv507 (M.D.N.C.) (Doc. 1). The complaint alleged that the United States Department of Justice was investigating ACSO’s police practices as to Latinos in Alamance County pursuant to the Government’s authorization provided by Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, the pattern or practice provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d, and the pattern or practice provisions of the Violent C rime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“section 14141”). The Government alleged that the

1 North Carolina Rule 4.2 addresses communications with persons represented by counsel. Comment [8] to Rule 4.2 specifically states:

[8] This Ruleapplies to communications with anyperson, whether

or not a party to a formal adjudicative proceeding, contract

or negotiation, who is represented by counsel concerning the

matter to which the communication relates. The Rule applies

even though the represented person initiates or consents to the

communication.

A lawyer must immediately te rminate

communication with a person if, aftercommencing communication,

the lawyer learns that the person is one with whom communication

is not permitted by this Rule.

N.C.R. Prof. Conduct 4.2, cmt [8]. 2

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defendants repeatedly asserted that Rule 4.2 prohibited the Government’s attorneys from interviewing the personnel identified without the presence of d efendants’ counsel, and defendants had allegedly threatened to sue the Government and its attorneys for violating Rule 4.2. The Government sought a declaration that Rule 4.2 does not prohibit it from interviewing current and former ACSO personnel outside the presence ofdefendants’ counsel, and for “such other relief as the interests of justice may require.”(Id. at 14.)
Alamance County moved to dis miss the complaint, and t he Government moved for summary jud gment, relying on affidavits and other materials. (Docs. 8, 22 & 18 in case 11cv507.) On the day after the courtordered a hearing onthe motions, the Government filed an unopposed motion to dismiss its amended complaint as moot on the grounds that the Government had completed its 27-month investigation, issued formal findings of its investigation (which were contained in an eleven-page attachment), and no longer sought to interview the ACSO personnel for investigative purposes. (Doc. 51 in case 11cv507.) The court entered an Order dismissing the action with prejudice. (Doc. 53 in case 11cv507.)
Three months later, on December 20, 2012, the United States filed the instant action against Johnson. The c omplaint alleges that he and his deputies have engaged in a pattern or practice of
3
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discriminatory law enforcement directed against Latinos in violation of section 14141. (Doc. 1.) More specifically, the complaint alleges that Johnson has urged his deputies to target Latinos; ACSO personnel make a nd tolerate stat ements evidencing bias against Latinos; ACSO deputies target Latinos for traffic stops; ACSO deputies stop Latinos without reasonable suspicion; ACSO deputies treat Latino drivers less favorably than non -Latinos, including stopping them unreasonably at checkpoints; and ACSO deputies discriminatorily refer Latinos to immigration officials. These allegations mirror those set fo rth in the investigative report attached to the Government’s motion to dismiss its piror action. The complaint seeks declaratory relief that determines that Johnson and his deputies have discriminated against Latinos, orders them to stop their alleged un lawful acts, and requires that they adopt and implement policies, procedures, and systems to remedy the alleged pattern or practice. ( Id. at 22-23.) The complaint also seeks “such other relief as the interests of justice may require.” (Id. at 23.)
Johnson now moves to dismiss the complaint on the grounds that the claims alleged in it could have been brought in hte Government’s previous action and thus are barred by the doctrine of res judicata. Johnson argues in the alternative that the Government’s pattern or
4
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practice claims are moot because the United Stat es Department of Homeland Security (“DHS”) terminated Johnson’s authority to investigate immigration offenses at the Alamance County jail. Each contention will be addressed in turn. II. ANALYSIS
A motion for judgment on the pleadings is analyzed under the same standard as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). The court assumes the truth of the factual allegations in the complaint and draws all reas onable factual inferences in the plaintiff’s favor as the nonmoving party. See id. at 406. Unlike on a Rule 12(b)(6) motion, however, on a Rule 12(c) motion the court may consider the answer and any affirmative defenses, and factual allegations contained therein “are taken as true only where and to the extent they have not been denied or do not conflict with the complaint.” Jadoff v. Gleason, 140 F.R.D. 330, 331-32 (M.D.N.C. 1991). “The test applicable for judgment on the pleadings is whether or not, when viewed in the light most favorable to the party against whom the motion is made, genuine issues of material fact remain or whether the case can be decided as a ma tter of l aw.” Smith v. McDonald, 562 F. Supp. 829, 842 (M.D.N.C. 1983), aff’d, 737 F.2d 427
5
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(4th Cir. 1984), aff’d, 472 U.S. 479 (1985). A. Res Judicata Johnson argues first that the present case is barred by res
judicata because he says the Government’s previous declaratory judgment action arose out of the same transactions as the present case – the alleged discriminatory policing practices of the ACSO. He also points out that the previous action was dismissed with prejudice but acknowledges that the relief sought was different. (Doc. 11 at 3-7.)
Res judicata, also known as “claim preclusion,” bars a party from “suing on a claim that has already been ‘litigated to final judgment by that party . . . and precludes the assertion of any legal theory, cause of action, or defense which could have been asserted in that action.’” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009) (quoting 18 James Wm. Moore et al., Moore’s Federal Practice § 131.10-(1)(a) (3d ed. 2008)). In order for res judicata to apply, three elements must be present: “(1) a judgment on the merits in a prior suit resolving (2) claims by the same parties or their privies, and (3) a subsequent suit based on the same cause of action.” Id. (quoting Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir. 1990)). To find that the subsequent suit is based on the same cause of action, the court neendot determine that
6
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it is based on the same legal theory as long as it “arises out of the same transaction or series of transactions as the claim resoldve by the prior judgment.” Id.
The parties agreethat the prior action ended in a fianl judgment between the same parties. They dispute whether the two actions arise out of th e same transaction or series of transactions . Johnson defines the tra nsactions as th e alleged discr iminatory police practices, pointing to the Depa rtment of Justice’s eleven-page investigative report the Government attached to itsdismissal notice in the prior action which details the same basic conduct complained of in the prese nt lawsuit. Th e Government ch aracterizes the transactions as entirely diffe rent, contending that the first lawsuit simply sought a declaration of its right under the State’s ethics rules for lawyers to interview ACSO personnel in an effort to carry out its investigative obligations to determine whether the ACSO’s conduct warranted the filing of an action on the merits.
Neither party acknowledges that the doctrine of res judicata is limited by a declaratory judgment exception. Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 163-64 (4th Cir. 2008). The preclusive effect of a declaratoryjudgment action applies “only to the ‘matters declared’ and to any issues actually litigated . . . and determined in the action.” Duane Reade, Inc. v. St. Paul Fire
7
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& Marine Ins. C o., 600 F.3d 19 0, 196 (2d Cir. 2010) (quoting Restatement (Second) of Judgments § 33 (1982)). The exception applies as long as “the prior action solely sought decla ratory relief” and not damages or injunctive relief. Laurel Sand, 519 F.3d at 164.
It is true that the alleged discriminatory practices of the ACSO were at the root of the Government’s first lawsuit. However, that case merely sought a declaratory judgment that the Government had the right to interview certain ACSO personnel in its attempt to carry out its investigative obligations to determine whether it had sufficient factual grounds to bring a lawsuit under section 14141. The transactions at issue in that prior case were the interviews of ACSO personnel, and the action sought only declaratory, and not any other, relief. It therefore falls neatly within the declaratory judgment exception. To say that the Government’s lawsuit over its right to interview witnesses bars later litigation on the merits of the alleged underlying civil rights violations would render the investigative powers available i n such cases nug atory. It would also be inconsistent with the North Carolina Rules of Professional Conduct, which contemplate – actually invite – the filing of a declaratory judgment action to clarify counsel’s responsibilities
8
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under Rule 4.2.2
Accordingly, the claims of the present lawsuit are not barred
by the prior action.
B. Mootness
Johnson argues next that a portion of the allegations of the
present lawsuit have been m ooted by subse quent actions.
Specifically, he contends that the allegations of section H of the
complaint, which charge that ACSO officers discriminatorily refer
Latinos at the Alamance County jail to immigration officials, are
now moot because Johnson’s authority to make any referrals was based
on a prior agreement with the Government which was terminated by DHS
on September 18, 2012. (Doc. 11 at 7-8.) The Government responds
that these allegations are but one of several grounds for the two
separate claims it is pursuing, and the fact that Johnson’s authority
2 Rule 4.2, comment[7], provides that“[a] lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order.” The United States initiated the prior action pursuant to 28 U.S.C. § 1345, which provides that district courts have original jurisdiction in all civil actions commenced by the United States, 28 U.S.C. § 1331, federal question jurisdiction, and 28 U.S.C. §2201(a), declaratory relief. (Doc. 17 in case 11cv507 ¶¶ 1, 18-19.) The Government asserted that interviews outside the presence of counsel were essential to thecollection of accurate information and sought a declaration of its abili ty to interview ACSO personnel, alleging that “numerous” current and former ACSO employees had refused to cooperate or had expressed fear or concerns of retaliation if they talked. (Id. ¶ 4; see id. ¶¶ 30-49 (recounting defendants’ specific denials to interviews), ¶ 50 (discussing six current or former officers who had allegedly been intimidated).) “In an unsettled situation, a party has an ethical duty to seek the court’s guidance as opposed to acting on its own.” McCallum v. CSX Transp., Inc., 149 F.R.D. 104, 110 n.4 (M.D.N.C. 1993) (Eliason, M.J.).
9
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to make referralshas been terminated does not rendetrhe larger claim moot.
An actual controversy must exist for the court to have jurisdiction over a claim. Arizonans for Offic ial English v. Arizona, 520 U.S. 43, 67 (1997). However, where a claim depends on multiple grounds or theories, th e non-existence of one ground or theory does not render the larger claim moot. See Simmons v. United Mtg. & Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011) (noting that a case is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome” (citations omitted).)
Here, the Government raise s two claims, each under section 14141: one for an alleged pattern or practice of discriminating against Latinos in Alamance County based on their ethnicity; and one for alleged unlawful seizures of Latinos in Alamance County based on ethnicity. (Doc. 1.) Whether one of the alleged practices has become moot does not eliminate the claim where, as here, there are other grounds alleged to support it. Thus, judgment on the claim cannot be entered at this time.
10
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III. CONCLUSION For the reasons set forth above, Johnson’s motion for judgment
on the pleadings (Doc. 10) is DENIED.

April 29, 2013

/s/ Thomas D. Schroeder United States District Judge

11 Case 1:12-cv-01349-TDS-JLW Document 19 Filed 04/29/13 Page 11 of 11

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

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

TERRY S. JOHNSON, in his

)

official capacity as Alamance )

County Sheriff,

)

)

Defendant.

)

1:12-cv-1349

ORDER

On November 8, 2013, the court heard argument on several

motions filed by the parties. The purpose of this Order is to

memorialize the court’s rulings during the hearing.

During the hearing, the parties reached agreement on t he

Government’s motion for reconsideration (Doc. 36) of the

Magistrate Judge’s ruling on discovery (Doc. 34). As to the

individuals known to the Governm ent whose identity the Defendant

sought in his interrogatories 14 and 15 and for whom the

Government has asserted an informant’s privilege, the parties

agreed that if the Government intends to rely on them for

purposes of motions for summary judgment, the Government must

disclose them at least thirty days before the close of expert

discovery.

As to i nterrogatory 16, the Government has

Case 1:12-cv-01349-TDS-JLW Document 67 Filed 11/14/13 Page 1 of 4

represented that all individuals known to it are identified in its responses to date. After any motion for sum mary judgment is filed (or the time for doing so expires without the filing o f any motion), the Defendant may move the court for disclosure of any claimed informants for purposes of trial if the Government has not disclosed them. The Government also represents that as to interrogatory 16 it has no further specific information as to dates and times of any alleged statement and will articulate that limitation in a supplemental response to the Defendant within ten (10) days. The Defendant’s motion to compel further responses as to interrogatory 16 is therefore moot.
Given the resol ution of the m otion for recon sideration (Doc. 36), the court need not consider the motions to seal (Docs. 35, 49, 56, and 63) insofar as none of those material s was necessary, and the motions and documents are deemed withdrawn upon the request of the filing party . The materials subject to the motions to seal shall be returned to the appropriate party. The court accepts the parties’ redacted briefs.
The Defendant has also withdrawn the motion for sanctions (Doc. 46). Therefore, the court need not consider it further.
The Defendant shall have until and through November 15, 2013, to review the list of former deputies/officers identified
2
Case 1:12-cv-01349-TDS-JLW Document 67 Filed 11/14/13 Page 2 of 4

by the Government in response to interrogatory 16 to determine

whether additional depositions will be required.

The

Defendant’s request to reopen fact discovery for the limited

reasons noted du ring the hearing is allowed, and the deadline

for completion of that limited fact discovery and for all expert

discovery shall now be January 24, 2014.

The parties’ joint motion to modify expert disclosure

deadlines (Doc. 66) will be granted, and the deadline for expert

disclosures and reports is extended through November 15, 2013.

The court will refer disposition of the motion for order to

show cause (Doc. 61) to Magistrate Judge Webster

, who is

overseeing discovery in the case.

Finally, the motion of Boney Publishers, Inc. to intervene

(Doc. 41) is GRANTED. Boney’s counsel acknow ledged that the

motion for access to the documents filed with the motions to

seal (Doc. 42) was moot in light of the agreement of the parties

as to the claim ed informants, a s noted above. As to Boney’s

request to modif y the Confidenti ality Order ente red into by the

parties and app roved by the Ma gistrate Judge (Doc. 18), such

motion should be addressed by the Magistrate Judge in the first

instance as he is overseeing discovery in this case and approved

the parties’ Con fidentiality Order. Therefore, the court will

3 Case 1:12-cv-01349-TDS-JLW Document 67 Filed 11/14/13 Page 3 of 4

coordinate with Magistrate Judge Webster for further proceedings as to this motion.
SO ORDERED. /s/ Thomas D. Schroeder
United States District Judge November 14, 2013
4 Case 1:12-cv-01349-TDS-JLW Document 67 Filed 11/14/13 Page 4 of 4

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

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

TERRY S. JOHNSON, in his

)

official capacity as Alamance )

County Sheriff,

)

)

Defendant.

)

1:12cv1349

TABLE OF CONTENTS I. FINDINGS OF FACT...........................................3
A. Alamance County.......................................3 1. Population and Demographics of Alamance County...3 2. Law Enforcement Challenges in Alamance County....4
B. ACSO and Sheriff Johnson..............................9 1. The Introduction and Implementation of ICE’s 287(g) Program in Alamance County...............10 a. 287(g) Program’s TFO.......................14 b. Termination of TFO Position................21 c. Gun Permit Investigations..................23 d. ACSO’s Processing and Booking Procedures...25 e. Fairness Alamance..........................32 2. ACSO Arrest Policy and Practice.................36 3. Orders to Target Hispanics......................41 4. ACSO Checkpoint Policy and Implementation.......44 5. ACSO’s Stops and Searches.......................54 a. Particular Stops...........................54 b. Statistical Evidence.......................58 i. Dr. John Lamberth.....................58 ii. Dr. John MacDonald....................67 (a) Post-Stop Outcome Study..........70 (b) “Hit-Rate” Study.................72 iii. Officer Mark Dockery and ACSO Data on Searches Not Incident to Arrest.......75 iv. Dr. David Banks.......................78
ii

(a) ACSO’s Checkpoint Siting.........80 (b) ASCSO’s Checkpoint Stops.........82 (c) ACSO’s Checkpoint Arrests........86 (d) ACSO’s Traffic Stops.............87 (e) ACSO’s Citations.................89 C. Evidence of Racial and Ethnic Bias Within ACSO.......90 1. Racial and Ethnic Epithets and Jokes............93 2. Derogatory Emails...............................96 D. ACSO’s Supervision and Discipline of Its Officers...102 1. Supervision....................................103 a. ACSO’s Complaint Policy...................103 b. ACSO’s Review of Stops, Arrest, and Searches..................................105 c. ACSO’s Traffic Stop Data Reporting........109 d. ACSO’s Training of Its Officers...........110 e. ACSO’s Harassment Prevention Policy.......112 f. Implementation of Email and Video Filtering Software........................112 2. Discipline.....................................113 3. Margo Frasier..................................116 II. CONCLUSIONS OF LAW.......................................121 A. Motion to Exclude Dr. Lamberth’s Testimony..........121 1. Admissibility..................................123 a. Testability...............................124 b. Peer Review...............................128 c. Error Rates...............................129
iii

d. General Acceptance........................134 2. Credibility....................................139 B. Motion to Exclude Dr. Banks’ Testimony..............142 1. Dr. Banks’ Qualifications......................142 2. The Admissibility of Dr. Banks’ Testimony......145
a. Dr. Banks’ Study of ACSO Traffic Stops....146 b. Dr. Banks’ Analysis of ACSO Checkpoint
Stops.....................................148 c. Dr. Banks’ Study of ACSO Checkpoint
Arrests...................................150 d. Dr. Banks’ Permutation Test...............151 C. Motion for Adverse Inference........................153 D. Motion to Exclude Kenneth Evans’ Testimony..........160 E. 42 U.S.C. § 14141 Claims............................165 1. Fourteenth Amendment Claim.....................171 a. Express Classification....................173 b. Facially Neutral Classification...........182
i. Traffic Stops........................190 ii. Checkpoint Placement and Stops.......192 iii. Post-Stop Outcomes...................199 iv. Searches After Stops.................211 v. 287(g) Practices.....................219 vi. ACSO’s Culture, Supervision, and
Discipline...........................225 2. Fourth Amendment Claim.........................227 F. Statute of Limitations..............................246 III. CONCLUSION...............................................247
iv

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

The United States of America (the “Government”) alleges

that, from at least January 2007 to the present, Defendant Terry

S. Johnson, in his official capacity as Sheriff of Alamance

County, North Carolina, engaged in a pattern or practice of

discriminatory law enforcement activities directed against

Hispanics,1 in violation of the Fourth and Fourteenth Amendments

to the United States Constitution. The Government brings this

action via Section 210401 of the Violent Crime Control and Law

Enforcement Act of 1994, 42 U.S.C. § 14141.

(Doc. 1.)

Principally, the Government charges that Alamance County

Sheriff’s Office (“ACSO”) disproportionately subjects Hispanics

to unreasonable searches, arrests them for minor infractions (in

lieu of issuing warnings or citations), targets them at vehicle

checkpoints located in predominantly Hispanic neighborhoods,

uses ethnically-offensive epithets to refer to Hispanics and

otherwise tolerates activities of deputies that evidence anti-

Hispanic bias, automatically and selectively refers Hispanic

arrestees to U.S. Immigration and Customs Enforcement (“ICE”)

investigators for deportation, and otherwise engages in

deficient policies, training, and oversight that facilitates

1 The Government refers to Latinos and Hispanics interchangeably.

discriminatory enforcement. (Id.) Sheriff Johnson denies any wrongdoing and maintains that ACSO’s law enforcement is legitimate and lawful.
The parties previously filed cross-motions for summary judgment, which the court considered and, following oral argument, granted in part and denied in part. (Doc. 118.)
A bench trial on the merits was conducted from August 12 through 22, 2014. The Government presented twenty-nine fact witnesses and three expert witnesses, and Sheriff Johnson presented sixteen fact witnesses and one expert witness. At the close of the Government’s evidence, Sheriff Johnson moved for judgment pursuant to Federal Rule of Civil Procedure 52(c), which the court took under advisement. Following trial, the parties sought to file proposed findings of fact and conclusions of law and requested additional time to do so. They have now submitted them. (Docs. 157, 158.) The case is therefore ready for decision.
Pursuant to Federal Rule of Civil Procedure 52(a), the court enters the following findings of fact — based upon an evaluation of the evidence, including the credibility of witnesses, and the inferences that the court has found reasonable to draw therefrom — and conclusions of law. To the extent any factual statement is contained in the conclusions of law, it is deemed a finding of fact as well.
2

As explained by the following analysis, and after careful

consideration, the court concludes that the Government has

failed to demonstrate that ACSO has engaged in a pattern or

practice of unconstitutional law enforcement against Hispanics

in violation of § 14141.

I. FINDINGS OF FACT

A. Alamance County

1. Population and Demographics of Alamance County

Alamance County (the “County”) lies within central North

Carolina and is currently home to over 150,000 residents. See

State & County QuickFacts: Alamance County, North Carolina, U.S.

Census

Bureau,

http://quickfacts.census.gov/

qfd/states/37/37001.html (last visited June 29, 2015).2 The

Government has consistently contended, and Sheriff Johnson does

not dispute, that Alamance County’s population, and particularly

its Hispanic population, has risen sharply since 1990. (See

Doc. 1 ¶ 12; Doc. 158 at 9.) As of the 1990 U.S. Census,

Alamance County was home to about 108,000 residents, with the

County’s Hispanic population totaling fewer than 800 — or less

2 Under Federal Rule of Evidence 201, the court may take judicial notice of U.S. Census data. See Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571–72 (5th Cir. 2011) (“United States census data is an appropriate and frequent subject of judicial notice.”); United States v. Gregory, 871 F.2d 1239, 1245 (4th Cir. 1989) (taking judicial notice of population figures); see also United States v. Cecil, 836 F.2d 1431, 1452 (4th Cir. 1988) (agreeing that “courts may take judicial notice of official governmental reports and statistics” under Rule 902(5) of the Federal Rules of Evidence).

3

than 1% of the total population. See 1990 Census of Population

and Housing Public Law 94-171 Data (Official) Age by Race and

Hispanic

Origin,

U.S.

Census

Bureau,

http://censtats.census.gov/pl94/pl94.shtml

(displaying

population totals for North Carolina by county) (last visited

June 29, 2015). Today, just over twenty years later, the County

has over 150,000 residents, with the Hispanic population

expanding to approximately 17,700 — comprising 11.8% of the

total population. See State & County QuickFacts: Alamance

County,

North

Carolina,

U.S.

Census

Bureau,

http://quickfacts.census.gov/qfd/states/37/37001.html (present-

ing figures on the demographic layout of Alamance County) (last

visited June 29, 2015).

2. Law Enforcement Challenges in Alamance County3

The Sheriff contends that the County’s recent growth has

brought with it increasing crime, including a serious drug

trafficking problem with associated drug-related violence. In

particular, the Sheriff presented uncontested evidence that

major Mexican drug trafficking organizations (“DTOs”), including

the Sinaloa drug cartel, have relocated operations to Alamance

County, making it a hub for drugs and crime. (Doc. 152 at 109,

3 Any challenge to law enforcement conduct must be examined in the context of legitimate law enforcement concerns, keeping in mind that, while highly relevant, such concerns cannot excuse or justify unconstitutional policing.
4

112, 114.) According to a 2010 Department of Justice (“DOJ”) and Drug Enforcement Administration (“DEA”) report, Mexican DTOs “mov[ed] their operations beyond metropolitan Atlanta into rural areas of Georgia, North Carolina, and South Carolina . . . to avoid law enforcement pressure in the Atlanta . . . region.” (Id. at 114; see also Def. Trial Ex. 30 at 7.) The DOJ’s criminal enforcement division, a sister division of the one bringing the present action, has specifically identified Alamance County as a national concern. (Def. Trial Ex. 30 at 8.) Throughout the time period at issue in this case, as detailed below, the DEA has actively enlisted ACSO’s assistance in enforcing the nation’s drug laws against drug traffickers in Alamance County.
Mexican DTOs send illegal drugs, such as cocaine, “directly from Mexico” to distribution hubs like Alamance County. (Doc. 152 at 100.) According to one ICE agent, drugs in North Carolina come “predominately from Mexico” and are received “mainly” by Mexican nationals in North Carolina. (Doc. 153 at 24.) If not seized in Alamance County, the drugs then move farther along the DTO distribution chain to cities like Chicago, Illinois, and states like Virginia and South Carolina. (Doc. 152 at 101.) Proceeds from the DTOs’ drug transactions are returned to drug trafficking operators in Mexico. (Id.)
5

Inside Alamance County, DTO “cell heads” run logistics for the distribution chains. (Id. at 116.) DTOs mostly employ family and friends in the United States as drug recipients, and family and friends in Mexico receive drug proceeds sent from the United States. (Id. at 112.) As a result, many American-based DTO cell heads are Mexican citizens with direct ties to Mexico. (Id. at 112, 116.) When DTO cell heads in places like Alamance County are arrested, they are replaced with DTO members from Mexico or the U.S. border. (Id. at 115–16.) Thus, according to DEA Agent Walter Serniak, Jr., while drug users are “not of any particular ethnicity,” (id. at 129), greater than 90% of those arrested in Alamance County in connection with drug trafficking are Hispanic. (Id. at 115–16.)
The increased presence of Mexican DTO cell heads in Alamance County has brought an increase in drugs, drug money, guns, and violence. DTO members often keep stash houses to store drugs, money, and guns. (Id. at 101.) According to Agent Serniak, the DTOs keep a “great number” of stash houses in Alamance County and often operate within the County’s mobile home parks. (Id. at 101, 104; see also Doc. 154 at 106–07.) For example, a recent DEA raid of a mobile home park in Alamance County yielded a seizure of hundreds of thousands of dollars in drug money. (Doc. 152 at 104; see also Def. Trial Ex. 4 (showing money seized from a stash house).) DTOs have become so
6

sophisticated and entrenched that they launder money through local businesses within the County. (Doc. 152 at 105.)
The DEA has conducted a number of raids in Alamance County, which have resulted in seizures of drugs and weapons connected to Mexican DTOs.4 For example, the DEA discovered approximately 12 kilograms of cocaine destined for the D.C./Baltimore area in 2005, 39 kilograms of cocaine in 2009, and one kilogram of heroin from the Green Level community.5 (Id. at 101–03, 109–10.) Drug-related weapons seizures are common, and their prevalence has increased in recent years. (Id. at 104–05.) The DEA has seized high-caliber handguns, rifles, and assault rifles. (Id.; Def. Trial Ex. 4.) And, with the confluence of money laundering, drugs, and weapons, the DEA has investigated drugrelated homicides in the County. (Doc. 152 at 111; Def. Trial Ex. 4.) Overall, the DEA’s operations have netted seizures of over 100 firearms, millions of dollars, and hundreds of kilograms of cocaine. (Def. Trial Ex. 4.)
United States Interstates 40 and 85 join as a common highway in Alamance County, dissecting the County horizontally at its midsection. The town of Green Level lies just north of the highways and offers an example of the collateral damage 4 Despite these operations, Agent Serniak testified that he never observed racial or ethnic profiling by ACSO. (Doc. 152 at 127.) 5 The street value of a kilogram of cocaine is about $30,000 dollars, and a kilogram of heroin is about $60,000. (Def. Trial Ex. 4.)
7

resulting from the growing drug trafficking in the County. The Green Level community faced, and continues to face, “a drug problem” from DTOs that has left many residents living in fear. (Doc. 152 at 62–63, 65.) Sandra McCollum, Green Level’s town clerk, testified that when “you would go down the streets, you could not get through to get to your home because drug activities was [sic] in the street.” (Id. at 63.)
Green Level’s mobile home communities, especially the Seamsters and Otter Creek mobile home parks, have been frequent sites of significant illegal drug and criminal activity. (Id. at 65, 67, 71, 75.) The Otter Creek mobile home park has suffered murders, drug activity, and kidnappings. (Id. at 75.) The owner of Seamsters has sought law enforcement help in combatting drug and gang activity in his park. (Id. at 72.)
Starting in 2002, Green Level’s council members — all African American — contracted with ACSO for placement of a “substation,” which included the assignment of an ACSO sergeant, at Green Level’s town hall. (Id. at 63.) Council members also requested increased ACSO policing, which required more frequent patrols and checkpoints (id. at 69), and more frequent inspections of the town’s mobile homes by both ACSO and the Alamance County Inspection Department to enforce town ordinances against abandoned trailers being used for criminal activity. (Id. at 68–70.)
8

By 2010, Alamance County’s rising drug trade led the DOJ and the DEA to designate the County a “High Intensity Drug Trafficking Area,” a classification reserved for counties representing “a high threat of drug trafficking, of violence.” (Id. at 106, 113, 115.) The County was one of only seven in the State to be so designated (id. at 115), and it retained the designation at the time of trial. (Id.) According to Agent Serniak, who participated in many of the DEA’s activities in the County, Mexican DTOs remain a “danger” to Alamance County residents. (Id. at 113.)
B. ACSO and Sheriff Johnson This is the environment in which Terry Johnson was elected ACSO Sheriff in December 2002 (following a 30-year career with the North Carolina State Bureau of Investigation (“SBI”)), a position to which he has since been continuously re-elected. (Doc. 154 at 55–56.) In North Carolina, the position of sheriff is constitutionally-provided for, and a sheriff’s office is a separate legal entity from each county. See N.C. Const., Art. VII, § 2; N.C. Gen. Stat. § 162-1; Cranford v. Frick, No. 1:05CV00062, 2007 WL 676687, at *3 (M.D.N.C. Feb. 28, 2007) (“[T]he Office of the Sheriff is separate and distinct from the Board of County Commissioners because a sheriff is elected by the people, not employed by the county.” (quoting Little v. Smith, 114 F. Supp. 2d 437, 446 (W.D.N.C. 2000)) (internal
9

quotation marks omitted)); Goodwin v. Furr, 25 F. Supp. 2d 713, 715–16 (M.D.N.C. 1998) (noting that a sheriff is an “independently elected official” and “a county is not liable for the acts of the sheriff and deputies”); Clark v. Burke Cnty., 450 S.E.2d 747, 749 (N.C. Ct. App. 1994) (“A deputy is an employee of the sheriff, not the county.”). ACSO is the largest law enforcement agency in the County, employing approximately 123 full-time deputies and 147 civil employees.
As the head of ACSO, Sheriff Johnson is vested with the authority to set its policies and procedures, which he implements both individually and through his officers. (Doc. 154 at 89; N.C. Gen. Stat. § 162-24.) The Government contends that, since he has taken control, Sheriff Johnson and ACSO have engaged in a pattern and practice of discriminatorily enforcing the law against Hispanics. The Government’s evidence as to the various ways in which this was allegedly done is addressed below.
1. The Introduction and Implementation of ICE’s 287(g) Program in Alamance County
A principal feature of the Government’s case rests on its claim that ACSO sought out and used federally-granted immigration authority in a discriminatory manner against Hispanics. (See Doc. 1 ¶¶ 47–51; Doc. 158 at 61–63.) The thrust of the Government’s claim is that Sheriff Johnson abused
10

authority granted under Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g), to direct ACSO officers to target and arrest Hispanics so that they could be detained at the Alamance County Detention Center (the “ACDC”) and ultimately processed by federal authorities for deportation.
Section 287(g) authorizes the Attorney General to delegate federal immigration enforcement authority to certain State employees. Known as “287(g) programs,” these arrangements permit state and local law enforcement officers to investigate, apprehend, and detain aliens in the U.S. See 8 U.S.C. 1357(g)(1). To investigate the possibility of employing a 287(g) program, Sheriff Johnson contacted the Sheriff of Mecklenburg County (Charlotte), North Carolina, who had the first such program in the State, to learn about his experience with it. (Doc. 154 at 157.) That sheriff found it to be the “best crime fighting tool that he had ever been involved with.” (Id.) Sheriff Johnson eventually flew to Alabama to observe how the program was implemented there, and, in about 2006, he spoke with ICE officers. (Id.) Satisfied with what he had learned, and at the urging of an Alamance County Commissioner, the Sheriff applied for participation in the program through ICE in Washington, D.C.; by January 2007, ACSO entered into a 287(g) agreement — known as the Memorandum of Agreement (“MOA”) — with ICE and Alamance County. (Id.)
11

According to Sheriff Johnson, the 287(g) program offered a tool to increase safety within the ACDC. (Id. at 81.) Prior to the 287(g) program, ACSO found itself often unknowingly placing rival Hispanic gang members within the same prison cell, causing fights, increasing medical costs, and giving rise to lawsuits. (Id.) Via the MOA, ACSO officers could better identify detainees and coordinate with federal agents who enforced immigration violations. (Doc. 149 at 127–28.) Also, the 287(g) program offered a financial incentive, as ACSO would be paid by ICE for the cost of housing all ICE detainees at the ACDC, irrespective of whether the detainees were originally arrested by ACSO, ICE, or another of the many law enforcement agencies using the ACDC as a jail. (Doc. 147 at 151–52.)
One aspect of the MOA was a “jail enforcement program,” by which ACSO officers trained through ICE would receive immigration enforcement certification and, once certified, would return to ACSO to enforce federal immigration laws within the ACDC. (Doc. 149 at 127–28.) ICE also stationed its own agents within the ACDC to supervise those 287(g)-certified ACSO officers. (Id. at 138–39; Doc. 152 at 157–58; Doc. 154 at 33– 34.) While anyone arrested by ACSO and jailed could be turned over to ICE within the ACDC, who could determine whether they were in the country illegally, the ACDC also served as a detention center for persons ICE and eleven other law
12

enforcement agencies arrested (independently of ACSO) in the surrounding counties. (Doc. 152 at 164; Doc. 154 at 23–24.) In practice, about only one detainee a week was processed through the ACDC’s 287(g) program, and the “bulk” of those were persons brought in from ICE’s other offices — not from ACSO. (Doc. 152 at 164 (“[T]he actual 287(g) processing[s] were not large numbers. . . . [T]he bulk of the alien population housed at Alamance County jail actually came in from ICE arrests made by ICE officers or other 287(g) officers in other counties.”).) The vast majority of ICE’s detainees were from Mexico. (Id. at 166.) Thus, while the Government at trial emphasized the financial incentive to ACSO for arresting and detaining persons who were not in the country legally, the reality was that the vast majority of the ICE detainees held at the ACDC were arrested by someone other than ACSO and were simply housed at the ACDC. As a result, ACSO had no involvement in their identification or apprehension.
Throughout its operation in Alamance County, ACSO’s 287(g) program received annual reviews from ICE. (Id. at 148–50.) ICE found it to be “an exemplary unit.” (Id. at 149.) In fact, after one review, ICE used ACSO’s information as an exemplar to provide to ICE’s other 287(g) units. (Id. at 149–50.) A 2011 review from ICE concluded, “The 287(g) program in Alamance County is adhering to the priorities and obligations set forth
13

in the MOA.” (Def. Trial Ex. 56 at 6.) The review also acknowledged that, in 2011, “no complaints of any kind have been received by the ACSO or ICE concerning the 287(g) program.” (Id. at 5.)
ICE eventually withdrew ACSO’s 287(g) MOA in 2012, however, following the complaints that led to the filing of the current lawsuit. (Doc. 149 at 126, 128.)
a. 287(g) Program’s TFO Early in Alamance County’s 287(g) program in 2007, Gloria Fichou, Special Agent-in-charge of Homeland Security (now retired) in ICE’s regional office over Alamance County, contacted Sheriff Johnson because the federal government hoped to designate an ACSO officer as a Task Force Officer (“TFO”) for ICE’s Homeland Security Investigations. (Doc. 153 at 17–18; Doc. 154 at 80.) A TFO is cloaked with 287(g) authority to perform investigations in the field, as opposed to simply in the jail. (Doc. 149 at 129.) Sheriff Johnson selected Deputy Jeff Randleman to serve as the TFO, based on Deputy Randleman’s experience with investigations. (Doc. 154 at 80.) At the time of Deputy Randleman’s selection in 2007, Fichou told Sheriff Johnson that Deputy Randleman could serve as a 287(g) detention officer in the ACDC and as a TFO under her supervision. (Id. at 80–81; Doc. 153 at 18–22.)
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Stationed in both Alamance County and ICE’s Winston-Salem office, Deputy Randleman worked as an ICE TFO for approximately one year. (Doc. 149 at 171–73; Doc. 153 at 20.) In addition to his certification as a 287(g) detention officer, he received training as a TFO. (Doc. 149 at 171; Doc. 153 at 20 (8 weeks of ICE training).) Fichou supervised Deputy Randleman, and an ICE special agent would sometimes work with Deputy Randleman as well. (Doc. 153 at 20.) Deputy Randleman’s investigations as a TFO required Fichou’s authorization. (Id. at 27.) Fichou, however, would occasionally turn over ICE investigations to ACSO as well. (Id. at 25.)
During this time, Deputy Randleman also remained employed by ACSO. (Doc. 149 at 171.) Thus, while a TFO, Deputy Randleman would receive work from both Fichou and Sheriff Johnson, and he would self-initiate investigations, as he had before. (Id. at 172–73, 177.) Any cases assigned to him by Sheriff Johnson were reported to his training officer, with Fichou receiving monthly reports about his ACSO work, but Deputy Randleman spent “more time” helping ICE during his time as a TFO.6 (Id. at 177–78.) Fichou acknowledged that she was aware
6 The Government cites Deputy Randleman’s statement that the only persons Sheriff Johnson or then-Deputy Britt requested that he investigate while acting as a TFO were Hispanic. (Doc. 149 at 208.) This statement has little capacity for persuasiveness. There is no indication how many times (if any) such requests were made apart from the limited specific ones detailed here, and Deputy Randleman clearly
15

of all 287(g) matters on which he worked. (Doc. 153 at 20–21.)7 While serving as a TFO, Deputy Randleman performed a number
of tasks. For one, he would assist in gang roundups. (Doc. 149 at 174.) Organized and coordinated by ICE and the DEA, these are operations in which law enforcement agents execute a number of arrest warrants on certified gang members. (Doc. 147 at 75; Doc. 149 at 174; see also Doc. 152 at 102–03 (stating that the DEA would also run gang roundups in Alamance County).) At ICE’s request and prior to executing warrants, ACSO’s gang unit would provide ICE’s 287(g) officers with a list of certified gang members. (Doc. 147 at 75; Doc. 151 at 124, 139–41.) Both before and after his time as a TFO, Deputy Randleman — who had access to several databases that included North Carolina Department of Motor Vehicle records — would conduct background checks on gang members prior to the roundup operations. (Doc. 149 at 173–75.) The majority of the gang members involved in these ICE operations were Hispanic, but Asian, South African,
spent more of his time working for ICE. Moreover, for the reasons explained below, none of the specific investigations ordered by ACSO provided at trial (which may be all of the Hispanic investigations performed by Deputy Randleman) evidences an intent to target Hispanics. 7 Deputy Randleman believed that Fichou was aware of his ACSO matters, too. (Doc. 149 at 178.) But any significant knowledge appears doubtful, as oversight for those matters was the responsibility of Sheriff Johnson.
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and South American gang members were also involved.8 (Id. at 136, 174.)
Deputy Randleman also worked on numerous identity fraud and theft cases while serving as a TFO. The Government cites one of the cases as evidence of ACSO targeting — an identity fraud case he investigated involving an individual named Marxavi AngelMartinez. (Id. at 179.) The case arose when an Alamance County employee reported to ACSO that a Hispanic employee at the Alamance County library was receiving maternity benefits and food stamps illegally through another person’s Social Security number. (Id. at 179–80, 201–02; Doc. 154 at 86.) ACSO checked the names of the library employees, and only one name stood out as being possibly Hispanic. (Doc. 154 at 87, 102.) Sheriff Johnson asked Deputy Randleman to investigate, and, working with an ICE agent, Angel-Martinez was identified as a suspect. (Doc. 149 at 179–80; Doc. 154 at 87.) The case was referred to federal prosecutors, who later charged Angel-Martinez with Social Security fraud. (Doc. 149 at 201.)
The Government also points to an instance when Deputy
8 In addition to gang roundups, ICE implemented (and continues to implement) within Alamance County a yearly program called “Operation Community Shield.” (Doc. 153 at 22–24.) This program requires ICE to “reach out” to local law enforcement agencies to retrieve a list of identified gang members in the community. (Id. at 23.) The program’s ultimate goal is “to identify, arrest, and remove undocumented nationals deemed to be gang members in the United States.” (Id. at 22–23.)
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Randleman assisted in an identity fraud investigation requested by Alamance County Manager David Smith. (Id. at 181–83; Doc. 154 at 26–28.) Smith asked ACSO Chief Deputy Timothy Britt to verify the Social Security numbers of several newly-hired employees. (Doc. 154 at 27.) Of the approximately fifteen names provided to Chief Deputy Britt, only one was not Hispanic. (Doc. 149 at 182.) Working with Deputy Randleman, an ICE Agent contacted the Social Security Administration with the list of names and learned that one of the names was fraudulent. (Id. at 182–83.)
The Government also cites Deputy Randleman’s TFO investigation of a complaint of identity theft raised by Alamance County resident Kay Oliver. (Id. at 183.) Oliver reported to Sheriff Johnson that he was the victim of identity theft, and the Sheriff instructed Deputy Randleman to “look into it.” (Id. at 184.) Deputy Randleman ascertained that Juan Ariano Vazquez in Weaverville, North Carolina, was illegally using Oliver’s Social Security number. (Id. at 183–85.) Deputy Randleman secured a warrant, arrested Vazquez in Buncombe County (approximately 200 miles away), and brought him to Alamance County to be charged. (Id. at 185–86.) The Government characterizes Deputy Randleman’s efforts as an extraordinary measure that reflects an intent to enforce the law more stringently against Hispanics, noting that Oliver had a
18

reputation in the community of being anti-immigrant. (Id. at 189–90.) Deputy Randleman testified, however, that Sheriff Johnson never directed him to make the trip, it was the only occasion as a TFO where he went outside the County to make an arrest, and executing a warrant outside of Alamance County is nevertheless a “part of regular law enforcement.” (Id. at 185– 86, 203–04.) Ultimately, the U.S. Attorney’s Office declined to prosecute the case (for reasons never explained at trial), although the Government never offered any indication that Vazquez’s arrest lacked probable cause. (Id. at 190–91; 204.) The case was prosecuted by the Alamance County district attorney. (Doc. 149 at 205.)
Finally, the Government cites a traffic accident investigation Deputy Randleman conducted while a TFO in 2007 or 2008. (Id. at 191; Doc. 154 at 167–68.) The matter began when Alamance County Commissioner Ann Vaughan came to Sheriff Johnson’s office, “raising Cain” following an accident. (Doc. 154 at 76.) She complained that the other driver was a Hispanic man who cut her off in traffic, caused her to hit his car, then left the scene of the accident to refuel. (Id. at 168.) Apparently before he left to put gas in his car, the driver told Vaughn not to call the police when she reached for her phone. (Id. at 168, 172.) This struck a nerve with Vaughan, who told the man, “[I]n this country, we report all accidents,” and then
19

called the Burlington Police Department. (Id. at 168.) The officers responded but ultimately declined to cite the other driver for the accident or for apparently having three adults and three children unbelted in the front seat. (Id.)
Vaughan was upset. She showed Sheriff Johnson her accident report and demanded that he do something. (Id. at 168–69.) Sheriff Johnson asked if the driver was in the country illegally, and she responded that a red flag went up because of his urging her not to call the police. (Id.) Sheriff Johnson said, “We are not supposed to do this, but let me see if my man is busy.” (Id. at 169.) He summoned Deputy Randleman, showed him a photo of the driver (apparently from a driver’s license), and said that the person, who appeared to the deputy to be Hispanic, lived in a mobile home park off North Church Street, an area known to be predominantly Hispanic. (Doc. 149 at 191– 92.) Sheriff Johnson gave Deputy Randleman no reason to suspect the driver was an illegal immigrant and simply directed him to “follow up on it.” (Id. at 192.)
The Sheriff explains that he was reluctant to get involved because traffic citations within the City of Burlington lay within the jurisdiction of the Burlington Police Department. Nevertheless, Deputy Randleman ran the individual’s name through the immigration database, and the search yielded no results. (Id. at 193.) The Sheriff reported to Commissioner Vaughn that
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the driver had a valid North Carolina driver’s license and was not an illegal immigrant. (Doc. 154 at 169–70.) With this, the investigation ended.
The Government characterizes Deputy Randleman’s inquiry as an abuse of his TFO authority and evidence of an intent to target Hispanics. While the date of the inquiry was not made clear at trial, if the matter occurred during Deputy Randleman’s role as TFO, he had at least apparent authority to investigate the driver’s immigration status. It bears noting that Vaughn presented at trial as an outspoken and assertive witness; she is also a political adversary of the Sheriff. The court is persuaded that, but for Vaughn’s persistence and will, the Sheriff never would have gotten involved in the inquiry.
b. Termination of TFO Position In about 2008, an ICE audit revealed an issue with the MOA as to Deputy Randleman’s TFO authority. (Doc. 149 at 172; Doc. 152 at 160; Gov’t Trial Ex. 58; Def. Trial Ex. 54.) Jill Arndt, ICE supervisor (now retired), had reported a concern about it but had been “getting conflicting information from ICE[’s] Office of Investigations” about ICE’s ability to use Deputy Randleman as a TFO. (Doc. 152 at 160.) According to Fichou, “there was no clearcut policy in regards to the 287(g) program” at the time she approached Sheriff Johnson to request a TFO. (Doc. 153 at 22.) And Fichou had never questioned Deputy
21

Randleman’s authority to operate as a TFO. (Id. at 21–22.) ICE eventually interpreted the MOA not to authorize Deputy Randleman to be a TFO within ICE’s Homeland Security Investigations (id. at 21–22), so ICE withdrew Deputy Randleman’s TFO authority, and he promptly discontinued any further work as a TFO, returning to his position as a 287(g) detention officer in the ACDC. (Doc. 149 at 172, 175.)
Up to and during trial, the Government portrayed Sheriff Johnson’s designation of Deputy Randleman as TFO, the deputy’s activities as a TFO, and ICE’s withdrawal of TFO authority as evidence that ACSO abused its authority under the 287(g) program by engaging in investigations outside the permission granted by the MOA. However, federal ICE agents — called by the Sheriff — made clear that this was not the case. Fichou, Special Agentin-charge of ICE’s regional office over Alamance County at the time, testified credibly at trial that it was she who had approached the Sheriff about the possibility of such an arrangement (Doc. 153 at 18) and that any mistake with regard to the TFO’s authority was ICE’s, not ACSO’s (id. at 21–22). Arndt confirmed this assessment: “I believe it was purely an ICE issue as far as ICE, and don’t get me wrong. Nobody did this on purpose. ICE was giving conflicting information; and once it was discovered in the management audit, as it was supposed to, it was fixed.” (Doc. 152 at 166.)
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c. Gun Permit Investigations Under North Carolina law, county sheriffs’ offices bear responsibility for issuing gun permits. See N.C. Gen. Stat. § 14-404. The law specifically requires that county sheriffs verify that “it is not a violation of State or federal law for the applicant to purchase, transfer, receive, or possess a handgun.” Id.9 In accordance with the law, a clerk at ACSO handles background checks for gun permits with subsequent review by ACSO captains and a major. (Doc. 154 at 38–39.) Former Chief Deputy Morris McPherson oversaw this process at ACSO until he retired in 2009.10 (Id. at 41.) Through the duration of the 287(g) program, ACSO used its access to immigration databases to investigate individuals applying for gun permits. (Doc. 149 at 132–33.) While working as a certified ICE agent in the ACDC, ACSO Lieutenant Randy Denham ran searches through these databases following requests from ACSO Majors Shelton Brown and Monte Holland. (Id. at 133, 142–43.) These searches checked criminal history and, because it is a violation of federal law for aliens illegally or unlawfully in the United States to possess a firearm, see 18
9 N.C. Gen. Stat. § 14-404 was amended several times during the period of inquiry for this case and has also been amended since the Government initiated its lawsuit. Neither party, however, contends that any amendment to the statute affects the court’s analysis. 10 Chief Deputy McPherson died in 2012. (Doc. 154 at 41.)
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U.S.C. § 922(g)(5), immigration violations. (Doc. 149 at 152.) At times, Lieutenant Denham conducted such checks weekly. (Id. at 134.)
The Government correctly contends that the use of any ICE database by ACSO officers (other than by a TFO before such authority was rescinded) for gun application checks exceeded ACSO’s authority under the MOA because the applicants were not in ICE custody. Lieutenant Denham did not appear to be aware of that, however, and he maintained that his ICE supervisor was aware of his investigatory background checks and approved them. (Id. at 143.) Fichou and Arndt — both female — denied awareness of the background checks (Doc. 152 at 169; Doc. 153 at 29–30), yet Lieutenant Denham’s statement is still credible because he testified that he stopped the checks in 2011, once his ICE supervisor — a male — raised a concern. (Doc. 149 at 133 (“[T]he supervisor over deportation and detention for ICE, come to me, and he was concerned that this may be a problem, and he decided that we need to stop.” (emphasis added)), 147, 151.) Sheriff Johnson was never aware that ACSO used the 287(g) program to carry out ACSO’s statutory obligation to investigate gun permits. (Doc. 154 at 88.)
The Government does not suggest that the checking of ICE databases in and of itself violated any law, and presumably ACSO officers could lawfully ask ICE to do so in order to discharge
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their obligation to avoid issuing gun permits to ineligible aliens. The Government’s main contention seems to be that all names submitted for background checks sounded Hispanic (Doc. 149 at 134), yet not all applicants were Hispanic, thus evidencing a potentially discriminatory investigative practice. However, the Government elicited no evidence as to the makeup of gun permit applicants or ACSO’s procedures for checking such applications. Thus, it is unknown whether ACSO checked all applicants’ names for legal status and through some different means determined that the others were U.S. citizens. Although the majors were the officers referring the names to Lieutenant Denham, the Government did not call Major Holland and, when it called Major Brown as a witness, failed to ask a single question about the gun permit background checks.
d. ACSO’s Processing and Booking Procedures The Government contends that ACSO changed its arrestee booking procedures to target Hispanics “for heightened immigration enforcement” after entering into the 287(g) MOA. (Doc. 1 ¶¶ 47–51; Doc. 158 at 65–66, 132.) According to the Government, after the start of the 287(g) program, ACSO required that all persons arrested be “fully booked” into the ACDC, subjecting more individuals — namely Hispanics — to questioning about their immigration status. (Doc. 158 at 65, 132.) The Government relies mainly on the testimony of North
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Carolina Magistrate Susan Wortinger. (Id. at 61–62, 65–66,

132.) Magistrate Wortinger has served 12 years in her position,

having previously been employed by ACSO from 1996 to 2002.

(Doc. 149 at 155–56.) Her office is in the ACDC. (Id. at 157.)

According to Magistrate Wortinger, before ACSO participated

in the 287(g) program, it only booked felony arrestees into its

jail. (Id. at 159-60.) She stated that ACSO’s policy changed

after implementation of the 287(g) program to require persons

arrested for misdemeanors to be booked as well, even if they

could pay their fine or the bond. (Id.; see also Doc. 147 at

43–44 (Evans stating that the policy “probably” changed around

2007).) Magistrate Wortinger observed more Hispanics come

through the ACDC after the 287(g) program and the change in

booking procedure.

(Doc. 149 at 162.)

She, however,

inaccurately believed that the 287(g) program lasted “[m]aybe

two years,” when it in fact lasted closer to five years. (Doc.

149 at 158; id. at 126, 128; Doc. 154 at 157.) Citing this

testimony, the Government contends that ACSO changed its booking

procedures following the 287(g) program to check the citizenship

of misdemeanor arrestees to facilitate their deportation. (Doc.

158 at 132.) The persuasive evidence at trial, however,

conflicts with this account of ACSO’s use of the 287(g) program.

Sheriff Johnson changed ACSO’s procedures well before

implementation of the 287(g) program. North Carolina law

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permits law enforcement to photograph and fingerprint arrestees,
whether or not they are later committed to a jail, unless they
are only charged with certain lower level motor vehicle
misdemeanors. N.C. Gen. Stat. § 15A-502(a).11 In accordance
with the law and several years before implementation of the
287(g) program, Sheriff Johnson instituted a policy requiring
officers to fingerprint and photograph felony as well as
misdemeanor arrestees, including those who have no driver’s
license and cannot be identified, irrespective of ethnicity or
race. (Doc. 154 at 58–59; see also Doc. 147 at 33 (Perry —
called by the Government — testifying that Sheriff Johnson
changed the policy a few years before the 287(g) program was
implemented).)12 The Sheriff explained that he did this to
remedy a developing problem:
[T]he reason for that was that we were having people arrested under different names; and when I come in the office, we had an overcrowding in the old jail because our new jail had not been finished. And when I went
11 Even when charging those lower level motor vehicle misdemeanors, North Carolina law enforcement may still photograph a person at the scene where cited or, if arrested, at the jail if that person fails to produce a valid driver’s license and the officer has reasonable suspicion concerning his or her true identity. N.C. Gen. Stat. § 15A502(b). 12 ACSO Deputy Steven Perry testified that in the mid-2000s “we were told to start — anybody we brought in on an arrest, we had to fingerprint for any charge, misdemeanor or felony” and not just for felonies as in the past. (Doc. 147 at 26.) The court does not read this summary description of the new policy to necessarily contravene the limitations of N.C. Gen. Stat. § 15A-502.
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down to look at the records, I was seeing people’s same picture but under different names, and also people were not showing up for court when they were arrested or given a citation. (Doc. 154 at 58.) The new procedure, permitted by North Carolina law, enabled ACSO to properly identify all persons arrested. The evidence at trial was unclear as to how Sheriff Johnson’s photographing and fingerprinting policy affected, if at all, the number of individuals “booked” into the ACDC and subject to 287(g) questioning. After an arrested individual was brought to the ACDC, the arresting officer completed arrest and property sheets. (Doc. 152 at 135–38; see also Doc. 154 21–23.) In doing so, the arresting officer inquired whether the arrestee was a U.S. citizen. (Doc. 152 at 138.) This process was completed “in the prebooking area” where the arrestee went before the magistrate. (Id.) Then, after a judicial officer (usually the magistrate, but sometimes a judge if not at the ACDC) found probable cause for the arrest, he or she set the arrestee’s bond and determined whether the individual could pay the bond so as to be released. (Doc. 152 at 138–39; Doc. 154 at 23–24.) If an arrestee could not meet bond, he or she would proceed to the booking area and there be subject to possible 287(g) questioning depending on the response to the citizenship question provided on the arrest and
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property sheets. (Doc. 152 at 138–40; see also Def. Trial Ex.
52.) If an arrestee could meet bond, however, there was
persuasive evidence that he or she might be able to leave
without being subject to 287(g) questioning.13
The Government’s complaint further alleged that arrestees
are referred for 287(g) questioning based on ACSO officers’
assumptions about nationality or ethnicity and thus that ACSO
targets Hispanics for immigration questioning. (Doc. 1 ¶¶ 48,
50–51.) To support this allegation, the Government relies on
its leading question to Major Alan Miles, who agreed that,
during the 287(g) program, “it was important to [him] to make
sure that people who appeared to be of foreign descent were
booked into the jail.” (Doc. 149 at 214.) This was the sole
statement regarding the misuse of the 287(g) program within the
ACDC, and there is no other evidence on record to support it.
13 Sergeant Dan Cubino, a Hispanic officer who worked in the ACDC during the entire 287(g) program and whom the court finds highly credible, testified that, if an arrestee made bond, the individual did not enter the booking area and thus presumably would not be subject to 287(g) questioning. (Doc. 152 at 138-40.) Others testified, though, that arrestees subject to fingerprinting and photographing at least had to enter the booking area, so that detention officers could fingerprint and photograph them. (Doc. 147 at 43 (Evans explaining that detention officers would fingerprint and photograph arrestees but making no mention as to whether they would also then be subject to 287(g) questioning); Doc. 149 at 160 (Magistrate Wortinger testifying that “[i]f [an arrestee] had the money for the fine or the bond, they still had to go into the jail”); Doc. 154 at 22–23 (Chief Deputy Britt stating that detention took arrestees’ photographs and fingerprints so that ACSO could turn officers “back out on the street”).) Neither party satisfactorily addressed whether, after fingerprinting and photographing, an arrestee would likely be subject to 287(g) questioning despite meeting bond. (See Def. Ex. 53.)
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Even taking Major Miles’ response at face value, there is no evidence that he or other detention officers, who were stationed in the ACDC, could control whether an arrestee was booked into the jail.
Moreover, there is no evidence as to how many (or few) Hispanics arrested by ACSO were booked into the ACDC and subjected to 287(g) questioning. Certainly, the Government never presented any booking reports or other similar evidence from ICE or ACSO to support such a claim. Rather, ICE witnesses called by ACSO, explained that ACSO’s 287(g) officers processed only about one detainee per week at the ACDC through the 287(g) program, and “the bulk” of those detainees actually came from other ICE offices. (Doc. 152 at 163–64.) Thus, in actuality, ACSO officers contributed only infrequently to the number of ICE detainees housed in the ACDC.
To the extent that Magistrate Wortinger observed more Hispanics “come through the jail” after the implementation of 287(g), this observation aligns with the testimony of former ICE Special Agent Jill Arndt. (Doc. 149 at 162.) At trial, she explained,
[T]he bulk of the alien population housed at Alamance County jail actually came in from ICE arrests made by ICE officers or other 287(g) officers in other counties, and Alamance County jail was actually housing ICE detainees, and the bulk of the numbers at Alamance County jail were not 287(g) arrests from Alamance County. They were, in fact, people who had
30

been arrested from ICE officers at other 287(g) locations, and we housed those individuals at the Alamance County jail. (Doc. 152 at 164.) Chief Deputy Britt added that eleven “contributing” State law enforcement agencies also used ACSO’s facilities for booking. (Doc. 154 at 24; see also Doc. 152 at 138–40 (Sergeant Dan Cubino testifying that, no matter the jurisdiction, an arrestee was taken before the magistrate).) Thus, Magistrate Wortinger’s observations of increased Hispanics at the ACDC are consistent with Arndt’s account of the 287(g) program’s operations but reflect an apparent misunderstanding of the reasons for the increased traffic. The increase in traffic was predominantly caused by some combination of ICE’s arrests and those of the eleven law enforcement agencies, other than ACSO, using the ACDC. Lastly, Magistrate Wortinger testified that, during the operation of the 287(g) program, she saw Officer Troy Anthony on one occasion with a “stack” of alien registration cards and U.S. passports. (Doc. 149 at 163–64.) Officer Anthony referred to them as his “collection.” (Id. at 164.) Magistrate Wortinger saw one of the documents, which appeared to belong to a Hispanic. (Id.) She did not know whether the documents were forged and reported her observation to Officer Anthony’s supervisor, Brandon Wilkerson, yet she never followed up to determine what, if anything, became of it. (Id. at 164–65, 166-
31

67.) She concedes that she is unaware of ACSO’s policy for

taking custody of forged instruments or what the deputies

actually did with forgeries they came across during their

investigations. (Id. at 166.) Although Officer Anthony

“regularly” came before her for some period of time, she never

found that any of his arrests lacked probable cause. (Id. at

167.)

Officer Anthony denies that he ever referred to a personal

collection to Magistrate Wortinger or that he kept any seized

items permanently in his possession. (Doc. 152 at 85–86.) The

court credits Magistrate Wortinger’s testimony.

Officer

Anthony’s conduct on this occasion was a violation of ACSO’s

evidence collection policy, which required that all documents

seized from detainees be preserved in the evidence locker.14

(Id.; Doc. 154 at 77–78.)

e. Fairness Alamance

In 2008, as a result of publicity about the 287(g) program,

a grass-roots collection of individuals in Alamance County

formed Fairness Alamance to air concerns about what the group

believed was ACSO’s unfair treatment of Hispanics. (Doc. 151 at

143–44.)

Members attended Alamance County Commissioners’

meetings, held their own meetings, and organized a candlelight

14 The Government does not tie this event to any claim in the case. (See Doc. 158 at 60–61 (referring to testimony in Findings of Fact).)

32

vigil in support of their views. (Id. at 148–50.) In response to the group’s expressed concerns, Sheriff
Johnson invited its members to the ACDC in 2008, provided a tour of the facility, outlined the 287(g) program, and addressed members’ questions. (Id. at 151.) In February 2009, the Sheriff also gave a presentation on ACSO’s traffic stops at an Alamance County Commissioners’ public meeting. (Id. at 151–52.) The presentation provided information based on the traffic stop data ACSO sent to North Carolina’s SBI. (Id.) In his presentation, Sheriff Johnson invited citizens to personally examine the traffic stop data on the SBI’s website. (Id. at 152–53.)
A leader of Fairness Alamance, Laura Roselle, who served as Professor of Political Science and Policy Studies at Elon University, took the Sheriff up on his invitation. (Id. at 142, 153.) On February 16, 2009, following her review, Professor Roselle emailed Sheriff Johnson, hoping to discuss the SBI’s data. (Id. at 154–55.) Sheriff Johnson did not respond to her email, and so she asked him about the data and ACSO’s traffic stop forms at the next County Commissioners’ meeting. (Id. at 155.) The Sheriff incorrectly responded that he did not have the forms and that they were in Raleigh. (Id. at 154–55.) Ultimately, Professor Roselle learned that the SBI’s data contained four times as many citations as traffic stops;
33

although, she did not realize that ACSO’s citations also include non-traffic related offenses. (Id. at 158, 182.) Upon finding this discrepancy, and rather than following up with the Sheriff to notify him of a potential problem, Professor Roselle instead met with a County Commissioner and went to a local newspaper to report what she considered to be inconsistencies in the numbers. (Id. at 159.)
After the news story went to print, ACSO acknowledged that it had independently found a “glitch” in its computer software, causing the underreporting of traffic stops. (Id.) ACSO had been in the process of changing its software for the third time in a year. (Doc. 154 at 20.) ACSO informed the SBI of its underreporting, found a new software provider to correct the problem, and instituted administrative review over its trafficstop data. (Id.) After these changes, Professor Roselle’s requests for corrected data went unanswered. (Doc. 151 at 161.)
In addition to traffic stop data, Professor Roselle made a request to ACSO for information on the implementation of 287(g) — specifically for ICE’s detainee records.15 (Id. at 161–62.) ACSO referred her to ICE for access to those records. (Id. at 162.) Undeterred, during a March 2009 County Commissioners’
15 There is no record of a federal FOIA request or North Carolina public records request under N.C. Gen. Stat. § 132-1.
34

meeting, Professor Roselle again requested the records — this time publicly — from the Sheriff, who was in attendance. (Id. at 163–64.) And after the meeting, she approached him to follow up. (Id. at 164.) He explained that, under the MOA with ICE, he lacked the authority to release the records, so she needed to request them from the federal government — specifically ICE.16 (Doc. 154 at 64.) At some time during his discussion with her, Sheriff Johnson placed his hand on Professor Roselle’s shoulder; this caused her to bristle, and she became quite upset. (Id.) Sheriff Johnson reacted by saying he was “done” with her, raising his hands in the air. (Doc. 151 at 165; Doc. 154 at 64– 65.)
The Government offers this encounter as evidence of antiimmigrant animus by the Sheriff. This is an over-read of the situation. Professor Roselle presented at trial as a deeplymotivated advocate who was personally opposed to what she perceived as anti-immigrant efforts by ACSO, distrusted Sheriff Johnson, and was zealous in her persistence.17
16 Professor Roselle conceded at trial that she never pursued her requests with ICE. (Doc. 151 at 176–78.) 17 Professor Roselle testified to several situations where she believed ACSO surveilled her and tapped her phone, although no proof of such was ever presented. She ultimately moved to a neighboring county solely because of her dislike of ACSO. (Doc. 151 at 167–73.)
35

2. ACSO Arrest Policy and Practice The Government contends that Sheriff Johnson orders officers to arrest Hispanics, rather than to cite or warn them. (See Doc. 1 ¶¶ 5, 29; Doc. 158 at 2–3, 9–14.) The Government’s proof on this point relies on several witnesses and on statistical evidence (largely through Dr. MacDonald, its expert criminologist and statistician, discussed below). The Government presented three witnesses who testified that, during one ACSO staff meeting, and perhaps two, Sheriff Johnson directed officers to arrest Hispanics stopped for traffic violations. Kenneth Evans, former ACSO chief deputy, testified that, at a monthly staff meeting (normally held the second Wednesday of every month) around 2007, Sheriff Johnson told officers that if they “went to an Hispanic’s house or [they] stopped one for a traffic violation or if it was a violation, that [they] were to bring them to jail and not write a citation.” (Doc. 147 at 45.) Evans said he did not pass the instruction on to officers under his command, however, “[b]ecause I knew it was wrong,” and there is absolutely no evidence he ever carried it out. (Id. at 45–46.) Similarly, Officer Roger Lloyd testified that at a monthly staff meeting Sheriff Johnson told them that Hispanics without a driver’s license should be arrested and brought to jail, where they would be run through the 287(g) program. (Id. at 151–54.) Officer
36

Lloyd said that the Sheriff had a similar conversation with him separately and explained that doing so would allow Hispanic detainees to be run through the 287(g) program to be deported, allowing the County to receive money for the federal detention. (Id. at 151–52.) Officer Lloyd was unable to say when such discussion occurred but insisted that he never discriminated against any Hispanic and knew of no ACSO officer who ever had. (Id. at 152–54, 168.) He also conceded on cross-examination that he understood (and his personal practice was) that if he could not identify any suspect, he would arrest him or her so they could be processed and their identity determined. (Id. at 170.) Finally, Brenda Cole — a former ACSO officer — testified that she heard Sheriff Johnson give the same instruction (to arrest Hispanics) at a monthly staff meeting in 2007 or 2008, but could offer no other context for the statement. (Doc. 151 at 5, 7.) Like the others, Cole insisted that she never carried out the instruction. (Id. at 6.)18
No party examined any of these three witnesses as to the context of the statements, but Sheriff Johnson did provide some context and presented evidence challenging the credibility of all three. The Sheriff had fired Officer Lloyd in 2009 for
18 All three witnesses started at ACSO before Sheriff Johnson became sheriff; Officer Lloyd left in 2009, Cole in 2011, and Evans in 2011. (Doc. 147 at 36–38, 57–58, 144, 179; Doc. 151 at 3; Doc. 154 at 41– 42.)
37

lying to an Alamance County Assistant District Attorney. (Doc. 147 at 162, 171–75; Doc. 154 at 43–44; Def. Trial Ex. 67.) He had also fired Evans’ wife and nephew from ACSO and demoted Evans upon taking office. (Doc. 154 at 73–74.) And, Cole had supported Sheriff Johnson’s opponent, Ron Parrish, in the most recent election. (Doc. 151 at 6.)
Nine ACSO employees — some of whom were offered by the Government — testified that they had never heard Sheriff Johnson give an instruction to single out Hispanics for arrest or to do so irrespective of whether they could show identification. (See Doc. 150 at 30, 134, 157, 184; Doc. 151 at 136; Doc. 152 at 175– 76, 215; Doc. 154 at 4, 37.) Sheriff Johnson similarly denied ever doing so. (Doc. 154 at 56–57.) Rather, the Sheriff stated that his command left all arrests to the officer’s proper discretion, so that “if” an officer arrested an individual stopped without any identification, the individual should be brought in for processing. (Id. at 57–58.) Lieutenant Allen, who attended many of the monthly meetings between 2007 and 2013 and recorded his notes in a binder, never heard any statement singling out Hispanics for arrest, and his contemporaneous notes, albeit not exhaustive, reflect no instruction to support the claimed statement. (Doc. 152 at 215–18; Doc. 153 at 7–9.) ACSO Detective Carlos Rossi, who is Hispanic and has been with ACSO for five and a half years, never heard the Sheriff or
38

anyone else discriminate against or target Hispanics. (Doc. 153 at 212; Doc. 154 at 4.)
There was no evidence of a written ACSO policy. ACSO’s own evidence, while not entirely consistent, did offer some context for such claims, however. ACSO Chief Deputy Britt testified that he understood ACSO’s policy to be that an officer was to arrest any stopped individual whom the officer cannot identify and who does not have a driver’s license or other method of identification.19 (Doc. 154 at 37–38.) Lieutenant Brian Allen similarly described ACSO’s arrest policy as follows: “[I]f it was anybody that we couldn’t positively identify, . . . they needed to be arrested, and that’s anybody.” (Doc. 152 at 215– 16.) As noted, this is what Officer Lloyd explained as well.
However, the more accurate articulation of what was actually implemented by ACSO officers is the following: if an officer stopped an individual without valid personal identification who cannot be reasonably identified, the officer may arrest the individual at the officer’s discretion, assuming the arrest is for an otherwise arrestable offense. Captain Kimberly Wilson, head of ACSO’s patrol division, stated that “[a]n officer is to use his discretion” when facing an 19 As noted below, this is in fact what transpired with the stop of Jose Luis Arzola, Jr., the only witness offered by the Government as an example of alleged targeting. Once he provided identification (but not proof of citizenship) after being stopped, he was not arrested, cited, or warned, but permitted to go about his way.
39

individual stopped without any identification. (Doc. 150 at

136, 157.) When asked about Sheriff Johnson’s arrest policy,

Captain Wilson reaffirmed, “I expect [officers] to use their

discretion, their sound discretion.” (Id. at 157–58.) Major

Shelton Brown — head of operations, which includes the patrol

division — echoed Captain Wilson’s reiteration of the arrest

policy. (Id. at 165–66.) Major Brown testified that officers

making a traffic stop had sole discretion to warn verbally, warn

in writing, cite, or arrest. (Id. at 173–74.) He further

maintained that complete officer discretion remained following a

traffic stop, “even if the driver doesn’t have a valid driver’s

license.” (Id. at 173–74.) In sum, the officer “make[s] the

choice” to arrest. (Id. at 173.) All of this is consistent

with Sheriff Johnson’s articulation of ACSO’s policy, which

appears to comport with N.C. Gen. Stat. § 15A-502.

As to the statements attributed to Sheriff Johnson, it is

difficult to accept that the Sheriff made them as portrayed,

given the lack of context offered for them and the number of

ACSO officers who stated credibly that they never heard them.

Had the Sheriff made these statements as characterized, it is

implausible that an officer or employee (some of whom are

Hispanic) would not have questioned his statements and

complained.

This is especially true in light of the

Government’s evidence that all orders of the Sheriff were

40

expected to be obeyed and that all three individuals who claimed to hear such a directive universally testified that they never followed it.
3. Orders to Target Hispanics The Government’s complaint alleges that during a staff meeting after January 2007, Sheriff Johnson yelled “bring me some Mexicans” while banging on the table, and on another occasion instructed his staff to “go out there and catch me some Mexicans.” (Doc. 1 ¶ 27(a)–(b).) At trial, the first claim was supported by Officer Lloyd, who testified that he never heard the Sheriff use the word “Mexicans” but heard him say at one unidentified staff meeting: “bring me Hispanics.” (Doc. 147 at 153–54.) In eliciting this statement, the Government made no effort to provide any context, and none was given. There was no testimony about banging on the table, and no other witness supported Officer Lloyd’s claim. Sheriff Johnson denied ever making this statement. (Doc. 154 at 57–58.) The court is doubtful that the claimed statement was made, especially in the unsupported context the Government contends. As to the second claim, the Government presented testimony from two former ACSO officers. In one instance, according to Corporal Adam Nicholson, Sheriff Johnson once said, “Go get the Mexicans.” (Doc. 147 at 81.) While he could not recall the
41

context, it was most likely when the owner of the Rocky Top mobile home park, which has a significant Hispanic population, came to Sheriff Johnson’s office to complain about crime. Sheriff Johnson summoned Corporal Nicholson, who reported that the “Bandidos,” a Mexican gang operating in that area, had been breaking and entering into trailers in the mobile home park. (Id. at 78, 88–89.) Corporal Nicholson testified that he interpreted the Sheriff’s comment as a command to arrest every Hispanic in the park. (Id. at 86–87.) But as Corporal Nicholson conceded, because the park was predominantly Hispanic, such an interpretation would have resulted in the arrest of many, if not most, of the owner’s paying customers. (Id.) Insofar as the owner, who was present, never objected to whatever the Sheriff said or directed, Corporal Nicholson’s interpretation appears overstated and conflicts with his own testimony. In fact, Corporal Nicholson admitted he never arrested anyone, but instead set up a license check point near the park on his own accord “to appease” the Sheriff. (Id. at 78, 87–89.) When pressed further, he conceded that he never intended to arrest non-violent or non-criminal Hispanics, but was after the “Bandidos,” who were the “people who broke the law that day”; and he inferred that is what the Sheriff meant, too. (Id. at 88–89.) Corporal Nicholson also denied that he ever targeted any Hispanics or knew anyone at ACSO who did. (Id. at
42

92.)20
This understanding is consistent with the testimony of
Sergeant Christopher Crain, the Government’s other witness, who
worked with Corporal Nicholson and recalled an incident when
Johnson said, “go get those Mexicans.” (Doc. 151 at 132.)21
Sergeant Crain recalled the Sheriff making the statement upon
learning that a Mexican gang had spray-painted an ACSO patrol
car. (Id. at 132–33, 136–37; Doc. 154 at 69–70.) Notably,
Crain’s testimony differs from the Government’s claim that
Sergeant Crain heard an order to “[g]o get some Mexicans.”
(Doc. 158 at 11, 122 (emphasis added).)
The persuasive evidence is that Sheriff Johnson stated
“[g]o get those Mexicans” or “the Mexicans” in reference to a
specific Mexican gang then under ACSO investigation for criminal
activity. It does not indicate that the Sheriff ever directed
20 Corporal Nicholson also testified that, in front of the mobile home park owner, Sheriff Johnson told him to “arrest every chili shitter in the park.” (Doc. 147 at 77.) Corporal Nicholson has some reason for bias, as he was reprimanded for sexual harassment by Sheriff Johnson. (Doc. 147 at 92–93.). Sheriff Johnson denies he made this statement (Doc. 154 at 70), and Sergeant Christopher Crain — also present at the time — denies ever hearing any such statement. (Doc. 151 at 136.) Even assuming this epithet was used, it is some evidence of ethnic bias but, for the reasons noted, even Corporal Nicholson did not interpret it as any command to arrest non-violent or law-abiding Hispanics, but rather as a reference to the Bandidos gang members thought to be committing the crimes in the park.
21 This is also consistent with Sheriff Johnson’s testimony that he told Corporal Nicholson and Sergeant Crain during a meeting to “go down there and get those Mexicans,” referring to the Mexican gang committing the crimes. (Doc. 154 at 70.)
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his deputies to arrest individuals simply because they were from Mexico or were Hispanic.
4. ACSO Checkpoint Policy and Implementation The Government contends that ACSO targets Hispanics through its enforcement of vehicle checkpoints. (Doc. 1 ¶¶ 41–46; Doc. 158 at 139–46.) ACSO has a written checkpoint policy in its internal policy manual which outlines the purposes and procedures for its checkpoint operations. (Gov’t Trial Ex. 113.) The general purpose of the policy “is to establish guidelines and procedures for members of [ACSO] to conduct suspicion less [sic] seizures of vehicles at vehicle checking stations (checkpoints).” (Id. at 1.) The policy provides for three permissible purposes or types of checkpoints: “standard”; “informational”; and “special operations.” (Id. at 2–4; Doc. 154 at 104–05.) Standard checkpoints were the most commonly used and aim to “determine compliance with motor vehicle laws,” such as “verification of drivers’ licenses, vehicle registration checks, insurance checks, seat belt compliance checks[,] and driving while impaired checks.” (Gov’t Trial Ex. 113 at 2; Doc. 150 at 82.) To set up a standard checkpoint, the policy states that the checkpoint “shall be approved, in writing, by a Sheriff’s Office supervisor or their designee.” (Gov’t Trial Ex. 113 at 2.) For standard checkpoints, supervisors must complete ACSO’s “Checking
44

Station Authorization Form.” (Id.) Informational checkpoints

generally seek “motorists’ assistance in solving a crime” and

require supervisor approval — written or unwritten — prior to

setup. (Id. at 3 (stating that approval must be made “in

advance”).)

Once in place, standard and informational

checkpoints must “provide for the stopping of every vehicle.”

(Id. at 1.) Special operations checkpoints focus on “the

apprehension of a suspect who poses a danger to life and

property or the rescue of a hostage or abducted person” and,

under the policy, do not require the stopping of every passing

vehicle. (Id. at 1, 3–4.)

ACSO’s checkpoint policy does not require officers to

complete a stop form — a North Carolina SBI form filled out by

ACSO officers following a traffic stop — for every vehicle

passing through a checkpoint, presumably for practical

logistical reasons. (See Gov’t Trial Ex. 59.) Instead, the

policy explicitly ensures that only those vehicles physically

detained at a checkpoint will require the completion of a stop

form. For standard checkpoints, the policy does not require

retention of any driver information, and, only after reasonable

suspicion is found can an officer detain a driver for a

reasonable time. (Id. at 2–3.) For informational checkpoints,

the policy prohibits ACSO officers from asking for drivers’

licenses or any other documentation. (Id. at 3.) Finally, for

45

special operations checkpoints, the policy does not oblige the checking of driver information, nor does it even require that every vehicle passing through the checkpoint be stopped. (Id. at 1, 3–4.) Therefore, at checkpoints, ACSO officers fill out stop forms when an officer detains an individual beyond the initial physical stop.
ACSO Captain Kimberly Wilson reviews checkpoint paperwork filled out by ACSO officers. (Doc. 150 at 151; see also Gov’t Trial Ex. 113 at 2 (requiring completion of “Checking Station Authorization Form” for standard checkpoints).) She believes she would “notice” if officers conducted “checkpoints in the same or similar locations repeatedly.” (Doc. 150 at 151–52.) Major Shelton Brown confirmed that she performed this review. (Id. at 181–82.)
ACSO conducted at least four hundred and thirty-five checkpoints in the County from 2009 through 2012.22 (Doc. 153 at 93.) Some of those occurred near mobile home parks with predominately Hispanic residents. (Doc. 147 at 156–57, 188–90, 213; Doc. 148 at 18; Doc. 150 at 85.) ACSO also patrolled at or near these mobile home parks on occasion. (Doc. 149 at 216–17;
22 The Government suggests that there were more, pointing to testimony from a few deputies that they conducted checkpoints on a “daily basis.” (See Doc. 158 at 75 n.23; see also Doc. 150 at 81–82.) Because the policy appears to require checkpoint authorization forms for only standard checkpoints, it is possible there were more nonstandard checkpoints. But there was no evidence of any alleged activity at any unreported checkpoint.
46

Doc. 153 at 9; Doc. 154 at 106–07; Def. Trial Ex. 61.)

There is some indication that ACSO’s checkpoint policy was

not uniformly followed insofar as obtaining supervisor approval.

Lieutenant Allen stated that individual officers under his

supervision would select the time and location of checkpoints.

(Doc. 153 at 4.) Another officer, Officer Anthony, stated that

his traffic unit — which consisted of supervisors Corporal Ray

and Sergeant Wilkerson — would select checkpoints over dinner.

(Doc. 147 at 209–10. But see Doc. 148 at 20–22 (Officer Anthony

noting that he would receive written checkpoint approval after

the checkpoint operation); Doc. 150 at 181 (Major Brown

observing that approval for a checkpoint can be verbal and with

written approval coming afterwards).)

However, the vast majority of checkpoints were conducted

within the guidelines of ACSO’s checkpoint policy. (Gov’t Trial

Ex. 113; Doc. 154 at 104–05.) Most officers testified as to

their performance of standard checkpoints.

For example,

Lieutenant Mark Hoover — a patrol supervisor — explained that

ACSO’s checkpoints are “generally . . . for your . . . driver’s

licenses or registration or insurance.” (Doc. 150 at 9; see

also Doc. 148 at 22–24 (Officer Anthony similarly described the

general purpose of standard checkpoints.).)

He further

testified, “The purpose of a checkpoint, [is] to check validity

of driver’s license, registration, insurance.” (Doc. 150 at 27–

47

28; see also id. at 10.) Officer Bobby Culler — a North Carolina highway patrolman — similarly recalled performing only a number of “traffic check, drivers check” checkpoints in conjunction with ACSO. (Doc. 152 at 171–72.) Deputy James Conklin echoed that the “purpose of setting up” standard checkpoints is “motor vehicle violations.” (Doc. 150 at 82; see also id. at 90 (“We check driver’s license and registrations. . . . We don’t set them up specifically for drugs. If we stop a vehicle and either smell or see something, that would indicate to us we move forward.”).) Similarly, Sergeant Crain testified that the checkpoints he conducted “ensur[ed] compliance with North Carolina motor vehicle law primarily.” (Doc. 151 at 112–13.) Similarly, Sheriff Johnson described informational checkpoints as attempts “to get information on the crime” or individuals committing crime. (Doc. 154 at 149–50.)
The Government characterizes ACSO’s use of and selection of location for some checkpoints as evidence of improper purpose. For example, the Government points to testimony of Deputy Conklin and Lieutenant Hoover that they considered checkpoints to be a form of “general law enforcement.” (Doc. 158 at 142– 44.) Such testimony was generally elicited by the Government through leading questions and was generally clarified on crossexamination as merely the deputies’ shorthand for a “standard”
48

checkpoint. (See, e.g., Doc. 148 at 22–24 (Officer Anthony clarifying that he participated in standard checkpoints — not checkpoints for drugs — but, if he saw drugs, would take further action); Doc. 150 at 33–34 (Officer Hoover clarifying that ACSO runs checkpoints for the purpose of observing “driving violations”); id. at 89–90 (Deputy Conklin stating that ACSO does not “set [checkpoints] up specifically for drugs” but rather for motor vehicle violations).) The Government also argues that evidence that ACSO located checkpoints in high crime areas indicates they were improperly used for generalized law enforcement. (See Doc. 151 at 113–14 (pointing to Sergeant Crain’s deposition testimony that “[y]ou fish where the fish are”); Doc. 154 at 106 (Sheriff Johnson’s testimony that he approves of placing checkpoints in high crime areas).) Apart from what is discussed immediately below, however, there was no evidence that ACSO conducted any standard checkpoint with a purpose to target Hispanics.
Of the over 400 checkpoints conducted, the Government presented evidence relating to four.23 The first involved Paula Crotts — a county employee at Alamance County Central Communications. (Doc. 149 at 116–17.) On a Sunday in 2010,
23 The complaint lists five mobile home parks that ACSO allegedly targeted with checkpoints. (Doc. 1 ¶ 45.) At trial, the Government offered evidence as to only three of those mobile home parks — Rocky Top, Seamsters, and Calloway Drive.
49

ACSO Deputy Sara Keller stopped Crotts and her husband (both of whom are Caucasian) at a checkpoint on Monroe Holt Road near Rocky Top mobile home park, which is predominantly Hispanic. (Id. at 116–19.) Crotts’ husband was driving the car and, upon approaching the deputies, retrieved his wallet and began to pull out his driver’s license. (Id. at 119.) Deputy Keller leaned in, observed the two of them (Deputy Keller knew Crotts because Crotts was a substitute teacher at the high school Deputy Keller attended (id. at 119–24)), said hello to Crotts, and said that she did not need to see Mr. Crotts’ license because “they were there to get them some,” gesturing toward the mobile home park. (Id. at 119.) Crotts testified (without objection) that she assumed that Deputy Keller meant “she was there to get as many Hispanics — or get an Hispanic person stopped,” but she conceded she did not know. (Id. at 120, 125.) Deputy Keller had no recollection of seeing Crotts at a checkpoint and denied making the statement or waving them through. (Id. at 114–15.) She did admit that she had conducted a checkpoint on Monroe Holt Road as well as another checkpoint on Kernodle Lane — the road entering the mobile home park. (Id. at 110–13.) There was also evidence that ACSO conducted a small number of checkpoints on weekends, although the policy manual discourages them from taking place near a religious institution during worship hours. (Doc. 150 at 31–32 (noting that the policy manual did not prohibit
50

checkpoints on the weekend); Doc. 153 at 10; Doc. 153 at 4; Gov’t Trial Ex. 113 at 5.) The court concludes that the checkpoint occurred as Crotts testified.
Second was the previously-mentioned 2007 meeting at ACSO between Corporal Nicholson, Sergeant Crain, Sheriff Johnson, and the owner of the Rocky Top Mobile Home Park. This was the meeting when the Sheriff told Corporal Nicholson to “get me those Mexicans,” referring to the Bandidos gang committing crimes in the park. (Doc. 147 at 77; Doc. 154 at 69–70.) As a result of the meeting, Corporal Nicholson took it upon himself to conduct a standard license checkpoint, but he performed no arrests, wrote no citations, and filled out no traffic stop forms. (Doc. 147 at 89, 92.)
Third, three former ACSO officers offered testimony concerning a checkpoint on Highway 49 one-half mile from the Seamsters mobile home park, which is predominantly Hispanic. (Doc. 147 at 29–30, 47, 155.) Sheriff Johnson asked Officer Lloyd to set it up, and it was the only checkpoint the Sheriff asked of him. (Id. at 155.) Two other ACSO officers — Kenneth Evans and Steven Perry — were among those working the checkpoint, but as van drivers to transport arrestees to the ACDC and not as interdiction officers. (Id. at 28–29; 46.) According to Officer Lloyd, the Sheriff told him that “if we had Hispanics coming through the checkpoints that was [sic] NOL [No
51

Operators License] or driving revoked, we was [sic] to arrest them.” (Id. at 155.) Officer Lloyd, however, added, “We discussed it, and we decided we was [sic] going to also arrest any whites or blacks at these same checkpoints also.” (Id.) Evans and Perry similarly testified that Sheriff Johnson told them to arrest Mexicans or Hispanics. (Id. at 30 (Perry: “If any Mexicans violate the law, lock their ass up.”), 52 (Evans: “[I]f there is [sic] any Hispanics that come through here or whatever, . . . you don’t write them a citation, you take [them] to jail.”).) It is not clear why the Sheriff would have directed such a statement to them because neither was tasked with any responsibility to actually arrest anyone at the checkpoint.24 In any event, at the conclusion of the checkpoint ACSO had arrested equal numbers of whites, blacks, and Hispanics. (Id. at 155–56.) Officer Lloyd was also adamant that he never discriminated against Hispanics nor knew any ACSO officer who had. (Id. at 168.)
Several ACSO officers deny this account of the checkpoint. Principally, Sheriff Johnson denied he was present and testified that he never gave such an order to arrest Hispanics. (Doc. 154 at 56.) Chief Deputy Britt, who lives in the general vicinity of the checkpoint, testified that he recalled only a checkpoint
24 As previously noted, two of the three officers have reason for some bias because the Sheriff had fired them or their family members.
52

that took place after a series of break-ins in the area and that

it was actually informational only. (Doc. 154 at 24–25.)

According to him, its purpose was simply to inform the community

and ask if they knew anything about the break-ins. (Id.) And

because it was only informational, he stated, ACSO officers

performed no arrests or citations.

Indeed, while ACSO

maintained citation and arrest forms, there was no record that

either occurred at the checkpoint. (Id. at 25.) He also denied

that Sheriff Johnson was present at that checkpoint. (Id. at

26.) Finally, Officer Culler, who was a North Carolina Highway

Patrol officer from 1983 to 2011, credibly acknowledged

conducting checkpoints with ACSO as a “multi-agency” effort,

including at Highway 49, and never knew Sheriff Johnson to use

racial slurs or discriminate against anyone. (Doc. 152 at 171–

74.)

Fourth, Officer Lloyd testified during the Government’s

direct examination that, while preparing to assist at a

checkpoint at the predominantly Hispanic Rocky Top mobile home

park, then-Chief Deputy McPherson initially told him that

Sheriff Johnson had said that any Hispanics driving without a

driver’s license or driving with a revoked license should be

arrested. (Doc. 147 at 156–58.) However, after Officer Lloyd

and a few others sought clarification, Chief Deputy McPherson

later arrived at the checkpoint, having consulted with Sheriff

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Johnson, and reported back that the Sheriff meant the instruction for everyone and “didn’t mean just Hispanics.” (Id. at 158–59.)
5. ACSO’s Stops and Searches a. Particular Stops
The Government’s complaint contains broad allegations that ACSO discriminatorily stops Hispanics without reasonable suspicion, alleging several “[e]xamples of such incidents.” (Doc. 1 ¶ 37.) By the time of trial, however, the vast majority of these instances never materialized, with the Government citing evidence as to only one of those alleged instances — a stop that resulted in no arrest or citation. Cf. Floyd v. New York City, 959 F. Supp. 2d 540, 624–58 (S.D.N.Y. 2013) (finding multiple detailed instances of suspicionless stops or frisks of African-Americans in Fourteenth Amendment selective law enforcement case). Evidence of two other stops was offered at trial, but the Government makes no reference to either of these in its post-trial proposed findings of fact and conclusions of law. All three will be addressed below.
First, at trial, the Government questioned ACSO Deputy James Conklin, a law enforcement veteran of forty-one years, about his stop of a van at night on Interstate 40 “a few years ago.” (Doc. 150 at 86.) The deputy stopped the van for impeding traffic because it was driving 20 miles per hour below
54

the posted 65 mile per hour speed limit.25 (Id. at 86, 91–93.) When making the stop, Deputy Conklin approached the vehicle from behind and did not know the ethnicity of the van’s driver or passengers. (Id. at 92–93.) The van was driven by a Hispanic man and had several Hispanic passengers. (Id.) When asked for his license and registration, the driver handed Deputy Conklin a sheet of paper with a list of twelve to fifteen names, phone numbers, and dollar amounts. (Id. at 93–94.) Deputy Conklin also observed “multiple fast-food bags with trash in them” and bottles filled with what appeared to be urine. (Id. at 94.) This evidence led him to contact ICE because he suspected possible human trafficking. (Id.) The Government cites the fact that Deputy Conklin detained the van and its occupants for approximately fifty minutes or an hour, but on cross-examination it was apparent that he did so at the direction of ICE so its agents could arrive at the scene. (Id. at 95.) The deputy could not recall whether he issued a citation or a warning. (Id. at 86–87.) He was later advised that the U.S. Attorney’s Office declined to prosecute the case because it had “concerns” about the validity of the stop. (Id. at 87.) There was no testimony as to what those “concerns” were or what became of the
25 Impeding traffic is a violation of North Carolina traffic law. See N.C. Gen. Stat. § 20-141(h).
55

matter, yet Deputy Conklin believed some occupants were released and some were transported to ACSO’s office.26
Second, the Government offered testimony from a former Assistant U.S. Attorney, Arnold Husser, who primarily handled immigration-related cases and worked on hundreds of them over his career. (Doc. 148 at 190–91, 198.) Husser handled approximately two dozen immigration cases from Alamance County. (Id. at 198.) Of those, he declined to prosecute two cases and described only one, which he characterized as a “bad stop” because the ACSO officer stopped a car after it switched lanes several times. (Id. at 191–93.) Husser remembered that the driver was an alien but could not recall whether he was Hispanic. (Id. at 193, 197–98.) Husser’s concern at the time was that the stop was improper “no matter who the driver was.” (Id. at 194.) He noted, however, that during his involvement with ACSO as an Assistant U.S. Attorney, he never observed evidence that its deputies racially or ethnically profiled Hispanics. (Id. at 196.)
Finally, the Government elicited testimony from Jose Luis Arzola, Jr., a Hispanic man living in Burlington, North Carolina, which lies within Alamance County. Arzola has been stopped by an ACSO deputy approximately three times in the ten
26 It is thus unknown whether some occupants were ultimately detained by ICE and deported.
56

years he has lived in the County. (Doc. 147 at 184.) He has received traffic citations, but he “usually” did not get an explanation for the stop reason until he examined the ticket. (Id. at 191.) He did not maintain that any citation was unwarranted. In 2009 or 2010, an unspecified ACSO deputy stopped Arzola while driving on a highway near Green Level. (Id. at 185.) Arzola was not aware that he had violated any traffic law but could not say whether he was speeding. (Id.) Once Arzola pulled his car to the side of the road, the deputy asked him for his driver’s license. (Id. at 185–86.) After that was produced, the deputy asked for his “papers.” (Id.) The deputy never clarified the question, but Arzola, who is legally present in the United States on a Green Card, assumed the question referred to immigration documents.27 (Id. at 191– 92.) Arzola responded that he did not have his immigration documents with him, but that they were at his house. (Id. at 187, 191.) Apparently satisfied, the officer let Arzola leave. (Id. at 191.) Arzola “didn’t really see it as a big deal” and never filed a complaint with ACSO about the stop. (Id. at 192– 93.) In fact, he testified that ACSO and its officers responded twice to his calls of two break-ins at his home and described 27 Under the Fourth Amendment, the Supreme Court appears to allow the inquiry into a stopped individual’s immigration status so long as the inquiry does not prolong the stop (and the stop is itself valid). See Arizona v. United States, 132 S. Ct. 2492, 2509 (2012); Muehler v. Mena, 544 U.S. 93, 101 (2005).
57

his treatment as “excellent.” (Id. at 194.) He explained that

he called ACSO on both occasions because he believed that having

them respond would reassure his wife and make her feel safe.

(Id. at 194–95.)

b. Statistical Evidence

i. Dr. John Lamberth

The Government’s trial evidence of discriminatory targeting

of Hispanic drivers was presented through an observational

benchmark study involving statistical analysis performed by Dr.

John Lamberth. Dr. Lamberth is the head of the Lamberth

Consulting firm in West Chester, Pennsylvania. (Doc. 148 at

28.)

Lamberth Consulting focuses on assisting police

departments to identify potentially discriminatory targeting.

(Id. at 31.) The firm’s clients span several states and include

twenty to twenty-five law enforcement agencies. (Id. at 32.)

As part of the firm’s work, Dr. Lamberth also serves as an

expert witness in litigation. (Id. at 31.)

Prior to starting Lamberth Consulting in 2002, Dr. Lamberth

was a tenured professor and chair of the department of

psychology at Temple University. (Id. at 29–30.) He holds a

master’s degree and Ph.D. in social psychology. (Id. at 28.)

During his time as a professor, Dr. Lamberth taught a number of

psychology courses and published empirical analyses relating to

the criminal justice system, specifically concentrating on

58

traffic enforcement and racial or ethnic disparities. (Id. at 30–31.) The Government thus offered Dr. Lamberth as an expert in studying patterns of traffic enforcement. (Id. at 37.) Sheriff Johnson does not dispute Dr. Lamberth’s expert qualifications but challenges admission of his opinions under Federal Rule of Evidence 702. (See Doc. 127.) Those challenges will be addressed in the court’s conclusions of law.
The Government retained Dr. Lamberth to perform an analysis of ACSO’s citation practices to measure for potential patterns of traffic law enforcement.28 (Id. at 38.) Dr. Lamberth began by creating a “benchmark survey.” (Id.) To do so, he attempted to create a profile of drivers — a “benchmark” — by observing all drivers on selected roads in Alamance County, their ethnicity, and whether they were violating a North Carolina traffic law. (Id. at 38, 40.) Here, the benchmark sought to determine how many Hispanic drivers violate a traffic law on specific roads in Alamance County. (Id. at 40.) Dr. Lamberth
28 Dr. Lamberth did not analyze ACSO’s traffic-stop database. Although ACSO’s traffic stop forms contain information on the ethnicity of each driver stopped as observed by the officer, the stop forms lack information on the location of the stops. (Doc. 148 at 98–99.) Dr. Lamberth testified that, without that location information, he could not perform an accurate comparison between the traffic stops performed by ACSO officers and his observational benchmarks. (Id.) Dr. Lamberth’s testimony, however, did not explain why a citation form, which had the stop location, could not be linked to its corresponding stop form, which contained the ethnicity of the driver. (See id. at 173.)
59

then compared that benchmark to the actual citations issued by ACSO on those same roads. (Id. at 38–39; see also Gov’t Trial Ex. 71 (example citation form).)
Dr. Lamberth selected three Alamance County roads for his study: Highways 49, 70, and 87. (Id. at 45.) Highways 49 and 87 are two-lane roads, and Highway 70 is a mix of two-lane and four-lane roadways. (Id.) The speed on those highways varies from 25 to 50 miles per hour. (Id.) The highways also cut through both urban and rural areas. (Id. at 45–46.) In 2012, Dr. Lamberth set up a total of 22 sites at some unspecified distance off of those three highways to observe traffic.29 (Id. at 54–55.) Each observation site was at least a quarter of a mile from an intersection, to allow for the identification of vehicles exceeding the speed limit. (Id. at 66.) He also located sites on both sides of the highways. (Id. at 67.)
Dr. Lamberth employed two persons — Richard Rivera and Sabino Valdez — to conduct the traffic survey. The two sat in a vehicle facing oncoming traffic for approximately three hours at a time. (Id. at 64, 67.) The three-hour sessions occurred fifteen times on each of the three highways and occurred between 7:00 a.m. and 1:00 a.m. during the spring and fall of 2012. (Id. at 67–68, 84, 87.) In total, the surveyors spent 135 hours
29 The demonstrative offered by the Government (“D2”) maps out a total of twenty-three observation sites.
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making observations of some fifteen thousand drivers. (Id. at 67, 175.)
Rivera is a former New Jersey state police officer. (Id. at 70, 188.) No information on Valdez’s background was provided, and neither surveyor testified at trial. Both are Hispanic and have worked with Dr. Lamberth in prior studies. (Id. at 70–71, 77.) Rivera made the “vast majority” of observations, with Valdez assisting him at some unknown frequency if there was “enough traffic to merit” two observers. (Id. at 61, 175–76.) Otherwise, Valdez’s role was limited to recording Rivera’s observations. (Id. at 61, 70–71, 175–76.) The surveyors identified drivers who “appeared to be” or “looked” Hispanic. (Id. at 181.) Dr. Lamberth provided no description, criteria, or standard used by the surveyors to identify someone they believed to be “Hispanic” other than “if they thought someone looked Hispanic.”30 (Id.)
In an effort to verify the accuracy of Rivera and Valdez’s ethnic observations, Dr. Lamberth claims to have calibrated the surveyors’ “inter-rater reliability.” (Id. at 56.) Inter-rater reliability testing was presented as a method used in published, peer-reviewed journals to assess the reliability of visual
30 Dr. Lamberth was unable to articulate a standard, definition, or description the surveyors may have used, even upon the court’s separate questioning of him. (Doc. 148 at 181.)
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observation. (Id. at 58–59.) The purpose of an inter-rater reliability test is to determine both how the surveyors identify individuals’ ethnicities and the reliability of those identifications. (Id. at 56–57.) The test compares the observations of multiple observers to ascertain how often their perceptions agree. (Id. at 56, 61.) Dr. Lamberth prefers that the observers agree on driver ethnicity in at least 80% of the observations. (Id. at 56.) Here, Dr. Lamberth testified, Rivera’s and Valdez’s “inter-rater reliability” testing produced agreement as to the ethnicity of drivers in 100% of their observations. (Id. at 56–57, 60.) However, the surveyors only made ten test observations, and none included a Hispanic driver. (Id. at 128, 131.)
In addition to observing ethnicity, the surveyors also endeavored to identify those drivers who violated a North Carolina traffic law in any regard. The surveyors attempted to observe every traffic law violation (id. at 72, 179–80), so no distinction appeared to have been made as to the degree of the violation (e.g., more serious speeders were not distinguished from those slightly exceeding the speed limit). Nor was any testing done to confirm the accuracy of the surveyors’ abilities to identify traffic law violations, but both surveyors were apparently “familiar with” North Carolina traffic laws, according to Dr. Lamberth. (Id. at 72.) Rivera also used a
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radar device to identify speeding violations. (Id.) Using Rivera and Valdez’s observations of ethnicity and
traffic law violations, Dr. Lamberth purported to create a benchmark for each of the three highways. (Id. at 78.) After initially identifying Hispanic violators, Dr. Lamberth weighted the benchmark based on the incidence of citations at a given location. (Id. at 63–64, 79.) Put differently, Dr. Lamberth weighted the observed proportion of Hispanic violators at a given location by the number of ACSO citations at that location. (Id. at 79–80.) In doing so, he provided no testimony as to how he determined which citations occurred at which survey location. This weighting aimed to account for different rates of violations across the three surveyed highways. (Id. at 79–80.)
Following the observational study and weighting based on survey location, Dr. Lamberth calculated the benchmarks identifying the percentage of Hispanic violators on the surveyed highways. For Highway 49, he concluded, the weighted percentage of Hispanic violators was 4.17%, meaning that, of the total drivers observed on this road, 4.17% were both Hispanic and violated a traffic law. (Id. at 103–04.) On Highway 70, the weighted percentage was 4.34%. (Id. at 107.) Highway 87’s weighted percentage was 2.71%. (Id. at 106.)
Dr. Lamberth used these weighted percentages of Hispanic violators as benchmarks to compare against ACSO’s actual
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citation practices. To do this, he gathered all of the actual
citations issued as a result of traffic stops on Highways 49,
70, and 87.31 (Id. at 38–39, 47.) The citations included the
location where the citation was issued, permitting Dr. Lamberth
to identify those citations issued on the three highways. (Id.
at 89.) Dr. Lamberth identified citations issued on those
highways from 2008 through October 2013, which totaled
approximately 2,000. (Id. at 48–49, 90.) From that group he
then removed those citations issued between the hours of 1:00
a.m. and 7:00 a.m. because his surveyors did not conduct
observations during that time. (Id. at 69.)
ACSO’s citation database lacks information identifying the
ethnicity of the individual cited. (Id. at 90.) To attempt to
address this problem, Dr. Lamberth conducted a “surname
analysis.” (Id. at 90–91.) The basic assumption of surname
analysis for this case is that individuals with particular
surnames “tend heavily to be Hispanic.” (Id. at 90.) Operating
31 Dr. Lamberth’s analysis included non-traffic citations issued as a result of traffic stops. (Doc. 148 at 112.) The Government attempted to introduce additional analysis by Dr. Lamberth in which he removed those citations for non-traffic offenses. (Id. at 113–18.) Sheriff Johnson objected on the ground that the Government failed to amend Dr. Lamberth’s expert report to include this additional analysis as required by Federal Rule of Civil Procedure 37(c)(1). (Id. at 113, 116–17.) The Government responded that, under Rule 26(e)(1)(A), no amendment was required. (Id. at 115–17.) The court took the issue under advisement (id. at 118) but need not resolve it because the additional analysis would not change the court’s conclusion that the analysis is fundamentally unreliable for other reasons, as provided below.
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on this premise, Dr. Lamberth took the names provided on ACSO citation forms and estimated the probability that those individuals would self-identify as Hispanics. (Id. at 91.) To do this, he used probabilities developed by the U.S. Census Bureau that estimated whether a person with a given surname would self-identify as Hispanic. (Id. at 91–92.) Then, he took each group of names provided in ACSO’s citation database that had an associated U.S. Census Bureau probability and multiplied each group of names by its associated probability.32 (Id. at 92.)
Using this information, Dr. Lamberth calculated estimates of the percentage of citations issued to Hispanics for each highway. (Id. at 94–95.) According to Dr. Lamberth, the surname analysis estimated that 20.77% of ACSO’s citations on Highway 49 were issued to Hispanics. (Id. at 104.) For Highway 70, 24.45% of ACSO citations were given to Hispanics. (Id. at 107.) And, for Highway 87, 15.39% of ACSO citations were issued to Hispanics. (Id. at 106.) Dr. Lamberth calculated an error rate for these estimates between 3% and 5%, noting it was
32 Dr. Lamberth testified that he also performed a surname analysis in which he estimated the number of Hispanics using U.S. Census Bureau probabilities but using a probability cutoff of 75%. (Doc. 148 at 91, 94.) In other words, if a name on an ACSO citation had an associated probability less than 75%, that individual would not be counted as Hispanic in Dr. Lamberth’s study. Dr. Lamberth testified that this alternative calculation did not significantly change his results. (Id. at 94.)
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“bidirectional,” meaning that the estimates may slightly undercount or overcount the number of Hispanics receiving citations. (Id. at 97–98.)
With the benchmarks from the observational study and the estimates from the surname analysis, Dr. Lamberth calculated “odds ratios” for each highway. (Id. at 33.) Dr. Lamberth’s odds ratios sought to measure the likelihood that a Hispanic would receive a citation compared to a non-Hispanic. (Id. at 33, 39–40.) The odds ratios reflect Dr. Lamberth’s comparison of his benchmarks to his surname analysis estimates of the citations received by Hispanics on the three Alamance County highways. For example, an odds ratio of 2.0 means that the subgroup analyzed is twice as likely to be cited as compared to an individual outside the sub-group. (Id. at 34.)
Here, the odds ratios were 6.0 for Highway 49, 7.13 for Highway 70, and 6.5 for Highway 87. (Id. at 104, 106–07.) Dr. Lamberth testified that each of those odds ratios was statistically significant. (Id. at 104–08.) He also conducted this same analysis for the intersection of Graham-Hopedale Road and Apple Street Extension in Alamance County. (Id. at 50–51, 108.) The resulting odds ratio for that intersection, which he said was statistically significant, was 12.73. (Id. at 108–09.) From these numbers, Dr. Lamberth ultimately opined that ACSO
66

cited Hispanics at a much higher rate than the rate at which they violated traffic laws. (Id. at 39.)
ii. Dr. John MacDonald The Government also presented expert testimony by Dr. John MacDonald as to ACSO’s law enforcement practices after traffic stops. Dr. MacDonald is an associate professor of criminology and sociology at the University of Pennsylvania. (Doc. 149 at 4.) Criminology is “a social science that’s focused on studying the causes of crime, the response of crime, and some aspects of [lawmaking] . . . .” (Id. at 6.) Dr. MacDonald holds a bachelor’s degree in political science and both a master’s degree and Ph.D. in criminology. (Id. at 5.) Prior to joining the faculty at the University of Pennsylvania, Dr. MacDonald was a professor at both the University of South Carolina and the University of Florida and spent time as a behavioral scientist at the Rand Corporation. (Id.) Since 2006, he has held various positions at the University of Pennsylvania. (Id. at 6.) His work at both the Rand Corporation and the University of Pennsylvania involved statistical analysis and the criminal justice system. (Id. at 5–6.) Much of his scholarly research and peer-reviewed publications also contain statistical analyses on the topics of crime control and responses to crime. (Id. at 7–8.)
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Beyond his academic work, Dr. MacDonald has served as a consultant for several law enforcement agencies to analyze their policing activities. (Id. at 8.) His consulting work included research on identifying patterns of racial and ethnic disparities in stops and arrests, police use of force, and the effectiveness of certain law enforcement policies. (Id. at 9.) This research also involved statistical analysis. (Id.) The Government offered Dr. MacDonald as an expert in criminology and statistical analysis. (Id. at 10.) Sheriff Johnson does not dispute Dr. MacDonald’s expert qualifications.
In this case, Dr. MacDonald conducted two studies seeking to identify racial and ethnic disparities in the outcomes of ACSO traffic stops. (Id. at 11–12.) First, Dr. MacDonald examined the following outcomes occurring after ACSO traffic stops: (1) citation; (2) arrest; (3) written warning; (4) verbal warning; and (5) no enforcement action (hereafter “post-stop outcomes”). (Id.) Second, he performed an analysis of ACSO’s searches following a traffic stop and the rate at which those searches yielded illegal contraband (hereinafter “hit rates”). (Id. at 40.)
For both studies, Dr. MacDonald relied exclusively on ACSO’s traffic stop data from approximately June 2008 to October
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2013.33 (Id. at 11–15.) For that time period, ACSO’s traffic stop database contained information from 20,059 traffic stop forms based on the information provided by the deputies completing them. (Id. at 13–14.) Those stop forms include information on the following: the initial reason for the traffic stop; vehicle driver information (including the driver’s race and ethnicity but not name); the enforcement action taken as a result of the stop (specifically, whether an officer issued a citation, made an arrest, issued a verbal or written warning, or made no enforcement action); whether the officer performed a search during the stop; the type of search (i.e., whether the search was based on probable cause, consented to, based on a search warrant, incident to arrest, or a protective frisk); whether a passenger was searched; and whether the officer found “contraband” (e.g., illegal drugs or weapons). (Id. at 14–16; Gov’t Trial Ex. 59 (example of ACSO traffic stop form).)
Sheriff Johnson does not dispute the admissibility of Dr. MacDonald’s testimony on either study, but he challenges the inferences the Government seeks to draw from it. The court finds Dr. MacDonald’s testimony generally credible but, for the reasons noted herein, finds many of the conclusions the Government seeks to draw from it unsupported.
33 Dr. MacDonald did not rely on the citation database that Dr. Lamberth used in his observational study. (Doc. 149 at 18.)
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(a) Post-Stop Outcome Study In his first study examining post-stop outcomes, Dr.

MacDonald performed two comparisons. First, he calculated a

“raw” percentage for each of the five post-stop outcomes and

separated his results between Hispanics and non-Hispanics.

(Doc. 149 at 19–20.)

He then performed a “controlled

comparison” for each of the five post-stop outcomes, comparing

Hispanics and non-Hispanics, while controlling for the initial

reason for the traffic stop.34 (Id.) Dr. MacDonald used a

logistic regression model, which held differences in stop reason

constant between Hispanic and non-Hispanic stops. (Id at 23,

37–38.) He controlled for stop reason because he believed that

differences in stop reasons may explain differences in the post-

stop outcomes faced by Hispanics and non-Hispanics. (Id. at

23.)

Dr. MacDonald did not, however, control for the reason

officers issued citations or made arrests following a stop.

That is, his analysis did not attempt to determine whether any

observed differences in the arrest and citation records for

Hispanics and others could be explained by the reason a person

was arrested or cited. (Doc. 155 at 41 (stating that, under his

34 ACSO’s stop form provides ten reasons for traffic stops: checkpoint, driving while impaired, investigation, other motor vehicle violation, safe movement violation, seat belt violation, speed limit violation, stop light/sign violation, vehicle equipment violation, and vehicle regulatory violation. (Gov’t Trial Ex. 59.)

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study, “you wouldn’t know the type of arrest, charge, or the type of citation”).) Dr. MacDonald acknowledged that, by not controlling for the reason for citation and arrest, his poststop outcome study lacks “a layer of context[].” (Id. at 42.)
Dr. MacDonald’s comparisons demonstrated statistically significant differences between Hispanics and non-Hispanics for each post-stop outcome. (Doc. 149 at 21–40.) First, comparing the post-stop outcome of citations, Dr. MacDonald found that 55.8% of stopped Hispanics received a citation versus 32% of stopped non-Hispanics. (Id. at 21–22.) After controlling for stop reason, Dr. MacDonald’s study showed that a stopped Hispanic is 146% more likely to receive a citation relative to a stopped non-Hispanic. (Id. at 25–26.) Second, as to arrests, the post-stop outcome study revealed that 11.9% of stopped Hispanics were arrested as compared to 6.2% of stopped nonHispanics. (Id. at 29.) Dr. MacDonald’s controlled comparison of arrests indicated that a stopped Hispanic is 52% more likely to be arrested than a stopped non-Hispanic. (Id. at 30.) Third, for the post-stop outcome of written warnings, Dr. MacDonald found that 5% of stopped Hispanics received written warnings relative to 9.5% of stopped non-Hispanics. (Id. at 34– 35.) Controlling for stop reason, Dr. MacDonald’s comparison indicated that stopped Hispanics were 44% less likely than stopped non-Hispanics to receive a written warning. (Id. at 35–
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36.) Fourth, for verbal warnings, the post-stop outcome study demonstrated that 22.3% of stopped Hispanics received a verbal warning versus 43.5% of stopped non-Hispanics. (Id. at 32–33.) In his controlled comparison of verbal warnings, Dr. MacDonald’s study showed that stopped Hispanics were 55% less likely to receive a verbal warning than stopped non-Hispanics. (Id. at 33.) Fifth, as to the post-stop outcome of no action taken, the post-stop outcome study revealed that 4.8% of stopped Hispanics received no action as compared to 8.6% of stopped non-Hispanics. (Id. at 36–37.) The controlled comparison indicated that stopped Hispanics were 63% less likely than stopped nonHispanics to receive no law enforcement action. (Id. at 37.)
(b) “Hit-Rate” Study Dr. MacDonald’s second study was of “hit rates,” which analyzed the rate at which searches performed subsequent to a traffic stop yielded contraband. (Id. at 40.) This analysis had two major components. First, Dr. MacDonald determined the rate at which stopped Hispanics and stopped non-Hispanics were searched. He concluded that 16% of stopped Hispanics were searched as compared to 12.9% of stopped non-Hispanics. (Id. at 41.) These figures are statistically significant. (Id.) Second, Dr. MacDonald examined the “hit-rates” for searches performed during those traffic stops. First he limited his inquiry to the discovery of drugs, because drugs were “the most
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common contraband found.” (Id. at 43–44.)35 Controlling for stop reason but not search reason, Dr. MacDonald found that approximately 6% of searches of stopped Hispanics uncovered drugs as compared to 30% of searches of stopped non-Hispanics. (Id. at 44–45.) In other words, searches of stopped Hispanics were 85% (or he said about five times) less likely to uncover drugs relative to stopped non-Hispanics. (Id. at 45.)
Because these figures included searches conducted incident to arrest (which are generally non-discretionary searches conducted as a matter of course), Dr. MacDonald testified that he controlled for that as well as for whether a passenger was searched. (Id. at 46–47.) He found that searches of stopped Hispanics were 80% less likely to uncover drugs relative to stopped non-Hispanics. (Id.) He reported that these figures are statistically significant. (Id. at 46–48.)
In summing up his conclusions, Dr. MacDonald opined that his “hit rate” analyses “suggest that there is a different standard, a lower threshold of suspicion or probable cause [being applied] in searching Latinos compared to non-Latinos.” (Id. at 48.)
Finally, Dr. MacDonald measured search hit rates
35 Dr. MacDonald testified that he examined other contraband and found a “consistent pattern of hit rates being significantly lower for Latinos compared to non-Latinos.” (Doc. 149 at 44.)
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specifically at ACSO checkpoints. In this study, Dr. MacDonald identified the rates at which ACSO checkpoint searches yielded drugs, alcohol, or any contraband. (Id. at 49.) He did not, however, control for whether the checkpoint search was incident to arrest. The drug hit rate for checkpoint searches of stopped Hispanics was 9.89%; the drug hit rate for stopped non-Hispanics was 48.22%. (Id.) Dr. MacDonald also observed “a significant difference between alcohol found for those who were searched who were Latino versus non-Latino who were searched.”36 (Id.) Dr. MacDonald’s study indicated that the overall contraband hit rate for checkpoint searches of stopped Hispanics was 10.99%, while the overall contraband hit rate for stopped non-Hispanics was 56.8%. (Id. at 49–50.) Each of these figures is statistically significant. (Id.) In summing up his opinion as to searches ACSO conducted at vehicle checkpoints, Dr. MacDonald testified that his results “suggested at checkpoints the searches being conducted on Latinos have a lower threshold for reasonable suspicion or probable cause.” (Id. at 50.)
As to all results, Dr. MacDonald concluded that they showed “a consistent pattern” across all post-stop outcomes and “on an
36 Dr. MacDonald did not say in which direction that difference lay or its numerical magnitude. A demonstrative exhibit contained some information, but it was only identified and not moved or admitted into evidence.
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order of magnitude that’s pretty large” compared to what he has seen in other research as well as in his own work. (Id. at 51.)
iii. Officer Mark Dockery and ACSO Data on Searches Not Incident to Arrest
Sheriff Johnson argues that because everyone arrested is automatically searched, the best measure of whether ACSO officers discriminate in searches lies in the evidence related to searches where there is officer discretion — i.e., persons whose searches are not incident to arrest. In this regard and in response to Dr. MacDonald’s testimony about discretionary searches, Sheriff Johnson introduced the testimony of ACSO Officer Mark Dockery.37 (Doc. 153 at 31.)
Officer Dockery is responsible for ACSO’s information technology and is the “system administrator” for ACSO’s record management system. (Id. at 32.) His official duties include retrieving data from ACSO’s computer database. (Id. at 35–36.) He holds an associate’s degree from Rockingham Community College, has taken a course in crime analysis, and has received training from the manufacturer of ACSO’s records system. (Id. at 32–33.) That training included work on Crystal Report
37 Before trial, the Government moved to exclude Officer Dockery on the grounds he was not properly disclosed as an expert witness. (Doc. 116.) The court reserved ruling on the motion, and at the close of evidence the Government conceded that its motion had become moot because Officer Dockery did not provide expert opinion testimony. (Doc. 155 at 44–45.)
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computer software, which functions to pull data from databases. (Id.)
Using ACSO’s traffic stop database, Officer Dockery retrieved data for all searches not incident to arrest38 from December 20, 2008, to October 4, 2013. (Id. at 51–52.) He placed all of ACSO’s traffic stop data into a spreadsheet, examined all traffic stops involving searches, and removed those marked as incident to arrest. (Id. at 51–53.) This left only traffic stop searches not incident to arrest, which Officer Dockery organized by the stop reasons provided on ACSO’s stop form. (Id. at 53; see also supra note 34.) He then compared the results for Hispanics and non-Hispanics (based on ethnic information in the database) by search reason, conducting a simple mathematic calculation to determine the percentage the results represent based on the overall number of stops. (Doc. 153 at 54, 73.)39 Officer Dockery’s calculations, which were not disputed as to their accuracy, were as follows:
38 Because most departments have a policy that requires a search of all arrestees, ACSO officer discretion should not come into play for a search incident to arrest; such searches are specifically recorded as a “type of search” option on ACSO’s traffic stop form. (Doc. 149 at 63; Gov’t Trial Ex. 59.) 39 Although Officer Dockery often referred to these figures as “rates,” they are more accurately considered as percentages. See Federal Judicial Center, Reference Manual on Scientific Evidence 294 (3d ed. 2011).
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STOP REASON
Checkpoint Driving While Impaired Investigatory Regulatory41
Other Safe
Movement Speeding Seatbelt Violation Stop Sign Violation
Vehicle Equipment
Vehicle Registration Total

HISPANIC NONINCIDENT TO ARREST SEARCHES 35 6
61 149
20 38
30 5
12
21
23
251

PERCENTAGE OF HISPANICS SEARCHED 5.18% 20.00%

11.42% 10.29%

9.62% 13.24%

10.53% 14.71%

10.17%

7.42%

9.87%

PERCENTAGE OF NON-HISPANICS SEARCHED40 22.27% 19.07%

16.46% 7.97%

11.28% 10.33%

5.53% 14.04%

7.13%

8.08%

7.68%

(Id. at 53–58.)

These percentages demonstrate that in many cases ACSO

searched Hispanics at levels comparable to or less than that of

non-Hispanics (e.g., at checkpoints, driving while impaired,

investigatory, vehicle equipment, seatbelt violations, and

“other”). The largest gap was at checkpoint searches, where

Hispanics were searched less than non-Hispanics by a factor of

40 Officer Dockery presented absolute numbers only for searches of Hispanics not incident to arrest and not for the non-Hispanics, and the Government did not seek the latter on cross-examination.
41 “Regulatory” is not itself provided as a stop reason on ACSO’s traffic stop form but is Officer Dockery’s designation for a group of seven stop reasons: safe movement, speeding, seatbelt, stop sign, vehicle equipment, vehicle registration, and “other.” (Doc. 153 at 55; Gov’t Trial Ex. 59.)
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more than 4 to 1. The principal areas where ACSO searched more Hispanics were stops involving moving violations such as speeding and safe movement, as well as stop sign and vehicle registration violations.
iv. Dr. David Banks Sheriff Johnson offered David Banks, Ph.D., as an expert in statistics and who conducted a number of statistical analyses relating to ACSO’s law enforcement practices. (Doc. 153 at 90.) The Government challenges Dr. Banks’ qualifications and the substance of his testimony. (Doc. 115 (Motion to Exclude Expert Report and Testimony of Dr. Banks); Doc. 153 at 90–91; Doc. 158 at 110 n.29.) As with the challenge to Dr. Lamberth, those objections will be addressed in the conclusions of law to follow. Dr. Banks is a Professor of the Practice of Statistics at Duke University in the Department of Statistical Science. (Doc. 153 at 76.) He received his bachelor’s degree in mathematics and anthropology from the University of Virginia, master’s degrees in applied mathematics and statistics from Virginia Tech, and a Ph.D. in statistics also from Virginia Tech. (Id.) Dr. Banks accepted a post-doctoral research fellowship with the National Science Foundation. (Id.) He then taught a number of statistical courses at the University of Cambridge and Carnegie Mellon University. (Id. at 76–77.) For a number of years he
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was employed by the federal government, working as a mathematical statistician at the National Institute of Standards and Technology, serving as the director of the Office of Advanced Studies and the acting chief statistician at the Department of Transportation, and performing risk analyses for the U.S. Food and Drug Administration. (Id. at 78–80.) While at the Department of Transportation, Dr. Banks reviewed a written report on racial profiling on the New Jersey Turnpike at the request of the Bureau of Justice Statistics. (Id. at 81.) He also worked with the Fatality Analysis Reporting System, which is a dataset collected by law enforcement agencies. (Id. at 81–82.) After his government work, Dr. Banks joined the faculty at Duke University, where he teaches courses on data mining and statistical inference.42 (Id. at 80–81.) He is not tenured at Duke but has received offers for tenured positions at Yale University and Penn State University. (Id. at 90.)
Dr. Banks has written several monographs relating to statistics, edited a number of books connected to statistical sciences, and authored approximately seventy papers on topics including data mining and computer programing. (Id. at 82–85, 89.) He currently serves on the Board of Directors of the
42 Dr. Banks described data mining as “a relatively modern area of computer-intensive statistics in which you typically work on very large datasets, and you try to make minimal assumptions on the data — on the model that you have for the data.” (Doc. 153 at 80.)
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American Statistical Association and as the editor of the Journal of the American Statistical Association. (Id. at 86.) Throughout his career, Dr. Banks has supervised people performing surname analyses, has himself published on surname analysis, and serves on the Board of Directors of the Human Rights Data Analysis Group, which uses surname analysis to link records to identify civilian casualties in conflicts. (Id. at 139–40.) He has received numerous honors and awards, including his position as a fellow of the American Statistical Association. (Id. at 86–87.)
Dr. Banks performed analyses of the following for this case: ACSO’s location of checkpoints in Alamance County; the proportion of Hispanics stopped at ACSO’s checkpoints; arrests of Hispanics at ACSO’s checkpoints; the number of traffic stops of Hispanics in Alamance County; and the number of citations of Hispanics in Alamance County. Each will be addressed in turn below.
(a) ACSO’s Checkpoint Siting Dr. Banks first performed a permutation test to analyze ACSO’s checkpoint siting. (Id. at 91–92.) A permutation test “considers all possible reassignments of labels to the data and determines whether or not the observed assignment of labels is statistically unlikely compared to random assignment of the labels.” (Id. at 92.) As applied to the current case, Dr.
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Bank’s permutation test examined whether ACSO sited checkpoints closer to Hispanic communities than would occur given random chance. (Id. at 92–95.)
To do this, Dr. Banks analyzed a list of 305 checkpoint sites — every location at which ACSO conducted a checkpoint in the past four years.43 (Id. at 92–94.) He then identified the six Hispanic communities that ACSO allegedly targeted through its checkpoint operations. (Id. at 94–96.) For each year from 2009 through 2012, Dr. Banks measured the distance from ACSO’s checkpoints to the six Hispanic communities (id. at 93–96) and ran a thousand simulations of ACSO’s checkpoint siting (id. at 94). Each simulation randomly selected sites from the list of 305 actual sites and, in doing so, assumed that the list of sites reflected all possible checkpoint sites.44 (Id. at 94, 97– 98.) Dr. Banks then compared the actual distance of ACSO’s checkpoints for each year to the distances reflected in his simulations. (Id. at 93–94.)
43 The total number of checkpoints conducted over the four-year period studied was 435, indicating that some sites were used more than once. (Doc. 153 at 93.) The Government never challenged the total volume of checkpoints as being inappropriate or as any evidence of discriminatory intent or conduct. 44 Dr. Banks acknowledged that the 305 locations “probably [don’t] consist of all possible sites.” (Doc. 153 at 97.) The permutation test also assumed that the selection of checkpoints was independent, meaning that selection of one checkpoint location did not affect the next location’s selection. (Id. at 97, 159–60.)
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The results of Dr. Banks’ permutation test showed that 40% of the simulations randomly placed checkpoints closer to Hispanic communities than ACSO’s actual checkpoint sites. (Id. at 94–95.) Given these results, and by applying commonlyaccepted statistical principles, Dr. Banks concluded that “there was absolutely no evidence that checkpoints were being sited closer to Hispanic communities than would have occurred if they were done just at chance.” (Id. at 99.) As the Government correctly points out, this conclusion assumes that ACSO’s sites reflected all reasonably available sites in the County. While the Government did not provide any credible evidence of other available sites, ACSO’s evidence demonstrated that site locations could not be selected arbitrarily, as they must meet several safety and logistical standards. Therefore, the court concludes that ACSO’s 305 sites were a reasonable reflection of available sites in the County.
(b) ASCSO’s Checkpoint Stops Dr. Banks next examined those who were stopped at ACSO’s checkpoints.45 He found that 36% of the stops at an ACSO checkpoint involved a Hispanic driver. (Id. at 99.) Dr. Banks offered four reasons why this may be the case: (1) Hispanics may be more likely to commit certain types of offenses or engage 45 As noted earlier, every motorist passes through a checkpoint. Only those who are stopped for further, reportable action become the basis of a stop form.
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in certain types of behavior that could lead to a detainment at a checkpoint; (2) Hispanics may be more likely to drive without licenses; (3) Hispanics may be of lower socioeconomic status and thus not register their vehicles as often or have car insurance; and (4) ACSO may place checkpoints on roads where Hispanics drive. (Id. at 172–93, 201.)
Dr. Banks offered three studies to support his first explanation. (Id. at 174–76.) The first is a Prince William County, Maryland study that found that “illegal Hispanics were stopped at . . . about three times the rate for DUI[s] compared to non-Hispanics.” (Id. at 110 (referencing Thomas M. Guterbock et al., Evaluation Study of Prince William County’s Illegal Immigration Enforcement Policy (2010)).) The second was a Durham County, North Carolina study — conducted by the National Highway Transportation Safety Administration — that showed that, in Durham, Hispanics comprised 9% of the population but were involved in 29% of traffic accidents. (Id. at 111 (referencing National Highway Transportation Safety Administration, Promising Practices for Addressing Alcohol-Impaired Driving Within Latino Populations: A NHTSA Demonstration Project (2010)).) The third was a Fatality Analysis Reporting System study that found that, among fatal accidents, 46 to 47% of Hispanics were intoxicated as compared to 35% of non-Hispanics. (Id. at 110 (referencing Paul L. Zador et al., Alcohol-Related Relative Risk of Driver
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Fatalities and Driver Involvement in Fatal Crashes in Relation to Driver Age and Gender: An Update Using 1996 Data, 61 J. Stud. on Alcohol & Drugs 387 (2000)).) Dr. Banks provided no evidence concerning his other justifications. (Id. at 188–92.)
To further explain his initial finding, Dr. Banks performed a study in which he compared the proportion of Hispanics stopped at checkpoints sites (36%) to the 2010 unadjusted Census estimate for Hispanics in Alamance County — 11.6%. (Id. at 101, 106.) Dividing the 36% figure by the 11.6% Census estimate, Dr. Banks derived Alamance County’s “disparity” ratio of over 3.0. (Id. at 100, 106.) He then repeated this calculation of ratios for ten other (mostly nearby) North Carolina counties and the city of Burlington (which lies within the County). (Id. at 101.) Comparing ratios across these other jurisdictions, Dr. Banks found that, of the North Carolina counties (and city) examined, Alamance County had only the fourth largest ratio of Hispanics stopped at checkpoints to the unadjusted Census percentage estimate of Hispanics.46 (Id. at 101–02.)
The Government criticizes Dr. Banks’ use of unadjusted Census data. Dr. Banks testified that, while he did not know of peer-reviewed studies using unadjusted Census data, he performed
46 Although not specifically testified to, Dr. Banks’ demonstrative at trial showed that Caswell, Chatham, and Forsyth Counties all had higher ratios.
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a case-control methodology with that data, which is a common methodology in academic literature. (Id. at 152–53, 156–57.) Second, he stated that he did not attempt to adjust the Census data because “there was no set of adjustments that I actually thought I could actually defend.” (Id. at 105.) Census adjustments are changes to the U.S. Census’ population estimates meant to improve the U.S. Census’ estimates’ accuracy. (Id. at 102.) Adjustments account for population characteristics like literacy rates and migrant worker patterns. (Id. at 103–04.) Third, Dr. Banks testified that making adjustments of that kind would have been “problematic” in his study without first controlling for whether or not a person operates their vehicle in a safe manner — the dominant factor in his study. (Id. at 143–45.) Because he could not adjust for driving behavior, performing other “minor” adjustments would have been “misinformative.” (Id. at 144–45.) Fourth, based on North Carolina’s Department of Motor Vehicle data, Dr. Banks found that 9.92% of the commuting miles in Alamance County were driven by Hispanics — a figure he claimed was “consistent” with the unadjusted U.S. Census estimate for the County.47 (Id. at 106– 07, 205.) Fifth, and most importantly, he explained that his 47 Dr. Banks provided no testimony as to how he reached this figure, but the Government did not challenge is methodology at trial or in its pre-trial motion to exclude his testimony and expert report. (See Doc. 115.)
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analysis “did not require that the actual census count be correct. It only required that the inaccuracy in the census count for Alamance County be about the same as the inaccuracy of the census count for [the other localities].” (Id. at 105–06, 198.) Dr. Banks noted that, through “pooling information” on Hispanic population figures, the U.S. Census makes the same or similar adjustments to all nearby counties’ population estimates. (Id. at 148.) Given that U.S. Census practice, Dr. Banks believed that the lack of adjustments caused nearly identical inaccuracies across counties. (Id. at 198–99.)
The court accepts Dr. Banks’ use of Census data for the limited purpose it is offered: to compare Alamance County’s ratio to that of other North Carolina jurisdictions. For the reasons cited by the Government, the court does so without accepting that any ratio is itself indicative of a true benchmark analysis. Rather, it is only Dr. Banks’ relative comparison of Census data, whose alleged internal errors are consistent across all the examined jurisdictions, that will be considered.
(c) ACSO’s Checkpoint Arrests Dr. Banks next examined ACSO arrests at checkpoints.48 To conduct this analysis, he randomly chose a 10% sample of ACSO’s
48 This is distinguished from Dr. MacDonald’s arrest analysis, which focused on all arrests and not just those at checkpoints.
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435 checkpoints conducted between 2009 and 2012, selecting 45 different checkpoints. (Id. at 93, 111–12.) He deemed the 10% sample “adequate” because non-Hispanics had “a considerably higher arrest rate than Hispanics,” which would require “a remarkable reversal” by the remaining arrest data. (Id. at 113– 14.) For those 45 checkpoints, Dr. Banks “hand-matched” traffic stop forms to arrest reports to determine the number of checkpoint arrests and found that 110 stops and 21 arrests occurred there. (Id. at 112, 165–66.) His results showed that Hispanics “were arrested conspicuously less often than nonHispanics.” (Id. at 112.) However, because his confidence intervals for the two groups (Hispanic and non-Hispanics) overlapped, he determined that from a purely statistical viewpoint there cannot be said to be any difference between them. (Id. at 112–13.)
(d) ACSO’s Traffic Stops Dr. Banks’ fourth study examined ACSO’s non-checkpoint traffic stops. In this analysis, Dr. Banks compared the proportion of non-checkpoint stops of Hispanics in several North Carolina counties to that county’s unadjusted Census estimate of Hispanics; he then divided that by the proportion of stops of non-Hispanics to the proportion of non-Hispanics in that county. (Id. at 114–15.) The product of this analysis was a ratio, from which Dr. Banks subtracted 1.0 to avoid double counting, to show
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“whether or not there was an excess or a deficiency of Hispanic traffic stops.” (Id.) Dr. Banks found that Alamance County’s ratio was negative, meaning that, at non-checkpoint stops, ACSO stopped fewer Hispanics compared to their proportion of the population.49 (Id.) Because this calculation for Alamance County employed the unadjusted Census data as a benchmark, the court does not consider it reliable for the reasons noted earlier. However, Dr. Banks made similar calculations for fourteen other North Carolina counties. (Id. at 115–16.) In comparing the results across the counties, Dr. Banks found that eight of the counties had higher ratios than Alamance County. (Id.) Specifically, he found that Alamance County compared “extraordinarily favorably” to Orange and Randolph Counties, which he termed “suspicious.” (Id.)
According to Dr. Banks, the results across all jurisdictions he examined showed that “unless many, many other counties in North Carolina are engaged in aggressive ethnic profiling, Alamance County does not seem to be misbehaving” by comparison. (Id. at 117.) Thus, he concluded, his study of traffic stop ratios “shows that there is no statistical evidence of ethnic profiling in [ACSO’s] traffic stops.” (Id. at 116.) This is an overstatement. While Dr. Banks’ analysis in this
49 Sheriff Johnson did not move the admission of Exhibit 79, and Dr. Banks did not testify to any numerical values.
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regard does not prove that no ethnic profiling is occurring in Alamance County, it does suggest that the County compares favorably to other counties about which there is no claim of discriminatory policing.
(e) ACSO’s Citations Finally, Dr. Banks analyzed what he termed a “Hispanic citation ratio.” In this study, apparently using unadjusted Census data, he calculated the proportion of Hispanics receiving citations relative to the proportion of non-Hispanics receiving citations for eleven North Carolina jurisdictions.50 (Id. at 123.) A ratio of 1.0 would reflect a completely ethnic-neutral citation rate. (Id.) The ratio for Alamance County was “above one,”51 which “suggests that Hispanics are receiving citations at a higher rate in the population” than non-Hispanics. (Id.) By comparison, Alamance County’s ratio was less than that of three other counties he compared.52 (Id. at 123–24.) Orange County had a ratio “a little bit less than three” and Randolph County’s
50 It appears that these were for citations at checkpoints only, but that is not entirely clear. (See Doc. 153 at 168–69.) 51 Sheriff Johnson never moved the admission of Def. Trial Ex. 80, but the court notes the ratio was between one and two. 52 Although not specifically testified to, Dr. Banks’ demonstrative at trial showed that he had calculated the ratios for nine other North Carolina counties and the city of Burlington, making Alamance County’s ratio larger than six counties.
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ratio was “extremely elevated.”53

(Id.)

Based on this

comparison, Dr. Banks opined that Alamance County’s ratio was

not “suspicious,” especially compared to those other three

counties with “clearly larger” ratios. (Id. at 123–25.) Again,

to the extent Dr. Banks used the unadjusted Census data to

compute a figure for Alamance County, it would be an improper

benchmark for reaching a conclusion about the County alone; but

to the extent he used the unadjusted Census data across multiple

jurisdictions, the court will consider that for the limited

purpose it is offered.

C. Evidence of Racial and Ethnic Bias Within ACSO

The evidence of ethnic/racial bias regarding Hispanics at

ACSO was conflicting. ACSO Sergeant Dan Cubino, a Spanish-

speaking Hispanic of Cuban descent who was an eleven-year

veteran and worked in the ICE unit from 2007 to 2012, testified

that he never knew Sheriff Johnson or any ACSO leadership to

engage in, or direct, any discriminatory action against

Hispanics. (Doc. 152 at 130–31, 155.) Had he ever observed it,

he said, he would not have tolerated it. ACSO Detective Carlos

Rossi — a Peruvian immigrant, U.S. Army veteran, and former ACSO

53 While Randolph County’s large ratio would give him “concern,” Dr. Banks stated that it would require further analysis to “try and figure out why there was an elevated rate.” (Doc. 153 at 125.) Dr. Banks did not argue that this comparison was proof of discrimination or lack of discrimination, apparently conceding that further investigation was necessary.
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patrol officer — echoed Sergeant Cubino’s assessment of ACSO.

(Doc. 153 at 212–13.) Detective Rossi worked the Hispanic

neighborhoods in Alamance County and never observed any

discrimination toward Hispanics. (Doc. 154 at 4.) He, too,

would have felt obligated, as an immigrant to the United States,

to report discrimination had he observed it. (Id. at 4–5.)

Both men were highly credible.

In addition, ACSO has engaged in several forms of outreach

to the County’s growing Hispanic community. For example, ACSO

hired Ester Benbassat, an Argentinian resident of the County, to

teach Spanish to ACSO officers. (Doc. 153 at 14, 16.) And as

previously mentioned, Arzola, a Hispanic resident of the County

whom the Government suggests was stopped because of his

ethnicity, characterized his treatment by ACSO officers as

“excellent” when responding to his calls after home break-ins.

(Doc. 147 at 194.) In fact, his wife was reassured by their

presence.

(Id. at 194–95.)

This is contrary to the

Government’s generalized allegation that Hispanics in the County

are distrustful of and fear law enforcement but further

supported by Detective Rossi’s testimony, admitted without

objection, that many Hispanic residents within Alamance County

understand the work that ACSO officers do and appreciate their

help. (Doc. 154 at 13.) To the extent some Hispanics in the

community hesitated to communicate with ACSO, he explained, it

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was his experience that much of their hesitation is attributable to cultural differences, with many coming from cultures of police distrust. (Id. at 8, 15.) Finally, according to ACSO Director of Personnel Captain Richard Longamore, Jr., who handles most citizen complaints, ACSO has never received a complaint of racial profiling or any type of complaint from an individual speaking Spanish. (Doc. 152 at 196–97.)
ACSO has repeatedly attempted to hire more Hispanic officers. (Doc. 152 at 197, 199–200; Doc. 154 at 5.) ACSO pays an individual who can speak Spanish at the time of hire a 4.5% salary increase. (Doc. 152 at 200.) In 2012, ACSO also approved sponsorship of a Hispanic officer in North Carolina’s Basic Law Enforcement Training School, only to learn that the individual had already received sponsorship from the Burlington Police Department. (Id. at 197–99.) In addition to recruiting efforts, ACSO recently began to offer its officers Spanish language classes to improve language skills and better understand Spanish-speaking culture — an idea originating from Sheriff Johnson and Chief Deputy Britt. (Id. at 195; Doc. 153 at 14–16, 217.) These classes have had a positive effect on relations with the Hispanic community. ACSO officers are now better able to communicate with the County’s Spanish-speaking community. (Doc. 150 at 160.) Captain Longamore is now conversant in Spanish after taking ACSO’s Spanish classes and
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will often field calls from Spanish-speaking residents. (Doc. 152 at 195–96.)
Sheriff Johnson himself has been personally involved in ACSO’s outreach programs. He started “The Sheriff’s Christmas Program,” which provides gifts to children, many of whom are Hispanic. (Doc. 151 at 54; Doc. 154 at 72.) He also personally delivers these presents to the homes of the children. (Doc. 154 at 72.) ACSO also provides security at soccer fields in the northern part of the County, and many of those at the fields are Hispanic. (Id. at 73.)
Other evidence at trial was troubling, however. Over the course of several years, some ACSO officers have used a number of racial and ethnic epithets, slurs, and jokes derisive of Hispanics, and there have been emails of similar pejorative character. Most of this conduct occurred within the ACDC — not the patrol division — of ACSO.
1. Racial and Ethnic Epithets and Jokes In its complaint, the Government alleged a number of discriminatory statements made by Sheriff Johnson and ACSO officers. (Doc. 1 ¶¶ 31–33.) For example, the Government claimed that Sheriff Johnson referred to Hispanics as “taco eaters,” that he “lamented the increased Latino presence in North Carolina’s workforce and public schools,” and that ACSO officers threatened residents with deportation on multiple
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occasions. (Id. ¶¶ 31, 33.) At trial, the Government presented no evidence to support those allegations or several other similar allegations made in its complaint.
There was evidence that some ACSO and federal ICE officers uttered racial and ethnic epithets and jokes. Several ACSO and ICE officers used the following terms to describe Hispanics: “wetback” (Doc. 147 at 159; Doc. 149 at 136, 217; Doc. 150 at 64; Doc. 153 at 6), “spic” (Doc. 147 at 160; Doc. 149 at 220; Doc. 150 at 64; Doc. 153 at 7), “beaner” (Doc. 147 at 160; Doc. 149 at 220; Doc. 150 at 102 (former officer Gerry Helms attributing use of word to Major Miles); Doc. 153 at 7).54 Major Miles also heard multiple uses of the term “wets” as a descriptor for Hispanics, but those individuals using the term were mostly federal ICE agents. (Doc. 149 at 218.) Former officer Gerry Helms also heard other ACSO officers use the terms “taco” and “Mexicant,” referring to Hispanics. (Doc. 150 at 103–04.) Finally, several officers heard the term “Mexican” to refer to Hispanics generally. (See, e.g., Doc. 147 at 160–61; Doc. 149 at 137.)
Beyond epithets, some ACSO officers also sometimes made
54 Two officers said they also heard the term “Tonk.” (Doc. 149 at 136 (noting that, while ACSO officers used the term, the epithet originated with an ICE agent), 218 (commenting that this term was used only by ICE agents).) The Government, however, elicited no testimony as to what it contends this meant. (See id. at 144 (Lieutenant Denham testifying that he does not know what the word “Tonk” means).)
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jokes and derogatory comments about Hispanics. For example, Officers Anthony and Helms heard other ACSO officers tell racially and ethnically insensitive jokes. (Doc. 148 at 9; Doc. 150 at 104–05.) Former ACSO officer David Cobb recalled “a couple of times” when officers told a detainee to “go back to your country.” (Doc. 150 at 64.)
The majority of the epithets, slurs, and jokes occurred within the ACDC. (See Doc. 149 at 224 (Major Miles); Doc. 150 at 67–68 (Cobb), 104 (Helms). But see Doc. 147 at 160 (Officer Lloyd heard patrol officers use epithets); Doc. 149 at 136 (Lieutenant Denham similarly heard patrol officers use derogatory terms).) Such evidence came largely from current and former officers in ACSO’s detention division — not those in the traffic enforcement division. (Doc. 149 at 126–27 (Lieutenant Denham spent time both as an officer in the 287(g) program within the detention center and as a detective under Sheriff Johnson), 211 (Major Miles was major over the detention division); Doc. 150 at 57–64 (Cobb spent time as a detention officer (80% of his time in the jail and 20% in the sally port) and court bailiff, as well as spending a few years as a patrol officer), 98–101 (Helms mainly worked as a detention officer or bailiff transporting prisoners).) Only two former officers — Cobb and Helms — testified that other officers actually directed an epithet toward Hispanic individuals or that Hispanic
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individuals may have heard insensitive terms and jokes. (Doc. 150 at 65–66, 113.) Most accounts were that ACSO officers uttered such epithets outside the presence of a Hispanic person. (See, e.g., Doc. 147 at 160; Doc. 149 at 224.)
2. Derogatory Emails In addition, the Government introduced evidence that certain ACSO officers sent or forwarded several racially and ethnically derogatory emails. Except for one instance that is specifically noted, none of the individuals involved was ever reprimanded for their involvement in any of the following emails. On January 25, 2010, Lieutenant Hoover — an officer in the patrol division at the time — forwarded an email titled “Rules for Kicking Ass” to several officers assigned to him. (Doc. 150 at 14; Gov’t Trial Ex. 20.) He thought the email was “amusing” and, as a military veteran, respectful to the military. (Doc. 150 at 15, 27.) The email listed a dozen “rules” that are hyperbolic pro-America or pro-military statements. For example, Rule 1 read, “The next time you see any adults talking (or wearing a hat) during the playing of the National Anthem — kick their ass”; Rule 2 read, “When you witness, firsthand, someone burning the American Flag in protest — kick their ass”; and Rule 11 stated, “Last, but not least, whether or not you become a member of the military, support our troops and their families.
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. . . Without them, our Country would get its ass kicked.” (Id. at 24–26.) The email also contained a message to “[m]ake sure you read #12.” (Gov’t Trial Ex. 20.) Rule #12 stated, “If you ever see anyone either standing for or singing the national anthem in Spanish — KICK THEIR ASS.” (Id.)
On July 12, 2010, Officer Mario Wiley — a supervising ACDC detention officer at the time — emailed a video game to several of his supervisee officers. (Doc. 149 at 234–35, 238; Gov’t Trial Ex. 51.) Titled “Border Patrol,” the video game was a shooting game with the objective of shooting people running across a river toward a shore bearing a sign reading, “Welcome to the United States.” (Doc. 149 at 235; Gov’t Trial Ex. 51.) According to Officer Wiley, the people running across the screen were Mexicans. (Doc. 149 at 236.) Although Officer Wiley claims that he and any others playing the game “didn’t pay a whole lot of attention of [those] running,” this is not credible (id. at 236–37) — the game labelled the runners as “Mexican Nationalists,” “drug smugglers,” or, in the case of women, offensively as “breeders.” (Id. at 239.) After the conclusion of a game, the final screen tells the player how many “wetbacks” were shot. (Id. at 240–41; Gov’t Trial Ex. 51.) The use of the game appears limited to certain persons within the ACDC, and there is no evidence that Sheriff Johnson or any senior ACSO officer was aware of the game until it was discovered during
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Officer Wiley’s deposition in this case. When use of the game was discovered, Sheriff Johnson met with Officer Wiley, who agreed to step down several ranks with a corresponding 9% pay reduction. (Doc. 149 at 245–46; Doc. 154 at 61–62.)
On June 1, 2012, Officer Randy Jones — ACSO’s part-time public information officer — forwarded an email titled “Be on the lookout for red 1951 Chevy.” (Doc. 150 at 54; Gov’t Trial Ex. 23.) Officer Jones sent the email to several supervisors — Chief Deputy Britt, Captain Robert Wilborn, and Captain Longamore. (Doc. 150 at 54.) The email read:
The United States Border Patrol is asking citizens to keep on the lookout for a red 1951 Chevy that they suspect is being used to smuggle illegal immigrants across the border from Mexico and into points along the U.S. border. If you see the vehicle pictured below and have reason to believe that it is the suspect vehicle, you are urged to contact your local Police Department or the U.S. Border Patrol. (Doc. 150 at 54; Gov’t Trial Ex. 23.) The punchline of the email is a picture of a red 1951 Chevy outer chassis with scores of legs protruding underneath where wheels would normally be, such that the individuals are using the chassis as a not-soclever decoy. (Gov’t Trial Ex. 23.) Officer Jones intended the email to be a joke and a “good-natured poke” at another law enforcement agency — border patrol. (Doc. 150 at 55–56.) On July 13, 2012, Officer Jones forwarded another email he had received from a non-ACSO employee titled “Slow Response”
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with no additional text of his own to several of his supervisors — Chief Deputy Britt, Captain Longamore, Captain Wilborn, and Major Brown. (Doc. 150 at 50–52; Gov’t Trial Ex. 22.) The email explains “Sam Elliott’s[55] Take on Slow Response” and tells of observing two men — a “Muslim extremist” carrying guns and bombs, and a “Mexican” with a “large backpack of drugs . . . strapped to his back” — drowning in the Rio Grande River due to their loads. (Gov’t Trial Ex. 22.) The text notes that “[b]eing a responsible Texan . . . I informed the El Paso County Sheriff’s Office and Homeland Security” but that, after several hours of no response, both have drowned and “I’m starting to think I wasted two stamps.” (Id.) Officer Jones said he sent the email because he thought it exemplified the irony in the groups that represented “two of the most dangerous criminal elements in our society”: “armed terrorists” and “drug traffickers.” (Doc. 150 at 56.)
On August 23, 2012, Lieutenant Hoover — now a supervisor in ACSO’s Special Services division — forwarded another email titled “Texans” to two subordinates in ACSO’s Animal Control division. (Doc. 150 at 16–17; Gov’t Trial Ex. 117.) The body of the email begins with the title “The Dallas Solution” and told a story of a homeowner’s association embroidering the
55 Sam Elliott is an American actor who plays in westerns.
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letters “INS” (ostensibly for “Inner Neighborhood Services” and
not “Immigration and Naturalization Service”) onto hats. (Doc.
150 at 18; Gov’t Trial Ex. 117.) The story continues that
members of the homeowners association, upset with construction
debris left nearby and wearing the “INS” hats, approached
“Mexican construction workers” in hopes of scaring them. (Doc.
150 at 18–21.) Lieutenant Hoover testified that the email was
“not about scaring off Mexican workers” but rather about
“stopping the trash and cleaning up the trash.” (Id. at 21–22.)
This explanation is not credible.
On January 22, 2013, Captain Longamore forwarded an email
from Victor Jeffries — whom ACSO had previously retained to
teach Spanish to its officers and court interpreter — to Sheriff
Johnson and Chief Deputy Britt. (Doc. 152 at 207, 209.) The
forwarded email contained no additional text and was originally
titled “Sex slave trafficking by the Family Values folks in the
Southeast.” (Id.) The substance of the original email
commented on a news article and stated in relevant part:
The clientele were most certainly 99.44% coethnic illegal aliens themselves. Do the “gag me with a spoon” fifth grade arithmetic — 25 “polvitos” per day times 22 days per month times 12 months per year times 11 female sex slaves equals quite a few undesirable illegal aliens. And this is just ONE small subset of an operation that just happened to be busted by a largely Anglophone police intelligence network. Eliminate the young male illegal aliens and a very substantial portion of their co-ethnic prostitutes and sex slaves will self deport.
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Unfortunately for the American taxpayer, the 11 female sex slaves in this case (and many others) will get to stay in the US under the “U” Visa program (undocumented victims and witnesses). What will our society be able to do with young Mesoamerican females who at best are semi-literate in any language and only have experience milking cows and working as captive sex slaves. (Id. at 207–08.) According to Captain Longamore, Jefferies repeatedly sent him emails although Jefferies no longer taught classes for ACSO, and Longamore forwarded the email to Sheriff Johnson and Chief Deputy Britt “for informational purposes.” (Id. at 210.) Sheriff Johnson testified that he did not open the email but, when informed about the email, told Chief Deputy Britt to make sure that Jeffries was not associated in any way with ACSO. (Doc. 154 at 155–58.) On May 1, 2013, Corporal Darryl Meyers — a supervisor in ACSO’s detention division — forwarded his supervisor, Lieutenant Wesley Anderson, an email titled “Profiling.” (Doc. 150 at 36– 37, 43; Gov’t Trial Ex. 21.) Corporal Meyers did not add anything to the text of the original email. (Gov’t Trial Ex. 21.) The original email began, “THE ORIGIN OF PROFILING.” (Id.) It then described a scene between historical figures Davy Crockett, William B. Travis, and Jim Bowie at the Alamo. (Id.) As the group looks out over “the hordes of Mexicans moving towards the Alamo,” Davy Crockett says to Jim Bowie, “Jim, are we, by any chance, having landscaping done today?” (Id.
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(quotation marks omitted).) Lieutenant Anderson forwarded the email, without additional text, to Greg Shattery — ACSO’s maintenance director. (Doc. 150 at 42.) Corporal Meyers testified that he did not believe the email to be derogatory or a slur. (Id. at 44.) This is not credible, either.
D. ACSO’s Supervision and Discipline of Its Officers In its complaint and post-trial brief, the Government challenged ACSO’s supervision and discipline of its officers. (Doc. 1 ¶¶ 52–67; Doc. 158 at 19–22, 67–75.) In addition to presenting testimony from ACSO officers at trial, the Government introduced expert testimony from Margo Frasier on standard law enforcement practices and procedures.56 (Doc. 151 at 21.) She specifically provided testimony on (1) whether ACSO had policies and training to limit discriminatory policing, and (2) what measures ACSO took in light of complaints about discriminatory policing. (Id. at 22–23.) To reach her opinion on these issues, Frasier reviewed ACSO’s entire policy book, including its harassment policy, read through witness depositions selected in part by the Government, and met with Government attorneys. (Id. at 23, 61, 73.) Frasier also visited Alamance County for
56 Sheriff Johnson originally challenged Frasier’s law enforcement qualifications as to her familiarity with North Carolina law. (Doc. 151 at 21–22.) This court allowed Frasier to testify subject to a later motion by Sheriff Johnson. (Id. at 22.) Sheriff Johnson never subsequently objected to Frasier’s qualifications.
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about six or seven hours but met exclusively with Government witnesses — several of whom were members of the advocacy group Fairness Alamance — to further inform her opinion. (Id. at 60– 61.) During her brief visit, Frasier did not meet with any current ACSO patrol officers or visit ACSO. (Id. at 58–60.) With Frasier’s expert testimony and the testimony of ACSO officers, the evidence at trial established the following facts on ACSO’s supervision and discipline.
1. Supervision ACSO has several policies meant to supervise the conduct of its officers.
a. ACSO’s Complaint Policy ACSO implements a citizen complaint procedure in conjunction with its disciplinary policy. (See Def. Trial Ex. 16.) The purpose of the complaint policy “is to establish guidelines and procedures for receiving, reporting, investigating, and adjudicating allegations and complaints against [ACSO] personnel.” (Id. at 1.) ACSO accepts complaints from “any source.” (Id. at 2.) Alamance County residents may visit ACSO’s website, email, call, or walk into ACSO to report an issue. (Doc. 152 at 187–89; Doc. 154 at 46.) Many residents also contact officers personally, particularly Sheriff Johnson, with issues and complaints. (Doc. 154 at 46.) “Any non-ranking or nonsupervisory member” in ACSO receiving a complaint must
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report the complaint to his or her supervisor. (Def. Trial Ex. 16 at 2.) All complaints received require completion of a complaint form. (Doc. 154 at 46; Def. Trial Ex. 16 at 2.) All supervisors must report complaints to the chief deputy within twenty-four hours of their receipt. (Def. Trial Ex. 16 at 2.)
The process of investigation for a complaint depends on the type of complaint received. (Doc. 152 at 188; Doc. 154 at 46– 47.) If the complaint is “minor,” described as “performance issues” such as an officer being rude, the officer’s supervisor handles the complaint. (Doc. 152 at 187–88; Doc. 154 at 46–48.) These investigations, known as “Supervisory Investigations,” require preliminary investigation and possible discipline, if warranted, by the supervisor. (Doc. 152 at 190–91; Def. Trial Ex. 16 at 2–3.) The chief deputy then reviews the complaint, investigation, and any discipline. (Doc. 152 at 190–91; Def. Trial Ex. 16 at 2–3.) If satisfied, the chief deputy signs off on the complaint, but if not, he returns the complaint to the supervising officer for further investigation. (Doc. 152 at 190–91.)
If, however, the complaint relates to an “ethical issue,” it is handled by ACSO’s Office of Professional Standards. (Doc. 154 at 47; Def. Trial Ex. 16 at 1–2.) Ethical issues include civil rights violations. (Def. Trial Ex. 16 at 1–2.) Under this type of investigation, an internal investigative officer
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conducts the investigation and reports directly to the chief deputy. (Doc. 152 at 191; Doc. 154 at 46–47; Def. Trial Ex. 16 at 3.) If the complaint involved potential criminal exposure, ACSO also contacts the District Attorney and SBI. (Doc. 154 at 47.) After investigation, the internal investigation officer classifies the complaint as “unfounded,” “unresolved,” “exonerated,” or “sustained.” (Def. Trial Ex. 16 at 6.) Sustained complaints or allegations are handled under ACSO’s “Rules of Conduct/Disciplinary Procedures” policy. (Id.) ACSO retains all complaints, even those found to be unfounded or minor. (Doc. 152 at 191; Doc. 154 at 48.)
Around 2009, ACSO installed car video cameras in all marked front-line cars. (Doc. 154 at 44–45.) According to Chief Deputy Britt, the cameras sometimes aid in the investigation of complaints and add “another level of supervision.” (Id. at 45.) Chief Deputy Britt testified that he would review video records when relevant to a complaint he reviewed. (Id.) Sheriff Johnson sometimes reviewed video records as well. (Id. at 91.) ACSO, however, had no policy regarding the review of video records. (Id. at 50.)
b. ACSO’s Review of Stops, Arrest, and Searches Outside of the complaint process, supervisors provide some review of traffic stops, arrests, and searches. For arrests, an officer fills out an arrest report, and his supervisor “checks
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off” on the report. (Doc. 150 at 139–40.) After the supervisor

provides this review, the report goes directly to ACSO’s records

clerk or its warrant division clerk. (Id.) Captain Wilson —

head of ACSO’s patrol division — performs no review of arrests

for probable cause or review for patterns of racial or ethnic

arrest profiling. (Id. at 147.)

For traffic stops, since at least 2009, Captain Wilson

collects daily traffic stop forms filled out by ACSO officers.

(Id. at 141–42.) She then compares those reports to an Alamance

County Central Communications Department report (a computer-

aided dispatch or “CAD report”). (Id.) The CAD report logs all

stops radioed over the County’s communication system. (Id.) If

a stop appears in the CAD report that does not have a

corresponding stop form, Captain Wilson contacts the officer who

made the stop to complete a stop form. (Id. at 142.) This type

of reminder by Captain Wilson occurs approximately one to three

times per week. (Id.) This process is designed to ensure that

all stops are memorialized by a stop form, which requires the

recording of information, including ethnicity. Captain Wilson,

however, conducts no “substantive review” of the traffic stop

forms to ensure that sufficient legal justification existed for

the stops. (Id. at 143.) Her review of CAD reports has never

identified an unconstitutional stop.

(Id. at 144–45.)

Similarly, Captain Wilson conducts no substantive review of

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searches following traffic stops and has never found a search to lack probable cause. (Id. at 145.) Captain Wilson has never been asked to conduct a review for potential racial or ethnic profiling. (Id. at 150.)
Captain Wilson’s superior, Major Brown, similarly conducted no systematic check of ACSO traffic stop forms, but he occasionally looked through traffic stop forms and arrest reports. (Id. at 175–78.) A lieutenant under Captain Wilson in the patrol division, Gerry Williams, testified that he also did not review stop forms for adequate legal justification. (Id. at 130.) Rather, he relied on Captain Wilson to do so. (Id.) Captain Wilson has returned officers’ incomplete stop forms to him but never because of a deficiency in a stop’s legal justification. (Id. at 131.)
Several officers also relied on the Alamance County District Attorney’s office and magistrates to review the legal justification for ACSO’s stops, arrest, and searches. For example, Captain Wilson testified that “the magistrate’s the one that’s going to find probable cause on your arrest. If she has — she or he has a problem, then they would speak of it.” (Id. at 156.) Sheriff Johnson similarly believed that challenges to the legal justification for a stop should be left to “the discretion of the officer and the discretion of the magistrate or the [District Attorney’s] office or the judge.” (Doc. 154 at
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83.) Neither the Government nor Sheriff Johnson presented

evidence that the Alamance County District Attorney’s Office or

any magistrate or judge ever found an unconstitutional stop,

arrest, or search by ACSO. Similarly, the Alamance County

District Attorney — Patrick Nadolski — and Magistrate Wortinger

testified that they had never found a stop, arrest, or search

lacking in the requisite legal justification. (Doc. 149 at 169;

Doc. 152 at 93–94.) Sheriff Johnson also met regularly with

District Attorney Nadolski and never received a report regarding

an unconstitutional stop, arrest, or search conducted by an ACSO

officer. (Doc. 152 at 88; Doc. 154 at 82.)

Finally, ACSO conducts performance evaluations of its

officers. From about 2004 to 2009, ACSO stopped conducting

formal reviews because they were no longer required by the

County. (Doc. 154 at 153.) ACSO did conduct informal

performance reviews during that time period, however. (Id. at

93.) Starting in 2009, ACSO — of its own accord — reinstituted

formal annual performance reviews of its officers. (Id. at 151,

153–54.) Neither party has submitted evidence on the substance

of these performance reviews.

According to Frasier, standard review of traffic stops,

citations, arrests, and searches includes the review of the

makeup of those stopped, cited, arrested, or searched. (Doc.

151 at 25–26, 79–80.)

That review should also include

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evaluation of the standards applied by officers in making arrests, citations, stops, and searches. (Id. at 27, 79–80.)
c. ACSO’s Traffic Stop Data Reporting ACSO submits monthly reports of its traffic stop data, including race and ethnicity information, to the North Carolina SBI.57 (Doc. 150 at 148.) Captain Wilson is responsible for submitting this data. (Id.) For several months from 2009 to 2012, in addition to sending data to the SBI, Captain Wilson also sent a summary report of traffic stops to Sheriff Johnson and Chief Deputy Britt. (Id. at 148–49.) Her additional report organized the data sent to the SBI into percentage figures. (Id. at 148, 162–63.) However, neither Sheriff Johnson nor Chief Deputy Britt followed up with her on either the original data or Captain Wilson’s additional reports. (Id. at 149.) It turns out that the data Captain Wilson sent to Sheriff Johnson and Chief Deputy Britt was the same as the data sent to the SBI, so her report was duplicative. (Id. at 158.) Eventually, Chief Deputy Britt, through Major Holland, determined that the additional report was not needed, and Captain Wilson stopped sending it. (Id. at 149–50.) All ACSO data sent to the SBI is
57 As noted earlier, because of software changes, ACSO underreported its traffic stop data to the SBI for a time. (Doc. 154 at 20.) Once made aware of the problem, Chief Deputy Britt reported the problem to the SBI. (Id.) To remedy the problem, ACSO implemented new software and created additional administrative review to ensure that it reported all officer stops. (Id.)
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posted by the North Carolina Attorney General on its website, along with all state law enforcement agencies’ traffic stop data. (Doc. 154 at 21.) In addition, ACSO recently began posting its traffic stop data on its own website. (Id.)
d. ACSO’s Training of Its Officers ACSO officers undergo extensive training, which includes education as to making legal stops, arrests, and searches, as well as minority sensitivity. All ACSO officers must undergo some seven hundred hours of training at Basic Law Enforcement Training. (Id. at 82.) ACSO also assigns new officers a training officer for a period of time ranging from six months to a year. (Id.) North Carolina law further requires that officers attend twenty-four hours of training annually. (Doc. 152 at 177; Doc. 154 at 66.) From 2009 to 2012, that mandatory training included a two-hour course for “juvenile and minority sensitivity training,” known as “JMST.” (Doc. 152 at 177–78.) ACSO required its officers to attend that two-hour training session. (Def. Trial Exs. 21–24.) In 2012, ACSO officers also received State-mandated training in “traffic interdiction.” (Doc. 152 at 182; Def. Trial Ex. 24.) In addition to the State-mandated training, ACSO implemented significant supplemental training under Sheriff Johnson. Prior to Sheriff Johnson’s tenure, ACSO officers received little training and instruction. (Doc. 152 at 186–87;
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Doc. 154 at 65–66.) After taking office, Sheriff Johnson

secured a $50,000 training budget to supplement the training

required by the State. (Doc. 154 at 66.) From 2009 to 2012,

ACSO officers attended over 450 officer training schools

throughout the country. (Def. Trial Ex. 14.) Hundreds of

ACSO’s officers received this supplemental training and spent a

total of 50,849 hours in training during that time. (Id.) Many

of these supplemental training hours educated officers on the

necessary legal standards for conducting searches, making stops,

and performing arrests. (Doc. 154 at 83–84; Def. Trial Exs. 21–

24.)

As an example of this training, Lieutenant Williams — a

patrol officer — provided a nuanced description of the substance

of his drug interdiction training.

Lieutenant Williams

testified that, using approximately twenty “indicators” learned

through training, officers could more effectively make stops

likely to undercover drug trafficking and other drug-related

crimes. (Doc. 150 at 123–24, 132.) He made clear that “being

Latino” is not an indicator. (Id. at 123-24.) If the

indicators suggested possible drug trafficking, Lieutenant

Williams would then look for reasonable suspicion to stop the

vehicle. (Id. at 132.) He acknowledged that the indicators

alone “did not give [him] the right to stop the vehicle.” (Id.

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at 132–33.) Lieutenant Williams explained that he drew on this drug interdiction training when making stops. (Id. at 123.)
e. ACSO’s Harassment Prevention Policy ACSO’s policy manual also contains a “Harassment in the Workplace” policy. (See Gov’t Trial Ex. 138.) The policy states that ACSO “will not condone or tolerate, in any way, harassment of any type in the workplace.” (Id. at 1.) In particular, the harassment policy bans “[h]arassment of any person because of gender, race, color, age, religion, disability, ancestry or national origin” whether that harassment is “directed at an employee, vendor, or customer.” (Id. at 3– 4.) The policy goes on to list examples of prohibited conduct, including “racial and ethnic slurs or offensive stereotypes and making jokes about these characteristics.” (Id. at 4.) The policy requires that a violation of the policy “be reported promptly” unless the victim chooses to handle the situation on his or her own. (Id. at 5.)
f. Implementation of Email and Video Filtering Software
Since the start of the Government’s pre-trial investigation in this case, ACSO began employing computer software known as “Ironport” and “Blue Coat” to monitor and filter ACSO emails. (Doc. 154 at 28–29.) The software is designed to curb inappropriate conduct on ACSO’s computers and in its emails.
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(Id.) The Blue Coat software blocks access to internet sites
and certain information on the internet. (Id.) Both programs
now block internet games from loading and block the download of
games to an ACSO computer without administrator authorization.
(Id.) 2. Discipline
While ACSO has a disciplinary policy, that policy was not
introduced into evidence. (See Def. Trial Ex. 16 at 6
(referring to ACSO’s “Rules of Conduct/Disciplinary Procedures”
policy).) ACSO has available four basic disciplinary violation
levels — labelled Classes A through D. (Doc. 152 at 194.) The
classes of disciplinary violations correspond with disciplinary
action as follows:
A Class D violation would be basically a verbal reprimand, or it could be a plan of corrective action. A Class C reprimand would be a written reprimand, which it could be a written reprimand that would go in their personnel file. A Class B violation could be one to two days off, suspension without pay; and a Class A violation could be a combination of both, up to three days off without pay, including demotion or termination.
(Id.) Sheriff Johnson, Chief Deputy Britt, or both sign off on
disciplinary action. (Id. at 194; Doc. 154 at 48.) Use of
racially or ethnically degrading terms or the sending of emails
of a similar character are Class A violations, thus permitting a
disciplinary action of up to three days suspension without pay,
demotion, or termination. (Doc. 154 at 48, 60, 71.) Sheriff
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Johnson also listed five basic rules that he personally requires officers to follow. (Id. at 74–75.) Those rules prohibit “[l]ying, laziness, incompetence, running around with a married man or a married woman, and drinking in the county and showing yourself.” (Id.)
Specific contours of ACSO’s disciplinary policy aside, the evidence demonstrated that ACSO inconsistently applied it. In a number of circumstances, ACSO disciplined its officers for wrongdoings, which included racially and ethnically inappropriate epithets, jokes, statements, and emails. Prior to trial but after the Government began its investigation, ACSO demoted the Director of Detention — Coley Rich — to Captain and reduced his pay following an investigation in the ACDC conducted by Chief Deputy Britt. (Id. at 30–31, 62–63.) ACSO suspended Officer Anthony for failing to report another officer’s racial slur. (Doc. 147 at 201; Doc. 154 at 78.) The officer using the racial slur received discipline for his statement as well. (Doc. 154 at 78–79, 143—44.) Sheriff Johnson denied a promotion to Lieutenant Anderson for his use of a racially insensitive joke. (Doc. 150 at 44–46.) ACSO demoted Corporal Nicholson for sexual harassment. (Doc. 147 at 92–93.) ACSO also took disciplinary action against several other officers for, among other reasons, misleading an assistant district attorney, insubordination, and assault and detention of a juvenile. (See
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Doc. 147 at 162 (Officer Lloyd); Doc. 150 at 69 (Cobb), 105, 111 (Helms); Doc. 154 at 41–44 (Officer Lloyd); see also Doc. 154 at 48 (noting discipline occurring because of citizen complaints).)
The Government and Sheriff Johnson also produced testimony on the discipline of Officer Wiley, who sent the “Quick Draw” video game. Because discovery of the video game occurred only after Officer Wiley’s deposition in this case while litigation was pending, Sheriff Johnson deferred discipline until after the case is resolved. (Doc. 154 at 61–62.) In the meantime, Officer Wiley was invited to voluntarily step down three levels in rank, resulting in a pay decrease, which he accepted. (Doc. 149 at 246–47; Doc. 154 at 62.)
In a number of other instances, however, ACSO failed to discipline officers making racially and ethnically inappropriate statements, which departs from its own harassment policy. Multiple officers testified that they never observed or meted out discipline for the use of derogatory terms for Hispanics. (See, e.g., Doc. 149 at 136–37 (Lieutenant Denham stated that he has never disciplined officers for using derogatory language.); id. at 223–24 (Major Miles testified that he does not know of an officer receiving discipline for derogatory language and has not disciplined any officers for such conduct.); Doc. 150 at 66–67 (Cobb testified that he did not know of any ACSO officer receiving discipline for the use of derogatory statements.); id.
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at 104 (Helms stated he knew of no officer receiving discipline

for making derogatory statements.).)

Similarly, several

officers testified that they did not receive discipline for the

sending or forwarding of racially and ethnically inappropriate

emails. (See, e.g., Doc. 150 at 15–16, 21 (Lieutenant Hoover

never faced disciplined for forwarding the “Rules for Kicking

Ass” email or the “Texans” email.); id. at 36 (Corporal Meyers

was never disciplined for forwarding the derogatory “Profiling”

email.); id. at 42–44 (Lieutenant Anderson did not discipline

Meyers for forwarding the “Profiling” email and instead

forwarded the email to another ACSO employee.).)

3. Margo Frasier

In her expert opinion, Frasier concluded that ACSO (1)

lacked adequate practices and procedures to detect

discriminatory policing; (2) failed to discipline its employees;

and (3) failed to respond properly to complaints about

discriminatory policing.

First, Frasier testified that ACSO’s current practices and

procedures insufficiently monitored for discriminatory policing.

(Doc. 151 at 24–25.) She particularly criticized the practice

of relying exclusively on a magistrate or district attorney

review to detect discriminatory policing. (Id. at 27–28.)

According to Frasier, magistrate and district attorney review

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insufficiently scrutinizes law enforcement practices.58 (Id. at 28–29.) Frasier also critiqued Captain Wilson’s matching of CAD reports to traffic stop forms and ACSO’s method of data reporting as inadequate. (Id. at 32–33.) While recognizing that ACSO reported all of its data to the SBI, Frasier opined that Captain Wilson and ACSO should have conducted some sort of analysis of the data. (Id. at 32–33, 98.) Frasier, however, offered no testimony as to what ACSO should have done in its review or what other law enforcement agencies do with their stop data. (Id. at 27 (describing the analysis as “burrowing down and seeing whether or not you’re treating people differently”).)
Finally, Frasier stated that ACSO should not leave its stop, arrest, and search practices to officer discretion. (Id. at 38–40.) Instead, Frasier opined that ACSO should have implemented systematic review of officer stops, citations, and arrests. (Id. at 25–27.) For Frasier, that systematic review should occur regardless of whether the law enforcement agency believes discriminatory policing is, in fact, occurring. (Id. at 31.) For review of traffic stops, Frasier believed that a law enforcement agency should have “a policy on traffic stops,
58 Frasier testified that magistrates and district attorneys “often never” report discriminatory policing. (Doc. 151 at 29.) This opinion is contrary to the testimony of District Attorney Nadolski (called by Sheriff Johnson), who testified he would report discriminatory policing if he observed it. (Doc. 152 at 93–94.) Magistrate Wortinger was never asked whether she would report discriminatory policing.
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as far as the facts of how they’re to be conducted.” (Id. at 34.) As to an arrest policy, she testified that arrests should require supervisor approval. (Id. at 34–35.) Frasier offered no opinion on a search policy that would adequately curb profiling. She further suggested that, to find “the general premise of policies and what sort of policies you would have, . . . you can find a template for policies on the web.” (Id. at 69.)
On cross-examination, Frasier could point to no specific procedure that ACSO should use to review stops, arrests, and searches. (Id. at 79–80.) She could also offer no opinion on the extent to which other sheriffs’ offices in North Carolina review for potential citation patterns. (Id.) And, although critical of Captain Wilson’s and ACSO’s stop data collection and reporting, Frasier opined, “[T]hose [procedures] are all good things.” (Id. at 80–81.) She further characterized ACSO’s installation of video cameras in its vehicles as “fortunate.” (Id. at 79.) Frasier also appeared unaware of Sheriff Johnson’s weekly meetings with District Attorney Nadolski, but agreed that, if they did meet, that would be “a good thing.” (Id. at 86; see also Doc. 152 at 88 (District Attorney Nadolski acknowledged working with Sheriff Johnson “often.”); Doc. 154 at 82 (Sheriff Johnson stating he met with District Attorney Nadolski on a weekly basis).) Lastly, she did not say whether
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the training ACSO officers received from the State of North Carolina satisfied her concerns or not, and it is unclear whether Frasier was aware of ACSO’s training.
As to ACSO’s disciplinary policies, Frasier testified that ACSO lacked adequate measures. (Doc. 151 at 44–46.) She opined that a law enforcement agency should have a “zero-tolerance” policy toward derogatory statements, jokes, and emails and should require training for those violating that policy. (Id. at 40, 42.) She advocated that those at the top of an organization should vocally condemn any violation when it occurs. (Id. at 42.) In Frasier’s view, the lack of both this policy and consequences for policy violations would “create an atmosphere where that sort of behavior is tolerated.” (Id. at 41, 45–46.) She acknowledged, however, that these types of comments and jokes continue to occur in law enforcement agencies, although much less today than when she started forty years ago. (Id. at 41–42.)
While Frasier testified that “nothing happened” as a result of the emails and improper slurs made within ACSO, she was unaware of ACSO’s adoption of email filtering software, the demotion of Captain Rich, and the discipline of Officer Anthony. When asked about ACSO’s adoption of email filtering software, she opined that this was an “appropriate response.” (Id. at 91.) She also admitted to being unaware of Sheriff Johnson’s
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discipline of Officer Anthony for failing to report a racial

slur but was “glad to hear it.” (Id. at 90.) Frasier also

allowed that Sheriff Johnson may face limitations on his ability

to discipline during the course of the present litigation. (Id.

at 92-93.)

Finally, Frasier critiqued ACSO’s response to complaints

about law enforcement profiling. She stated that a law

enforcement agency faced with complaints should not ignore them

but rather address them. (Id. at 25.) More specifically, she

testified that a law enforcement agency should “strengthen” its

policy. (Id. at 37–38.) Frasier urged a law enforcement agency

receiving complaints to “sit down with critics” and have a

“conversation” with them. (Id. at 51–52.) Without this

reaction, Frasier opined, the community would come to distrust

law enforcement. (Id. at 55–56.) In her opinion, ACSO failed

to make adequate efforts at community outreach. (Id. at 54.)

Frasier, however, again appeared to be unaware of certain

efforts undertaken by ACSO.

Of particular note, she

acknowledged she was unaware “that the [S]heriff met with

[Professor] Roselle and Fairness Alamance” over their complaint.

(Id. at 63.) She allowed, though, that if Sheriff Johnson met

with Professor Roselle and Fairness Alamance, then she

“applaud[ed] him.” (Id.) As noted previously, Sheriff Johnson

did in fact met with Professor Roselle and Fairness Alamance on

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more than one occasion. Frasier also acknowledged that Sheriff Johnson investigated Professor Roselle’s complaint regarding the underreporting of stop data and corrected an underreporting problem in the computer data. (Id. at 66–67.) Frasier approved of Sheriff Johnson’s action as “the sort of thing that you should do . . . when somebody raises a legitimate concern.” (Id.) Although appearing unaware of ACSO’s provision of security at soccer fields frequently attended by Hispanics, Frasier commended this and other community outreach efforts as “all good things” and “positive.” (Id. at 53–54, 88.)
In short, Frasier is a credible witness who appears not to have been provided complete information about ACSO. Thus, her opinions have limited value because they were based on a partial review of the evidence and lack of awareness of key facts. Further, her opinion appears to have been informed in part by Professor Roselle, who was less than objective in her concerns about ACSO. II. CONCLUSIONS OF LAW
Based on the above facts and any further facts noted hereafter, the court makes the following conclusions of law.
A. Motion to Exclude Dr. Lamberth’s Testimony As a preliminary matter, the court must resolve Sheriff
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Johnson’s motion to exclude the testimony of Dr. Lamberth.59 (Docs. 127–28, 142–44.)
Sheriff Johnson does not challenge Dr. Lamberth’s qualifications, only the admissibility of his testimony. Specifically, the Sheriff challenges Dr. Lamberth’s absence of a standard for identifying Hispanics; his method of calculating a benchmark for comparison; the lack of a known error rate; the use of citation rather than traffic stop data; the use of selected observation time periods; and the non-random selection of roads. (See Doc. 128.) In a hearing on August 8, 2014, this court reserved ruling on Sheriff Johnson’s motion, holding the motion in abeyance until trial. (Doc. 156 at 2.) Sheriff Johnson renewed his motion at trial during Dr. Lamberth’s testimony. (Doc. 148 at 36.) The court deferred decision until after Dr. Lamberth’s direct and cross-examination. (Id. at 36– 37.) Counsel elected to withhold argument on the motion until the close of the Government’s case. (Id. at 189–90.) After hearing argument on the motion following the close of the Government’s case, the court reserved ruling. (Doc. 151 at 230– 31; Doc. 152 at 4–14, 57.) With the entirety of Dr. Lamberth’s testimony now before it and after careful consideration, this court concludes that the testimony is unreliable as applied to
59 Sheriff Johnson also moved to exclude Dr. Lamberth’s expert reports which, although hearsay, were never offered at trial.
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this case and will grant Sheriff Johnson’s motion to exclude it. 1. Admissibility
Federal Rule of Evidence 702 governs the admissibility of expert testimony. This rule requires that trial judges “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). “A reliable expert opinion must be based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods.” Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 200 (4th Cir. 2001) (quoting Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999)). To guide this “gatekeeping” function, the Supreme Court has identified several nonexhaustive factors useful for evaluating the reliability of proposed expert testimony, which include:
(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community. Id. at 199 (citing Daubert, 509 U.S. at 592–94). The Government must establish the admissibility of Dr. Lamberth’s testimony by “a preponderance of proof.” Id.
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a. Testability

“Ordinarily, a key question to be answered in determining

whether a theory or technique is scientific knowledge that will

assist the trier of fact will be whether it can be (and has

been) tested.” Daubert, 509 U.S. at 593. In this case, the

most evident problem with Dr. Lamberth’s testimony is that his

methodology is seriously flawed and cannot be replicated.

Although citing prior studies by Dr. Lamberth and others, the

Government has not shown that the methods used in Dr. Lamberth’s

study have been independently tested. See Ruffin v. Shaw

Indus., Inc., 149 F.3d 294, 297–99 (4th Cir. 1998) (finding no

evidence that expert witness’s methodology had been

independently replicated “under the same conditions as used in”

the expert’s study); Newman v. Motorola, Inc., 218 F. Supp. 2d

769, 777–83 (D. Md. 2002) (excluding experts’ testimony in part

because their studies had not been replicated).

More

specifically, the studies relied on by the Government as proof

of reliability do not involve observational studies of

Hispanics, like the one performed by Dr. Lamberth. See Fabien

Jobard et al., Measuring Appearance-Based Discrimination: An

Analysis of Identity Checks in Paris, 67 Population 349, 358

(English ed. 2012) (observational study not involving Hispanics

and identifying individuals while walking at railway stations);

Joseph B. Kadane & John Lamberth, Are Blacks Egregious Speeding

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Violators at Extraordinary Rates in New Jersey?, 8 Law, Probability & Risk 139, 142–44 (2009) (mobile observational study comparing African-American drivers, not Hispanic drivers, to non-African-American drivers); Katherine Beckett et al., Race, Drugs, and Policing: Understanding Disparities in Drug Delivery Arrests, 44 Criminology 105, 110–15 (2006) (observational study involving Hispanics but only involving individuals either self-reporting their ethnicity or observed while standing in “outdoor drug market”).
The cases cited by the Government to suggest the testability of Dr. Lamberth’s study suffer from similar shortcomings. See Chavez v. Illinois State Police, 251 F.3d 612, 644 (7th Cir. 2001) (citing article discussing Dr. Lamberth’s work observing African-American drivers); Md. State Conf. of NAACP Branches v. Md. Dep’t of State Police, 72 F. Supp. 2d 560, 566 (D. Md. 1999) (referencing “statistics” without any mention of how those statistics were calculated or what they measured and applying no evidentiary standard to those statistics); Commonwealth v. Lora, 886 N.E.2d 688, 700–02 (Mass. 2008) (mentioning Dr. Lamberth’s study observing AfricanAmerican drivers); State v. Ballard, 752 A.2d 735, 742–45 (N.J. Super. Ct. App. Div. 2000) (accepting, on a request for discovery and not on the merits, an observational study by Dr. Lamberth involving Hispanics but offering no information on the
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study’s features, making it difficult to derive much persuasive value from the decision); State v. Soto, 734 A.2d 350, 352–57 (N.J. Super. Ct. Law Div. 1996) (analyzing Dr. Lamberth’s observational benchmark work regarding African-American, but not Hispanic, drivers).
Not only has Dr. Lamberth’s methodology in this case not been independently tested under the same or similar conditions, but, more importantly, it cannot be. See Daubert, 509 U.S. at 593. Critical to Dr. Lamberth’s study was his identification of Hispanics to set a “benchmark” by which to judge ACSO’s data. Yet, Dr. Lamberth conceded that no control, standard, or description was used to identify Hispanics in his study. (Doc. 148 at 181.) Instead, Rivera — the surveyor observing virtually all of the drivers — simply identified people as Hispanic if he thought they “appeared to be” Hispanic. (Id.) Dr. Lamberth offered no information on what, if any, standard Rivera used.60 Dr. Lamberth’s study thus relies entirely on the subjective views of Rivera and Valdez and their personal, totally subjective say-so of who should be considered “Hispanic.” As a result, it not only cannot be determined who was considered
60 When asked for his own definition of Hispanic, Dr. Lamberth responded, “[T]he Census Bureau basically indicates that people who self-identify as Hispanics are Hispanics.” (Doc. 148 at 129–30.) Yet, as he admits, it is virtually impossible to track down those in the observational study to have those individuals self-identify as Hispanic. (Id. at 59 (stating that he “[a]lmost never” has the opportunity to ask drivers their race or ethnicity).)
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“Hispanic,” but the method used cannot be independently tested. These flaws render the study unreliable. See Brown v. Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 772–73 (7th Cir. 2014) (upholding district court’s exclusion of expert testimony because that testimony relied on “subjective experience instead of a proper scientific approach”); Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 420–22 (7th Cir. 2005) (excluding expert testimony as “untestable say-so”); R.F.M.A.S., Inc. v. So, 748 F. Supp. 2d 244, 282–83 (S.D.N.Y. 2010) (excluding expert testimony that was “little more than conclusory say-so”).
The Government attempts to downplay this failing by pointing to Dr. Lamberth’s opinion that the errors in his benchmark would have to be wrong by “about 400 percent or more” to destroy the statistical significance of his conclusions. (Doc. 148 at 109–10.) In other words, he urges, he would have to be wrong in about three out of every four cases. (Id.) As noted in the discussion of “error rates,” infra, the problem with this argument is that there is no reliable way of knowing just how wrong his benchmark may be. See BASF Corp. v. Sublime Restorations, Inc., 880 F. Supp. 2d 205, 212–14 (D. Mass. 2012) (holding that expert’s subjective “eyeballing” produced “an unknown error rate” and lacked reliability); KW Plastics v. U.S. Can Co., 131 F. Supp. 2d 1289, 1294 (M.D. Ala. 2001) (concluding that “an unknown error rate” rendered an expert’s methodology
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unreliable). Thus, the court declines to accept this beguiling invitation to ignore the fundamental flaw in Dr. Lamberth’s methodology.
b. Peer Review Similarly, Dr. Lamberth has not demonstrated adequate peer review and publication supporting the application of his methodology in this case. See Daubert, 509 U.S. at 592–94. The Government contends that Dr. Lamberth’s methodology has been used and cited in other studies (several of which include Dr. Lamberth as an author). But, none of those studies attempted to observe Hispanics in passing vehicles from the roadside, as in this case. Rather, most involved comparing African-Americans to non-African-Americans, or utilized more reliable methods of observation. See Jobard et al., supra, at 358 (observational study not involving Hispanics and identifying individuals while walking at railway stations); Kadane & Lamberth, supra, at 142–44 (mobile observational study comparing African-American drivers, not Hispanic drivers, to non-AfricanAmerican drivers); Beckett et al., supra, at 110–15 (observational study involving Hispanics but only involving individuals either self-reporting their ethnicity or observed while standing in “outdoor drug market”); see also David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters, 84 Minn. L. Rev. 265, 277–88 (1999)
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(referring to Dr. Lamberth’s mobile observational study involving African-Americans).61 Those articles, therefore, offer little support for the reliability of the stationary observation of Hispanics from the roadside during the day and night undertaken in this case.
c. Error Rates The known or potential rate of error of a technique is a factor that bears on its reliability and thus the proffered conclusions. See Daubert, 509 U.S. at 592–94. Here, Dr. Lamberth’s methodology contains several unknown rates of error without any reliable method to control for them. Most obvious, the rate at which the surveyors misidentify Hispanic drivers is unknown, as the surveyors used no controlling standard. Dr. Lamberth admitted there was no control, template, or description used to identify Hispanics in his study. (Doc. 148 at 181.) Instead, surveyors simply identified people as Hispanic if either (almost always Rivera) thought the driver “appeared to be” Hispanic based on their subjective evaluation. (Id.)
61 Both the Government and Sheriff Johnson cite and quote favorably from Lorie Fridell, By the Numbers: A Guide for Analyzing Race Data from Vehicle Stops (2004). None of the expert witnesses testified that the book was authoritative, as required by Federal Rule of Evidence 803(18). In fact, Dr. Banks stated that the book was not authoritative, and Dr. Lamberth conceded the same, even though he authored one of the appendices. (Doc. 148 at 185; Doc. 153 at 121– 22.)
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Dr. Lamberth’s attempted use of an “inter-rater
reliability” test in an effort to control for the unknown error
rate provides no assistance. As described earlier, this test,
when conducted according to design, independently compares the
observations of multiple observers to ascertain how often they
agree on an individual’s race or ethnicity.62 (Doc. 148 at 56–
57, 61.) The more the observers agree, the more “reliable”
their reported observations. In this case, while Dr. Lamberth
reports that Rivera and Valdez claim to have reached “100%
agreement” during their inter-rater reliability test (id. at
60), this conclusion is essentially meaningless. Once probed,
their test group was revealed to be only ten drivers — a
statistically unreliable sample size.63 (Id. at 128.) And, even
further, none of those drivers was identified as Hispanic. (Id.
62 The court notes, but does not rely on, the fact that By the Numbers, to which Dr. Lamberth contributed, suggests that observational benchmarking should use “two or three observers,” with the observers’ reported findings tested for inter-rater reliability. Fridell, supra note 61, at 174. Whatever the interpretation of this standard, the court simply observes that Dr. Lamberth essentially used only one observer, Rivera, and one recorder, Valdez.
63 From a statistical point of view, Dr. Lamberth failed to ensure accurate identification because of his test’s lack of reliable sensitivity and specificity. Sensitivity is “the true positive rate” of a test (i.e., the rate at which the surveyors correctly identified Hispanics), and specificity is “the true negative rate” (i.e., the rate of correctly identifying non-Hispanics). (Doc. 153 at 118–19.) Dr. Lamberth’s test produced unreliable information as to the surveyors’ sensitivity and specificity by using only ten drivers. (Id. at 118–20.) According to Dr. Banks, the test would have needed at least two hundred non-Hispanics to ensure accurate and reliable identification. (Id. at 119–20.)
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at 131.) The test therefore provides no information as to whether the surveyors would agree as to the identification of a single Hispanic driver.64 In short, the error rate of Hispanic driver identification in Dr. Lamberth’s study is completely unknown because the surveyors followed no objective standard. See EEOC v. Kaplan Higher Educ. Corp., 748 F.3d 749, 753 (6th Cir. 2014) (finding no abuse of discretion in district court’s exclusion, as unreliable, of expert who relied on “raters” who “had no particular standard in classifying each applicant” into one of five races and who “instead, . . . just eyeballed . . . DMV photos”); Valente v. Textron, Inc., 931 F. Supp. 2d 409, 425–26 (E.D.N.Y. 2013) (finding expert testimony unreliable because “a different expert [could not] verify [the testifying expert’s] results”), aff’d, 559 F. App’x 11 (2d Cir. 2014).
As noted, the Government nevertheless contends that Dr. Lamberth’s team “would have to be wrong by over 400 percent” of the time or, put differently, would have to have “misidentified 3 out of every 4 Latino drivers” for the error rate to impact the study’s statistical significance. (Doc. 158 at 51.) The Government further relies on Dr. Lamberth’s previous studies
64 Of course, even if there was agreement, Dr. Lamberth’s test provides no information about whether any identified driver was actually Hispanic. But because ACSO could have stopped drivers whom they thought looked Hispanic but were not, and because practical difficulties may exist in making that determination, the court does not consider this additional problem.
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reporting high levels of inter-rater reliability. (Id. at 44.) Neither of these arguments is persuasive.
As to the Government’s first argument regarding the degree of error, there is no proof that Dr. Lamberth’s team could agree on an assessment of any Hispanic driver. Yet, it is the Government’s burden to prove admissibility. See Cooper, 259 F.3d at 199. Given the lack of any proof as to Rivera’s error rate, the Government cannot rely on the degree of error necessary to impact statistical significance or prior studies to attempt to shore it up. On this record, an unknown figure raised to any power remains unknown.
The Government’s reliance on past studies is equally unconvincing. The Government offers no evidence as to how Dr. Lamberth conducted past inter-rater reliability tests, rendering them no more trustworthy than the one conducted here involving only ten drivers. Moreover, even assuming Rivera’s inter-rater agreement was reliable in previous studies, past reliability provides no more than the possibility that Rivera is reliable in this case. That is not the standard for determining testability and rate of error.
Further, the surveyors’ error rate in identifying North Carolina law violations is completely unknown.65 Dr. Lamberth
65 An additional unknown error rate is the error rate in Dr. Lamberth’s
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testified that Rivera is a former New Jersey police officer but that he was familiar with North Carolina’s traffic laws. (Doc. 148 at 72, 188.) No information was provided as to Valdez. According to Dr. Lamberth, Rivera was looking for all violations of Chapter 20 of the North Carolina General Statutes. (Id. at 179.) It is questionable whether Rivera — as a former New Jersey police officer — or Valdez could in fact know and identify all North Carolina traffic violations. But even if they could, it is doubtful that they would have had proper opportunity to identify many traffic violations while seated on the side of the road facing oncoming traffic. (Id. at 64.) Identifying certain traffic violations, such as a failure to display a registration plate, N.C. Gen. Stat. § 20-63(b), and a failure to equip a vehicle with rear lamps in good working order, N.C. Gen. Stat. § 20-129(d), would require observation of a vehicle as it passes and drives away, which would then limit a surveyor’s ability to identify ethnicity and traffic violations for other oncoming vehicles. See United States v. Mesa-Roche, 288 F. Supp. 2d 1172, 1190 (D. Kan. 2003) (noting “an obvious concern” with Dr. Lamberth’s study “is the accuracy of the spotters’ recorded data, in light of the short period of time Hispanic surname analysis. Drs. Lamberth and Banks offered competing estimates of the error rate for this surname analysis, 3% to 5% versus 10% to 20%, respectively. (See Doc. 148 at 95–97; Doc. 153 at 140– 41.) Because of the problems already identified, the court need not address this issue.
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they have to record this information as a car passes them by”). The Government bears the burden of demonstrating the admissibility of Dr. Lamberth’s study and has failed to persuade the court in demonstrating the surveyors’ ability to identify North Carolina traffic violations. See Cooper, 259 F.3d at 199.
d. General Acceptance This court also questions whether the observational methodology Dr. Lamberth used in this case is generally accepted in the relevant scientific field. See Daubert, 509 U.S. at 592– 94. The Government offers Dr. Lamberth as an expert in studying patterns of traffic enforcement. (Doc. 148 at 37.) The Government, however, offers little to demonstrate the general acceptance of Dr. Lamberth’s observational benchmarking techniques used to measure traffic enforcement patterns as applied to Hispanics. Although never testifying that his methodology used in this case is generally-accepted within any scientific field, Dr. Lamberth testified that other researchers have used a similar benchmarking methodology in North Carolina. (Id. at 169.) He also opined that certain aspects of his study, such as the inter-rater reliability test and surname analysis, have been accepted. (Id. at 58, 91.) Critically, though, the Government offers nothing to show that Dr. Lamberth’s roadside observational method for
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identifying Hispanic violators is generally accepted in a scientific field. As noted earlier, the articles the Government relies on to demonstrate the reliability of Dr. Lamberth’s study do not involve Hispanics or the same observational techniques conducted here.
In fact, one of the articles that Dr. Lamberth and the Government cite directly undermines the methodology Dr. Lamberth used in this case. Both Dr. Lamberth (id. at 169) and the Government (Doc. 158 at 40) point to William R. Smith et al., The North Carolina Highway Traffic Study (Jan. 2004) (“Smith article”), as supportive of Dr. Lamberth’s observational benchmarking. That article actually supports, and applied, a different observational method, known as the “carousel method.” Smith, supra, at 6, 251, 254. That method is one “in which a research vehicle is driven at the speed limit, and vehicles that pass the research vehicle can be examined from the vantage point of the research vehicle, wherein the researchers can identify the race and other demographic features of the driver.” Id. at 254. This was the methodology used by Dr. Lamberth in a prior case. See Soto, 734 A.2d at 352–57.
When discussing the roadside observation methodology used in this case, however, the Smith article reaches a different conclusion, undermining Dr. Lamberth’s opinions:
One might think that data collection would be as 135

easy as standing by the side of the road and observing. Armed with a radar gun and a pad of paper, researchers seemingly could record the race, as well as perhaps the gender, age, and speed of drivers as they drive by, and then would be able to compare such data with the rates of stops and citations for a given highway. Researchers might even be able to observe vehicles weaving unsafely, or vehicles with expired license plate “stickers,” or perhaps identify drivers they thought were “driving while intoxicated.” One could conceivably estimate speed of the vehicles on a video tape by measuring the time during which a known distance is traveled.
These first thoughts on how to collect data on the behavior of drivers, however, have several problems that make them impractical. One problem is that the glare on windshields and side windows of vehicles makes it difficult to see clearly the motorist’s race, as well as his or her gender or age, from a safe distance at the side of the road. The glare is in part due to the tinting done on most, if not all, windshields and to the angle of light from the sky (even on cloudy days). Video cameras suffer from the same problem. The skeptic is encouraged to simply try to stand (from a safe distance) near a highway with fast-moving traffic, and see how often they can successfully identify the demographic characteristics of drivers. We experimented with this method and found that we were frequently unable to do so. Compounding this difficulty is the high rate of speed of the passing vehicles, as there is little time to assess demographic characteristics, much less their speed. More importantly, when we tried this technique (roadside viewing), it did not seem likely that our failure to identify demographic characteristics was random (else one could argue that misses were “random error” and could be safely ignored). Rather, some types of vehicles or conditions, such as an open side window, seem to permit greater visibility than others. In short, we suspect that it is simply too difficult to reliably ascertain demographic characteristics from the sides of busy roads (also, it is rather unsafe for the observer, unless he or she is well removed from the highway, but then it is even harder to see into passing vehicles).
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Id. at 252–53 (emphasis added). While certainly not dispositive
on the issue of general acceptance, this article highlights the
lack of support for the particular method of observation used in
this case.
Finally, although the Government cites case law accepting
Dr. Lamberth’s work, a more extensive search reveals quite the
opposite, with many decisions voicing concerns similar to those
in the Smith article. As noted earlier, this court has
identified four cases supporting some form of Dr. Lamberth’s
observational methodology, but each case either did not involve
Hispanics or failed to provide sufficient information to assess
the relevant studies’ comparability to this case.
Several decisions analyzing the exact methodology performed
by Dr. Lamberth in this case, however, have questioned that
methodology. For example, in United States v. Alcaraz-Arellano,
302 F. Supp. 2d 1217 (D. Kan. 2004), aff’d, 441 F.3d 1252 (10th
Cir. 2006), the court found Dr. Lamberth’s study to be
unreliable, noting:
[Dr. Lamberth’s] study relies upon subjective and swift, if not split-second observations of Dr. Lamberth’s surveyors for its collection of benchmark data regarding the race and ethnicity of drivers. In most cases, one person looked at a car and wrote down the race he or she believed the driver to be, and that conclusion served as the ultimate benchmark data. Yet one person’s perception of what another’s race is may be vastly different than someone else’s perception of the same individual.
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Id. at 1229–30; see also id. (noting further that “a better method of gathering benchmark data is to have two or three surveyors look at the same car and compare results to measure the extent to which surveyors uniformly perceived race”). Another decision observed, “[G]iven that race is merely a social construct, the Lamberth study . . . ha[s] not resolved the inherent difficulties in identifying the race or ethnicity of a particular person.” United States v. Parada, 289 F. Supp. 2d 1291, 1305–06 (D. Kan. 2003). Two other decisions found Dr. Lamberth’s methodology “suspect,” noting “flaws” such as the “short period of time” surveyors had to record information as vehicles passed. United States v. Duque-Nava, 315 F. Supp. 2d 1144, 1158 (D. Kan. 2004); Mesa-Roche, 288 F. Supp. 2d at 1190.
Most surprising, in these cases critiquing Dr. Lamberth’s methodology, is the revelation that the Government was the party opposing his methodology as unreliable. See Alcaraz-Arellano, 302 F. Supp. 2d at 1230 (agreeing with Government’s expert that it would be “difficult” to conduct Lamberth’s observational methodology); Mesa-Roche, 288 F. Supp. 2d at 1190 (rejecting “government’s criticism that the entire Lamberth study should be disregarded because it rests on an invalid presumption”).
To summarize, the Government points to only one study and one case accepting observations of Hispanics and no studies or cases approving of the same observational methodology used in
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this litigation. This showing is far from demonstrating general acceptance of the methodology Dr. Lamberth employed in this case. See Cooper, 259 F.3d at 199.
Considering all factors related to Dr. Lamberth’s testimony, the court is not persuaded that Dr. Lamberth’s opinions are sufficiently reliable and valid to be admissible under Rule 702 of the Federal Rules of Evidence. Dr. Lamberth’s observations and analysis may be helpful on a consulting basis to encourage a law enforcement agency to further examine its practices, but they simply fail to be reliable and to produce valid results to be admissible in this case. Therefore, Sheriff Johnson’s motion to exclude the testimony of Dr. Lamberth will be granted.66
2. Credibility Even if Dr. Lamberth’s study were admissible, this court would not accept his conclusions as credible for several reasons. First, Dr. Lamberth’s testimony directly contradicts his prior writings. At trial, he testified that the most accurate benchmark for determining disparities in traffic enforcement was law violators rather than all traffic. (Doc. 148 at 170.) Yet, 66 The exclusion of Dr. Lamberth’s study in this case should not be read to suggest that observational studies of Hispanics could never be admissible in federal court. Here, the multitude of errors, when combined, simply render Dr. Lamberth’s study unreliable and thus inadmissible.
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in the book By the Numbers, Dr. Lamberth authored an appendix

offering the exact opposite conclusion. Lamberth et al.,

“Making the Case for Measuring ‘Who Is Driving’ Instead of ‘Who

Is Violating,’” in Lorie Fridell, By the Numbers: A Guide for

Analyzing Race Data from Vehicle Stops 411 (2004). In that

appendix, Dr. Lamberth concludes, “We believe that it is not

necessary or possible to develop a benchmark that adequately

measures the factors that influence a police officer to stop a

particular vehicle.” Id. at 416 (emphasis added); see also id.

at 415 (“[C]ategorizing hundreds of possible violations is an

insurmountable task.”). Dr. Lamberth reached this conclusion,

in part, by noting the “important argument . . . that there are

literally hundreds of traffic violations for which a motorist

can be legally stopped.”

Id. at 414–15 (observing the

“subjective” nature of measuring traffic violations).

Dr. Lamberth’s methodology and testimony further conflicts

with his prior opinions in the By the Numbers appendix on the

effectiveness of stationary observation sites. Here, Dr.

Lamberth used stationary observational sites to measure traffic

violations, and he opined that those sites allowed for “a very

complete set of” traffic violation observations. (Doc. 148 at

64–68.) In his prior work, however, Dr. Lamberth unequivocally

states,

[D]etecting the vast majority of traffic violations for

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which a motorist can be stopped from a stationary point

or even from a moving vehicle is either not possible or

prohibitively time consuming. That is, while many of

the violations are always present (equipment

violations), they may not be obvious until the vehicle

is observed from several angles.

Stationary

observations do not allow the necessary views.

Lamberth, supra, at 415 (emphasis added); see also Kadane &

Lamberth, supra, at 143 (“Observing the race/ethnicity of a

motorist from a vehicle is easier to do than from a stationary

point on the roadway because the observer is closer to the

observed individual . . . and has more time to make the

observation.”).67

In addition to the contradictions in the appendix he

authored in By the Numbers, Dr. Lamberth also offered differing

opinions on surveyors’ ability to identify Hispanic drivers. At

trial, Dr. Lamberth downplayed difficulties in identifying

Hispanic drivers. (Doc. 148 at 127.) Counsel for Sheriff

Johnson, however, impeached this testimony by citing Dr.

Lamberth’s prior work, in which he states “it is easier to

identify black motorists visually than it is for Hispanic

motorists.” (Id.) Moreover, Frasier, a former sheriff and the

Government’s expert in law enforcement practices and procedures,

67 Dr. Lamberth also contradicted his prior writings concerning the relevant data to compare with an observational benchmark. He designed his methodology in this case to compare his observed benchmarks to citations issued by ACSO. (Doc. 148 at 38–39.) He previously wrote, however, that traffic stop data, rather than citation data, is “the more reliable measure of officer behavior.” Lamberth, supra, at 416.
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confirmed the unreliability of Dr. Lamberth’s methods in the context of this case:
Q: How do you recognize an Hispanic? A: I don’t think that you can assume that you can
recognize an Hispanic. (Doc. 151 at 92.)
In sum, Dr. Lamberth repeatedly contradicts himself and abandons previously-held (and commonsensical) views to bolster the methodology he used in this litigation. This type of selfserving testimony seriously undermines his credibility and leads the court to reject his expert testimony.
B. Motion to Exclude Dr. Banks’ Testimony The Government moves to exclude the testimony of Dr. Banks.68 (Doc. 115.) Sheriff Johnson responded to the motion (Doc. 133), and the Government replied (Doc. 141). The Government challenges both Dr. Banks’ qualifications and the admissibility of his testimony. (Doc. 115 at 3–21; Doc. 153 at 90–91; Doc. 158 at 110–15.) Both challenges will be addressed in turn.
1. Dr. Banks’ Qualifications The Government contests Dr. Banks’ qualifications to critique the work of Drs. Lamberth and MacDonald. (Doc. 115 at
68 The Government also moved to exclude Dr. Banks’ expert reports, but Sheriff Johnson never offered them at trial.
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16–21; Doc. 153 at 90–91.) A witness “may testify in the form

of an opinion” when that witness “is qualified as an expert by

knowledge, skill, experience, training, or education.” Fed. R.

Civ. P. 702. “[A] witness may be qualified as an expert on any

one of the five listed grounds.” Friendship Heights Assocs. v.

Vlastimil Koubek, A.I.A., 785 F.2d 1154, 1159 (4th Cir. 1986).

According to the Fourth Circuit,

Where the expert’s qualifications are challenged, the test for exclusion is a strict one, and the purported expert must have neither satisfactory knowledge, skill, experience, training nor education on the issue for which the opinion is proffered. One knowledgeable about a particular subject need not be precisely informed about all details of the issues raised in order to offer an opinion.

Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (quoting Thomas

J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 799 (4th Cir.

1989)); see also Martin v. Fleissner GMBH, 741 F.2d 61, 64 (4th

Cir. 1984) (holding that a “lack of direct experience is not a

sufficient basis to reject [a proposed expert’s] testimony, but

may affect the weight that testimony is given, a decision

properly made by the [fact finder]”).

“The witness’

qualifications to render an expert opinion are also liberally

judged by Rule 702.” Kopf, 993 F.2d at 377.

First, the Government contends that Dr. Banks lacks the

expertise to testify on Dr. Lamberth’s use of surname analysis

and observational benchmarking. (Doc. 115 at 16–18.) The court

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finds Dr. Banks qualified to testify on those subjects.

Throughout his career, Dr. Banks has supervised individuals

performing surname analyses, and he has also published on

surname analysis. (Doc. 153 at 139.) Dr. Banks further sits on

the Human Rights Data Analysis Group, which utilizes surname

analysis when performing records linkage to identify civilian

casualties in areas of conflict. (Id. at 140.) As to

observational benchmarking, while acting as the chief

statistician at the U.S. Department of Transportation, Dr. Banks

analyzed a written report on racial profiling on the New Jersey

Turnpike. (Id. at 81.) At trial, Dr. Banks also demonstrated

his familiarity with the observational method employed by Dr.

Lamberth. When asked about his experience with observational

studies, Dr. Banks cited several papers and a book on the

subject. (Id. at 135.) In sum, Dr. Banks is qualified to

analyze Dr. Lamberth’s surname analysis and observational study.

Second, the Government argues that Dr. Banks lacks the

qualifications necessary to critique Dr. MacDonald’s statistical

analysis because Dr. Banks is not a criminologist. (Doc. 115 at

18–21; Doc. 153 at 90–91.) The Government’s argument is

unpersuasive. Without belaboring the obvious, Dr. Banks is a

well-qualified statistician.

During his career as a

statistician, he has worked with the Fatality Analysis Reporting

System — a law enforcement dataset. (Doc. 153 at 81–82.) At

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trial, Dr. Banks provided statistical and mathematical opinions

on Dr. MacDonald’s study.

He offered critiques of Dr.

MacDonald’s studies, including the use of a linear regression

analysis (id. at 128–29); the methods by which Dr. MacDonald

reached his statistical conclusions regarding hit rates (id. at

125–26); Dr. MacDonald’s performance of a specific statistical

test (id. at 130–31); and the use of variable controls in Dr.

MacDonald’s post-stop outcome analyses (id. at 129–30). Dr.

Banks is undoubtedly qualified to offer those opinions on the

statistical methods of the Government’s experts.

2. The Admissibility of Dr. Banks’ Testimony

The Government also contends that Dr. Banks’ testimony on

ACSO’s traffic stops, checkpoint stops, checkpoint arrests, and

checkpoint placement is inadmissible. (Doc. 115 at 3–16; Doc.

158 at 110–15.)

As noted earlier, Rule 702 imposes a “gatekeeping

obligation” on trial judges to “ensure that any and all

scientific testimony or evidence admitted is not only relevant,

but reliable.” Kumho Tire Co., 526 U.S. at 147 (quoting

Daubert, 509 U.S. at 589). The same factors addressed in

connection with the analysis of Dr. Lamberth’s testimony apply

here. As the proponent of the evidence, Sheriff Johnson bears

the burden of establishing the admissibility of Dr. Banks’

expert testimony by “a preponderance of proof.” See Cooper, 259

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F.3d at 199. Applying these factors and for the reasons noted below, the court finds Dr. Banks’ expert testimony admissible.
a. Dr. Banks’ Study of ACSO Traffic Stops First, the Government argues that Dr. Banks’ analysis of ACSO’s traffic stops lacks reliability. The contention is based on a twofold argument: (1) Dr. Banks used unadjusted Census data rather than “risk adjusted” data as a benchmark; and (2) Dr. Banks failed to account for county differences when making comparisons across counties. (Doc. 115 at 3–10; Doc. 158 at 112–13.) Neither argument is persuasive, and the court finds the analysis admissible. As to Dr. Banks’ use of unadjusted Census data, the Government’s reliability contention misunderstands the purpose for which Sheriff Johnson offered Dr. Banks’ traffic stop study as well as the study’s use of Census data. In his traffic stop analysis, Dr. Banks compared, across several North Carolina counties, the ratios of traffic stops in each county with that county’s unadjusted Census data as to Hispanics and nonHispanics.69 His use of unadjusted Census data in this fashion was not to determine a benchmark by which to assess whether ACSO

69 As noted earlier in the court’s findings of fact, Census adjustments

are changes to the U.S. Census’ population estimates meant to improve

the accuracy of U.S. Census estimates.

(Doc. 153 at 102.)

Adjustments account for population characteristics like literacy rates

and migrant worker patterns. (Id. at 103–04.) “Unadjusted” Census

data is a set of population estimates without any adjustments.

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disparately stopped Hispanics. Cf. Chavez, 251 F.3d at 640–45 (examining unadjusted Census data as an actual benchmark to prove discriminatory effect of policing under the Fourteenth Amendment). Rather, he used the unadjusted Census data as a baseline denominator in a case-control study — a common methodology in academic literature — to compare the relative difference between each jurisdiction. (Doc. 153 at 152–57.) His testimony was offered to cast doubt on the Government’s allegations of discrimination by noting similarities and differences in stop rates across counties.
Second, the Government charges that Dr. Banks failed to “account for any differences among the selected counties to ensure their comparability to Alamance.” (Doc. 158 at 113.) Dr. Banks acknowledged that unadjusted Census data somewhat imprecisely gauged population totals. (Doc. 153 at 105.) However, he explained that his analysis “did not require that the actual census count be correct. It only required that the inaccuracy in the census count for Alamance County be about the same as the inaccuracy of the census count for [the other counties].” (Id. at 105–06, 198.) Based on his experience working with U.S. Census data and its adjustments, Dr. Banks testified that he was aware that, through “pooling information” on Hispanic population figures, the U.S. Census makes the same or similar adjustments to all population estimates in nearby
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counties. (Id. at 148.) Consequently, any lack of adjustment caused nearly identical inaccuracies across the counties in his study. (Id. at 148, 198–99.) Further, he testified, there was no set of adjustments a statistician could make to the Census data. (Id. at 105.) The dominant factor in his analysis is whether a motorist operated his vehicle in a safe way, yet there was no way to adjust for driving behavior. (Id. at 143–45.) So, performing other “minor” adjustments would have been “misinformative.” (Id. at 143–45 (noting that “it is perilous to adjust for second-order effects when you have first-order effects that are outstanding”).)70 Thus, because the unadjusted Census data was not used here as a benchmark but was rather kept constant across all other jurisdictions compared, the court accepts its use for that purpose.
b. Dr. Banks’ Analysis of ACSO Checkpoint Stops
The Government next maintains that Dr. Banks’ study of ACSO’s checkpoint stops suffers from reliability issues. Here, too, the Government challenges Dr. Banks’ use of unadjusted Census data to make comparisons across counties. For the sake of brevity, the court will not repeat its previous analysis and,
70 Dr. Banks found that 9.92% of the commuting miles in Alamance County were driven by Hispanics — a figure “consistent” with the unadjusted population estimate for the County that he used. (Id. at 106–07, 205.) Of course, it is unlikely that all Hispanics are of driving age.
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for the reasons stated above, finds the Government’s challenge equally unpersuasive.
The Government also challenges Dr. Banks’ explanations for why his finding that 36% of those stopped at ACSO checkpoints were Hispanic (id. at 99, 106) is not necessarily evidence of discrimination. (Doc. 115 at 10–12; Doc. 158 at 110–12.) In addressing the 36% figure, Dr. Banks cited literature supporting one of his possible explanations. (Doc. 153 at 99, 110–11.) Generally, the Government argues that two of Dr. Banks’ proffered explanations lack evidentiary support in the record. The Government’s argument, however, is directed toward the weight and persuasiveness of Dr. Banks’ explanations rather than their admissibility. See In re Prempro Prods. Liab. Litig., No. 4:03CV1507-WRW, 2008 WL 3285183, at *1 (E.D. Ark. Aug. 7, 2008) (observing that expert’s reliance on certain studies goes to the weight of the evidence rather than its admissibility); Atkinson Warehousing & Distrib., Inc. v. Ecolab, Inc., 99 F. Supp. 2d 665, 670 (D. Md. 2000) (“If the jury finds that the facts upon which a particular expert relied are not sufficient to support the opinion or that the facts relied upon are erroneous, the jury may reject the opinion. If the jury finds that the reasons supporting the opinion of a particular expert are sound and that the facts relied upon do support such opinion, then the jury may give weight to the opinion and consider it in reaching its
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verdict.”); Kenneda v. United States, 815 F. Supp. 926, 936 (S.D.W. Va. 1993) (“Any weakness in the factual underpinnings of [the expert’s] opinion go to the weight and credibility of his testimony, not to its admissibility.” (quoting S. Cent. Petroleum, Inc. v. Long Bros. Oil Co., 974 F.2d 1015, 1019 (8th Cir. 1992))). Thus, as with the traffic stop study, Dr. Banks’ checkpoint analysis is sufficiently reliable to be admissible under Rule 702.
c. Dr. Banks’ Study of ACSO Checkpoint Arrests
The Government also challenges the reliability of Dr. Banks’ study of ACSO’s checkpoint arrests. Dr. Banks analyzed the outcomes from checkpoint stops for 10% of the checkpoints conducted by ACSO between 2009 and 2012. (Doc. 153 at 112.) The Government argues that Dr. Banks’ analysis of 10% of checkpoints “is less probative than Dr. MacDonald’s analysis of all arrests from checkpoints.”71 (Doc. 158 at 114.) The Government also cites Federal Rule of Evidence 702(b) which allows an expert to provide opinion testimony if that testimony “is based on sufficient facts or data.” While the Government’s point is well-taken, this argument again addresses the weight rather than the reliability of Dr. Banks’ arrest study. See
71 Technically, Dr. MacDonald testified that he examined all arrests and controlled for the stop reason, which presumably included checkpoints. (Doc. 149 at 23, 38.)
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Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 401 F.3d 901,

915–16 (8th Cir. 2005) (holding that argument concerning

statistician’s sample size goes toward the weight of the

testimony “not to its evidentiary admissibility”).

The

Government does not contend that Dr. Banks’ study is

statistically or mathematically unreliable. Dr. Banks himself

testified that the 10% sample “was adequate” for statistical

purposes. (Doc. 153 at 113.) Therefore, the Government’s

criticisms of Dr. Banks’ arrest study will be considered as to

the weight, not the admissibility, of Dr. Banks’ testimony on

this point.

d. Dr. Banks’ Permutation Test

The Government finally argues that the permutation test

that Dr. Banks performed analyzing ACSO’s checkpoint placement

is unreliable. The Government argues that Dr. Banks assumes

that “the checkpoint locations actually used by ACSO constitute

the universe of all possible checkpoint locations.”72 (Doc. 158

at 115; see also Doc. 115 at 15–16; Doc. 153 at 158–63.) As a

72 In its original motion to this court (Doc. 115), the Government also argued that another of the permutation test’s assumptions — that the checkpoint locations were chosen independently of each other — rendered the study unreliable. (Doc. 115 at 16 (citing Doc. 86).) The Government elicited no testimony on this assumption on crossexamination at trial and made no mention of the assumption in its post-trial filing. At trial, Dr. Banks stated that this assumption was a “weak” one and did not change the result of his analysis. (Doc. 153 at 98–99.) The Government offers the court no persuasive reason to conclude that the assumption on the independence of checkpoint selection renders the permutation study unreliable.

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result, the Government continues, Dr. Banks’ test is

“meaningless” and “merely shuffles the timing of checkpoint

locations and does not provide information about the proximity

of checkpoints to Latino neighborhoods.” (Doc. 115 at 14–15;

Doc 158 at 114–15.)

To be sure, Dr. Banks acknowledged the assumptions he made

in his permutation study. (Doc. 153 at 97–99.) Yet, the

Government provided no evidence of other available sites to

contradict Dr. Banks’ methodological assumption that the

checkpoint data represented all possible checkpoint sites in the

County.

In fact, ACSO’s evidence demonstrated that its

checkpoint locations must meet certain safety and logistical

standards, limiting “the universe” of permissible locations.

The court accepts the 305 sites used in the permutation test —

every location at which ACSO conducted a checkpoint in the past

four years — as a reasonable reflection of available sites in

the County. Dr. Banks’ analysis using those 305 sites does not

render his study unreliable and thus inadmissible.

Importantly, the Government makes no argument that Dr.

Banks’ permutation test is statistically unreliable. Rather,

the Government contends that his study is “meaningless” and of

little probative value. (Doc. 115 at 14–15; Doc. 158 at 114–

15.)

Those arguments concern the relative import and

persuasiveness of Dr. Banks’ study rather than its admissibility

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as a matter of statistical science. See United States v. Cavely, 318 F.3d 987, 997–98 (10th Cir. 2003); Covic v. Berk, No. 11-2571-STA-DKV, 2014 WL 4546806, at *4 (W.D. Tenn. Sept. 12, 2014); Wilspec Technologies, Inc. v. Dunan Holding Grp. Co., No. CIV-06-818-L, 2008 WL 7254328, at *1 (W.D. Okla. June 20, 2008). Thus, the Government’s motion to strike Dr. Banks’ permutation test as unreliable within the meaning of Rule 702 is denied.
C. Motion for Adverse Inference Prior to trial, the Government moved the court to draw an adverse inference against Sheriff Johnson based on alleged spoliation of evidence. (See Doc. 131.) Sheriff Johnson responded (Doc. 139), and the Government replied (Doc. 145). On August 8, 2014, the court heard argument on the Government’s motion and took it under advisement. (Doc. 156 at 51–52.) At the close of evidence, noting that the motion was still outstanding, the court made no final ruling. (Doc. 155 at 44.) In its post-trial filing, the Government renews its request for an adverse inference (Doc. 158 at 121 & n.31), and Sheriff Johnson argues that the motion be denied (Doc. 157 at 16–20). For the reasons set forth below, the Government’s motion for an adverse inference will be denied. The Government contends that on June 28, 2011, before the filing of the present action, a former ACSO employee called an
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attorney for the Government and informed the attorney that,

around June 15, 2011, Sheriff Johnson had directed deputies at a

checkpoint in Green Level to “arrest any ‘Mexicans’ who did not

have driver’s licenses.”

(Doc. 131-2 ¶¶ 4–5.)

Whoever

allegedly heard this alleged statement never testified, and no

evidence regarding it was presented at trial.73 The former

employee was also said to have informed the Government’s

attorney that Sheriff Johnson gave the alleged order via ACSO’s

central communications system (“C-COMM”) and that communications

on C-COMM were retained for only a short time period. (Id.

¶ 6.) Without a request for preservation, the recordings remain

in the system for one year. (Doc. 156 at 34.)

The Government attorney sent a letter by mail and email

dated June 30, 2011, to Clyde Albright, the Alamance County

Attorney. (Doc. 131-3 at 2; Doc. 156 at 38–39.) Up until that

time, Albright was counsel of record for the County and Sheriff

Johnson in the DOJ’s then-pending declaratory judgment lawsuit

seeking unfettered access to ACSO deputies as part of the DOJ’s

investigation of discriminatory policing that preceded the

present action. See United States v. Alamance Cnty., No. 1:11-

cv-507 (M.D.N.C.). The letter requested that Albright preserve

73 The Government attempted to offer Deputy Randleman’s inadmissible hearsay testimony that he had heard rumors of such a statement. (Doc. 149 at 194.)
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all communications over the C-COMM system during the week of June 12–18, 2011. (Doc. 131-3 at 2; Doc. 156 at 38–39.) The letter further stated that the communications “may contain information relevant to” the Government’s investigation. (Doc. 131-3 at 2.) At 12:46 p.m. that same day, however, S.C. Kitchen — ACSO’s current attorney in this case — served a notice of appearance for ACSO in the declaratory judgment action, and at 2:11 p.m., Albright filed a notice of appearance on behalf of Alamance County. (Docs. 139-1; 139-2 at 1; 139-3; 156 at 38.) On July 5, 2011, Kitchen filed a notice of appearance in that same action on behalf of Sheriff Johnson in his official capacity. (Doc. 139-4.) The entry of separate counsel for the County appears to have been a result of (1) the Government’s litigation position that it was entitled to interview ACSO deputies without ACSO or County counsel being present, and (2) the fact that, under North Carolina law, ACSO is a separate entity from the County.
On July 15, 2011, Kitchen explained to the Government attorney that he was appearing in order to represent the ACSO deputies during the DOJ’s investigation. (Doc. 139-5.) The Government attorney acknowledged that, after the appearances by counsel, Kitchen — not Albright — represented Sheriff Johnson and ACSO, but it disputed Kitchen’s authority to appear during interviews of deputies as their individual counsel. (Id.) On
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July 20, 2011, the Government repeated its preservation request and included Kitchen on the email. (Doc. 131-5.)
The C-COMM system used by ACSO is under the control of Alamance County — not ACSO. (Doc. 156 at 41–42.) Employees controlling the system work for Alamance County — not ACSO. (Id. at 42.) ACSO employees have neither the knowledge nor ability to preserve C-COMM recordings. (Id. at 41.)
Thus, after receiving the June 30 email, Albright, as the Alamance County Attorney, sought to have the requested C-COMM recordings preserved. (Id. at 39.) He testified that he met with the C-COMM director, Dexter Bower, and Paula Crotts (the same individual involved in the previously mentioned checkpoint), informing them of the Government’s request.74 (Id. at 35, 39.) Bower and Crotts indicated they would keep the recordings. (Id. at 39.) On July 6, 2011, Crotts sent an email (with the subject “June 12-June 18 2011 ACSO CFS”) to Albright with a 240-page computer-assisted dispatch report. (Id. at 39– 40; see also Doc. 139-7.) Albright further testified that, after informing Bower and Crotts that the Government wanted the actual recordings and not the dispatch report, he believed that
74 Crotts has no recollection of this meeting but does not deny that it occurred. (Doc. 156 at 37.) Her subsequent July 6, 2011 email (Doc. 139-7) is strong evidence that Albright’s account is correct.
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the recordings would be preserved.75

(Doc. 156 at 40.)

According to Albright, he had no reason to believe the

recordings were not preserved until 2013. (Id. at 40–41.) In

April 2013, Albright asked Crotts for the C-COMM recordings from

June 12–18, 2011, but, by that time, the recordings were no

longer in the system. (Id. at 35, 40–41.)

The Government argues that, because the C-COMM recordings

were lost, it is entitled to an adverse inference that a

particular “recording — had it been preserved — would have

contained evidence of Defendant’s discriminatory intent,”

specifically that “Sheriff Johnson stated ‘If he’s Hispanic,

take him to jail.’” (Doc. 158 at 121 & n.31; see also Doc.

131.) The Government, however, has failed to demonstrate that

the loss of the C-COMM recording merits an adverse inference

against Sheriff Johnson.

“Spoliation refers to the destruction or material

alteration of evidence or to the failure to preserve property

for another’s use as evidence in pending or reasonably

foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271

F.3d 583, 590 (4th Cir. 2001). If a finding of evidence

spoliation is made, “the trial court has broad discretion to

permit a jury to draw adverse inferences from a party’s failure

75 Crotts again said she has no recollection of meeting with Albright but does not deny that she did. (Doc. 156 at 37.)

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to present evidence, the loss of evidence, or the destruction of evidence.” Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995). Application of an adverse inference requires a showing that a party (1) knew that certain evidence was relevant to some issue at trial; (2) had that evidence within its control; and (3) caused the loss of the evidence through its willful conduct. See Vulcan Materials Co. v. Massiah, 645 F.3d 249, 259–60 (4th Cir. 2011); Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 526 (D. Md. 2010) (“[A]n adverse inference instruction makes little logical sense if given as a sanction for negligent breach of the duty to preserve, because the inference that a party failed to preserve evidence because it believed that the evidence was harmful to its case does not flow from mere negligence.”).
Sheriff Johnson did know that the requested information was relevant. In its June 30 letter to Albright, the Government clearly states that the recordings “may contain information relevant to” the Government’s investigation. (Doc. 131-3 at 2.) Moreover, the Government repeated this request in its July 20 email, and Kitchen — acting as attorney for Sheriff Johnson — received a copy of that request. (Doc. 131-5 at 2.) Although counsel for Sheriff Johnson claims he did not know why the recordings were relevant, he did know that the Government believed they were. That is sufficient to trigger a duty to
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preserve. See Silvestri, 271 F.3d at 591 (observing that the duty to preserve arises “not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation”).
That being said, the Government has not shown that Sheriff Johnson had control of the recordings or that the loss of the recordings was the result of willful conduct. First, Sheriff Johnson had no control over the recordings because the C-COMM system operates under the direction and control of Alamance County and not ACSO. (Doc. 156 at 41–42.) Sheriff Johnson and Alamance County are different legal entities. Neither he nor his deputies is an employee or agent of the county. See Capers v. Durham Cnty. Sheriff Dep’t, 1:07cv825 (M.D.N.C. July 17, 2009) (Doc. 85), adopting recommendation, 2009 WL 798924, at *6 (M.D.N.C. March 23, 2009); McLaughlin v. Bailey, 771 S.E.2d 570, 576 (N.C. Ct. App. 2015); Clark, 450 S.E.2d at 749. Therefore, because the C-COMM system and its recordings are under the control of Alamance County, Sheriff Johnson did not have control over the C-COMM recordings and will not be held responsible for their loss. See Vulcan, 645 F.3d at 260; Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450–51 (4th Cir. 2004) (concluding that a party that “did not have control of” evidence could not be blamed for its loss).
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In addition, no evidence suggests that the loss of the

recordings was the result of either willful destruction or loss

by Sheriff Johnson. See Turner v. United States, 736 F.3d 274,

282 (4th Cir. 2013) (“[S]poliation does not result merely from

the ‘negligent loss or destruction of evidence.’” (quoting

Vodusek, 71 F.3d at 156)). If any misconduct occurred, it was

by C-COMM staff and Alamance County, which operate outside of

Sheriff Johnson’s control. At best, this leaves the Government

with the assertion that Kitchen somehow conspired to allow the

recordings to be destroyed. But, there is no evidence of that.

While there remains a factual dispute between County Attorney

Albright and County/C-COMM employee Crotts about the nature of

Albright’s preservation requests, the presence of Crotts’ July

6, 2011 email to Albright is strong evidence that he made the

preservation request.

And Albright’s testimony that he

forwarded Crotts’ responsive email and dispatch attachments to

Kitchen (Doc. 156 at 39–40) is evidence that Kitchen — as

attorney for Sheriff Johnson — had a reasonable belief that

Albright had made the necessary requests to C-COMM to preserve

the recordings. Thus, the lack of willful conduct evidence also

precludes an adverse inference against Sheriff Johnson, and the

motion will be denied.

D. Motion to Exclude Kenneth Evans’ Testimony

At trial, counsel for Sheriff Johnson moved to strike the

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testimony of former lieutenant Kenneth Evans based on an alleged violation of Rule 4.2 of North Carolina’s Professional Rules of Conduct. See L.R. 83.10e(b) (adopting North Carolina’s ethical rules). Rule 4.2 states,
During the representation of a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. In its post-trial filing, the Sheriff claims that Government counsel violated Rule 4.2 by speaking with Evans without the counsel for the Sheriff present. (See Doc. 147 at 65 (containing Evans’ testimony that he met with the Government prior to litigation)). For several reasons, Sheriff Johnson’s motion to strike Evans’ testimony will be denied. First, Sheriff Johnson argues that “the issue” of whether the Government could “interview deputies without the presence of the attorney for the Sheriff” has been “previously determined, and is therefore res judicata.” (Doc. 157 at 89.) In making this argument, Sheriff Johnson references the prior lawsuit by the DOJ seeking a declaratory judgment against Sheriff Johnson, ACSO, and Alamance County. (Id.) More specifically, that lawsuit sought a declaration that Rule 4.2 permitted DOJ’s attorneys to interview certain ACSO non-command staff and all former ACSO employees outside the presence of Defendants’
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counsel. United States v. Alamance Cnty., No. 1:11-cv-507 (M.D.N.C. June 23, 2011) (Doc. 1). After Alamance County moved to dismiss the Government’s complaint and the Government moved for summary judgment, the Government filed an unopposed motion to dismiss its action as moot. United States v. Alamance Cnty., No. 11-cv-507 (M.D.N.C. Sept. 18, 2012) (Doc. 51). This court entered an Order dismissing the action with prejudice. United States v. Alamance Cnty., No. 11-cv-507 (M.D.N.C. Sept. 18, 2012) (Doc. 53).
Sheriff Johnson, however, cites no authority explaining how this court’s Order granting the Government’s voluntary dismissal operates as res judicata in this case.76 See, e.g., Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009) (listing the basic requirements for res judicata).
Also, in addition to the absence of argument on the applicability of res judicata, Sheriff Johnson offers only the conclusion that the Government violated Rule 4.2 without citing any case law or legal rule explaining how the Government violated the rule. See, e.g., N.C. R. Prof’l Conduct 4.2, cmt.
76 Sheriff Johnson cites this court’s order dismissing his motion for judgment on the pleadings (Doc. 19), in which this court assumed, without deciding, that its prior Order granting the Government voluntary dismissal was a final judgment. (Id. at 7.) The court, however, did not hold that its prior order in the declaratory judgment action was a final judgment on the merits. (Id. at 6–9 (holding that, assuming that its prior order was a final judgment, that order did not bar § 14141 claims under the declaratory judgment exception).)
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9 (prohibiting communications with only certain employees within an organization); United States v. Joseph Binder Schweizer Emblem Co., 167 F. Supp. 2d 862, 866 (E.D.N.C. 2001) (holding, in a criminal case, that the federal government could meet with persons unrepresented by counsel pre-indictment because it was “authorized by law to do so”). Sheriff Johnson’s unsupported legal conclusions fail to comply with this court’s Local Rules. See Local Rule 7.2(a)(4) (requiring that briefs contain “all statutes, rules and authorities relied upon”). The court need not, and will not, devise arguments or scour case law to support a party’s legal conclusions. See Hayes v. Self-Help Credit Union, No. 1:13-CV-880, 2014 WL 4198412, at *2 (M.D.N.C. Aug. 22, 2014) (“It is not the role or the responsibility of the Court to undertake the legal research needed to support or rebut a perfunctory argument.”). Thus, Sheriff Johnson’s motion to strike Evans’ testimony will be denied.
Moreover, even assuming without deciding that counsel for the Government violated Rule 4.2, there is no evidence that the assumed violation prejudiced Sheriff Johnson at trial. See United States v. Quest Diagnostics Inc., 734 F.3d 154, 167 (2d Cir. 2013) (noting that the “relevant inquiry” for determining a remedy to an ethical violation is the “possibility of prejudice at trial” (quoting U.S. ex rel. Fair Lab. Practices Assocs. v. Quest Diagnostics Inc., No. 05 CIV. 5393, 2011 WL 1330542, at
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*11 (S.D.N.Y. Apr. 5, 2011) (internal quotation marks omitted))); McCallum v. CSX Transp., Inc., 149 F.R.D. 104, 113 (M.D.N.C. 1993) (“The nature and extent of prejudice suffered or likely to be suffered in the future by the other parties is also a relevant consideration. While the sports based aphorism ‘No harm; No foul’ cannot be wholly transplanted to matters involving ethical violations, the extent of harm cannot be ignored.”). Sheriff Johnson certainly points to none. There is also no evidence that Evans’ statements to the Government’s attorney were used at trial. Rather, Sheriff Johnson simply argues that a violation of Rule 4.2 occurred and that Evans’ testimony should therefore be struck. (See Doc. 157 at 89–90.) Thus, even if an ethical violation had occurred, the lack of any apparent harm or prejudice resulting from the allegedly unethical contact with Evans would similarly doom Sheriff Johnson’s motion to strike the lieutenant’s testimony. See Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489, 502 (7th Cir. 2013) (“[W]hen an ethical breach neither prejudices an attorney’s client nor undermines the integrity of the judicial proceedings, state bar authorities are generally better positioned to address the matter through disciplinary proceedings, rather than the courts through substantive sanction in the underlying lawsuit.”). Although the court denies the Sheriff’s motion, the Government’s pre-litigation contact with
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Evans can be considered as it would be with any other fact
witness in assessing the credibility and weight of the
testimony. E. 42 U.S.C. § 14141 Claims On the merits, the Government brings two claims under 42
U.S.C. § 14141. First, it contends that the evidence offered at
trial establishes that ACSO engaged in a “pattern or practice”
of Fourteenth Amendment violations. Second, it maintains that
ACSO committed a “pattern or practice” of Fourth Amendment
violations.
Section 14141 of Title 42 — titled “Cause of Action” —
reads in full:
(a) Unlawful conduct
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain
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appropriate equitable and declaratory relief to eliminate the pattern or practice.77 The statute does not define what constitutes a “pattern or practice” of constitutional rights deprivations. Both the Government and Sheriff Johnson provide only a single citation to the Supreme Court’s decision in Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977), an employment discrimination case under Title VII of the Civil Rights Act of 1964, as the interpretative source for § 14141’s “pattern or practice” requirement. (See Doc. 157 at 90; Doc. 158 at 82.) Section 14141’s legislative history similarly sheds no interpretive light on the “pattern or practice” standard. See Marshall Miller, Police Brutality, 17 Yale L. & Pol’y Rev. 149, 165–66 & n.109 (1998) (observing that “the direct legislative history of § 14141 is virtually non-existent”). That being said, the legislative history of § 14141’s predecessor bill, the Police Accountability Act of 1991 (“PAA”), H.R. 2972, 102nd Cong. (1991), offers some, albeit limited, assistance in interpreting § 14141. See H.R. 3371, 102d Cong. § 1202 (1991); H.R. Rep. No. 102-242, pt. 1 (1991). The predecessor bill contained language nearly identical to § 14141 and particularly the “pattern or practice” phrasing. See H.R.
77 The phrase “paragraph (1)” appears to be a textual error in the statute and should likely read “paragraph (a).”
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3371, 102d Cong. § 1202(a)(1) (1991). In a 1991 report on the PAA, the House Judiciary Committee (“the Committee”) included its interpretation of the “pattern or practice” expression. H.R. Rep. No. 102-242, pt. 1, at 137–39 (1991). It began by noting that “[t]he Justice Department currently lacks the authority to address systemic patterns or practices of police misconduct.” Id. at 137. The Committee then drew a parallel to the “pattern or practice authority” of the Attorney General “under eight civil rights statutes including those governing voting, housing, employment, education, public accommodations and access to public facilities.” Id. Another comparison was made to 42 U.S.C. § 1983, with the Committee observing, “The Act does not increase the responsibilities of police departments or impose any new standards of conduct on police officers. The standards of conduct under the Act are the same as those under the Constitution, presently enforced in damage actions under section 1983.” Id. at 138; see also id. (citing the Federal Government’s present inadequate ability to curb “patterns or practices such as the lack of training or the routine use of deadly techniques like chokeholds, or the absence of a monitoring and disciplinary system” as impetus for the bill); id. at 138–39 (citing two lawsuits against police departments “illustrat[ing] both the need for [the Attorney General’s] authority and how it will work”).
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Given the limited background provided by the Committee on a
bill other than § 14141, other judicial constructions of the phrase “pattern or practice” provide further guidance. The
parties have not identified any federal decision that has applied § 14141’s “pattern or practice” standard. The court has
found one recent decision applying § 14141’s standard on a motion for summary judgment, but that decision offers little interpretive guidance.78 See United States v. Town of Colorado
City, Ariz., No. 3:12-CV-8123-HRH, 2015 WL 3774315, at *4–6 (D. Ariz. June 17, 2015). The phrase “pattern or practice,”
however, is not a concept foreign to federal courts. Congress repeatedly uses the expression in federal statutes when
authorizing the Attorney General to bring suit. See, e.g., 42 U.S.C. § 2000e-6(a) (authorizing the Attorney General to pursue
injunctive relief in cases concerning a “pattern or practice” of employment discrimination); 42 U.S.C. § 3614(a) (authorizing the
Attorney General to bring civil action in cases involving a
“pattern or practice” of Fair Housing Act violations); 52 U.S.C. § 10101(e) (authorizing courts to find a “pattern or practice”
78 Also, in Nat’l Cong. for Puerto Rican Rights v. New York City, 75 F. Supp. 2d 154 (S.D.N.Y. 1999), the district court suggested an overlap between § 14141 and § 1983. Id. at 165–66. In that case, the court denied a request to stay a class action bringing § 1983 claims pending resolution of a DOJ investigation pursuant to § 14141. Id. Among other reasons for denying the stay request, the court observed that any legal rulings in the § 1983 class action would be res judicata and have collateral estoppel effect in any potential § 14141 litigation. Id.
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of voting rights deprivations). Two areas of law — employment discrimination and § 1983
litigation — prove particularly useful. First, as both parties urge, in the employment context the Supreme Court has observed, “[T]he ‘pattern or practice’ language . . . of Title VII . . . was not intended as a term of art, and the words reflect only their usual meaning.” Int’l Bhd. of Teamsters, 431 U.S. at 336 n.16. To demonstrate a “pattern or practice” claim under Title VII, the Government must “prove more than the mere occurrence of isolated . . . or sporadic discriminatory acts”; it must demonstrate that the acts were “standard operating procedure — the regular rather than the unusual practice.” Id. at 336; see also id. at 336 n.16 (“[A] pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature.” (quoting 110 Cong. Rec. 14,270 (1964))); Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 877–78 (1984) (concluding that an attempt to prove a “pattern or practice” claim “may fail even though discrimination against one or two individuals has been proved”); EEOC v. Am. Nat. Bank, 652 F.2d 1176, 1188 (4th Cir. 1981) (concluding that government’s “pattern or practice” burden may be met “by statistics alone, . . . or by a cumulation of evidence, including statistics, patterns, practices, general policies, or specific instances of
169

discrimination” (citations omitted)); Stastny v. S. Bell Tel. &

Tel. Co., 628 F.2d 267, 278 (4th Cir. 1980) (holding that a

“pattern or practice” of employment discrimination can be shown

through a “sufficient number of instances of similar

discriminatory treatment” or statistical data).

Legal

commentators also suggest that the definition of “pattern or

practice” supplied by employment law should persuasively guide

interpretations of § 14141. See Miller, supra, at 166–67, 169–

72; Eugene Kim, Vindicating Civil Rights Under 42 U.S.C.

§ 14141: Guidance from Procedures in Complex Litigation, 29

Hastings Const. L.Q. 767, 778–80 (2002).

Second, the Supreme Court has required “a pervasive

pattern,” “persistent and widespread discriminatory practices of

state officials,” or “systematic maladministration” to establish

a governmental “custom” of constitutional rights deprivations

under 42 U.S.C. § 1983. Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 685 n.45, 690–91 (1978); Rizzo v. Goode, 423 U.S. 362,

375–76 (1976) (reversing lower court’s findings of a pattern of

police misconduct); see also Owens v. Baltimore City State’s

Attorneys Office, 767 F.3d 379, 403 (4th Cir. 2014) (“Sporadic

or isolated violations of rights will not give rise to Monell

liability; only ‘widespread or flagrant’ violations will.”

(quoting Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir.

1987))). As other commentators have observed, the federal

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government’s inability to bring a § 1983 action appears to be a

motivating force behind § 14141’s enactment. See, e.g., Miller,

supra, at 166–69.

With this background in mind, the court turns to each of

the Government’s § 14141 claims.

1. Fourteenth Amendment Claim

The Government first alleges that ACSO violated § 14141 by

engaging in a pattern or practice of discriminatory law

enforcement directed against Hispanics in violation of the

Fourteenth Amendment.

The Fourteenth Amendment’s Equal

Protection Clause bars any state from “deny[ing] to any person

within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1. The Clause “is essentially a direction

that all persons similarly situated should be treated alike.”

City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S.

432, 439 (1985).

Proving an equal-protection claim involves a two-step

analysis. First, the Government must demonstrate the unequal

treatment of a person or group of persons as compared to

similarly situated individuals. See id.; Morrison v. Garraghty,

239 F.3d 648, 654 (4th Cir. 2001). According to the Fourth

Circuit, unequal treatment constituting an equal protection

violation “occurs in one of two ways: (1) when the government

explicitly classifies people based on race, or (2) when a law is

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facially neutral, but its administration or enforcement

disproportionately affects one class of persons over another and

a discriminatory intent or animus is shown.” Monroe v. City of

Charlottesville, 579 F.3d 380, 388 (4th Cir. 2009). Express

classifications are those that are “explicitly stated on the

face of a statute or in the reasons given for its administration

or enforcement.” Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d

810, 819 (4th Cir. 1995).

Suspect facially neutral

classifications are simply those that are not explicitly stated

but are nevertheless applied. Id. at 818–19.

Second, this court must “determine whether the disparity in

treatment can be justified under the requisite level of

scrutiny.” Morrison, 239 F.3d at 654. “The level of scrutiny

depends on the type of classification.” Sansotta v. Town of

Nags Head, 724 F.3d 533, 542 (4th Cir. 2013).

Here, the Government contends that ACSO’s law enforcement

policies reflect both an express classification and a facially

neutral, but nevertheless discriminatory, classification. (See

Doc. 158 at 84.) The Government argues that ACSO bases those

classifications on ethnicity.79 (Id. at 83–84.) If proven, any

unequal treatment based on ethnicity is subject to strict

79 The Government does not argue that any ACSO policy or conduct was irrational, if not proven to be based on a suspect or quasi-suspect classification. See Sansotta, 724 F.3d at 542–43.
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scrutiny. See Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2417 (2013); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978) (“Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.”); see also City of Cleburne, 473 U.S. at 440 (applying strict scrutiny to unequal treatment based on national origin). To survive strict scrutiny, a classification based on ethnicity “must (1) be narrowly tailored and (2) further a compelling government interest.” Monroe, 579 F.3d at 390.
a. Express Classification The Government first claims that ACSO’s law enforcement practices and policies expressly classify individuals based on their ethnicity. (See Doc. 158 at 84.) Laws, policies, and practices “that explicitly distinguish between individuals” on the basis of ethnicity “fall within the core of” the Equal Protection Clause. Shaw v. Reno, 509 U.S. 630, 642 (1993). While oral statements of government officials have rarely been held to be express classifications, one court has held that such statements expressly classify but “only . . . at the managerial level, when commanders and supervisors acting in accordance with the policy instruct officers to target racially defined groups for stops.” Floyd, 959 F. Supp. 2d at 663 n.768. In support of its contention, the Government argues that two sets of facts demonstrate a pattern or practice of express
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classifications:80 (1) Sheriff Johnson’s alleged order(s) to “arrest Hispanics” during an ACSO meeting; and (2) his alleged direction to “arrest Hispanics” at a checkpoint near a predominantly Hispanic mobile home park.81 (Doc. 158 at 86–87.)
To be sure, the record reveals no evidence that ACSO had a policy — written or unwritten — that expressly classified Hispanics. The Government points to no ACSO document containing any policy, and no witness testified to any. Rather, the

80 The Government points to two other incidents — both involving ACSO’s

alleged use of “discriminatory criteria to select Alamance County

employees for investigation” — as demonstrating a purported express

classification.

(Doc. 158 at 88 (citing Deputy Randleman’s

investigation of the driver who hit Commissioner Vaughan and the

investigation of a Hispanic library employee requested by another

Commissioner).) To be sure, a law enforcement agency cannot be

protected from complicity in another’s discrimination simply by

claiming it was requested or directed to do so. But the two

supporting examples provided by the Government show that individuals

outside of ACSO not only initiated those investigations but identified

the alleged suspects as Hispanic. The Government fails to provide any

citation or explanation for why those incidents are express

classifications under the Fourteenth Amendment. See Monroe, 579 F.3d

at 388–89 (holding that use of ethnic information — originating

outside the police department — in description of crime’s perpetrator

is not an express classification); Brown v. City of Oneonta, N.Y., 221

F.3d 329, 337–38 (2d Cir. 2000) (finding no express racial

classification where police used race in description of suspect).

81 Although not cited by the Government as evidence of an express classification, the court notes one other alleged incident: the Government offered Corporal Nicholson, who testified that Sheriff Johnson once said, “Go get the Mexicans” and “arrest every chili shitter in the park.” (Doc. 147 at 77, 81.) As stated in its Findings of Fact, the court questions the veracity of this allegation, as Sheriff Johnson and the other officer attending the meeting deny those statements. Moreover, the persuasive evidence is that Sheriff Johnson stated “Go get those Mexicans” or “the Mexicans” in reference to a specific Mexican gang then under ACSO investigation for criminal activity. Corporal Nicholson also testified that he made no stops or arrests as a result of the alleged order. (Doc. 147 at 89.)

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Government relies on testimony as to Sheriff Johnson’s verbal

directives to arrest Hispanics on these limited occasions and

evidence that all deputies are duty-bound to carry out all of

the Sheriff’s orders. It is a weak claim, however. There was

no evidence that even a single person — including those claiming

they heard such an alleged order — implemented or executed any

such directive.82

This total lack of implementation,

particularly when viewed with the failure to provide any context

for such statements, casts serious doubt on both the veracity of

the Government’s witnesses’ characterization of them and the

claim that they rise to the level of a practice or policy. Only

82 The parties have not addressed the extent to which an express classification must be implemented in order to create a Fourteenth Amendment violation. The Supreme Court and lower courts have suggested ethnic classifications may trigger strict scrutiny only when official state action subjects persons to that classification or when the government actor utilizes that classification. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) (“[A]ny person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.” (emphasis added)); Wayte v. United States, 470 U.S. 598, 610 n.10 (1985) (concluding that “[a] showing of discriminatory intent is not necessary when the equal protection claim is based on an overtly discriminatory classification,” suggesting that a showing of discriminatory effect is still required); Sylvia Dev. Corp., 48 F.3d at 819 (stating that strict scrutiny applies when “the classification utilized is explicitly stated”); see also Monell, 436 U.S. at 694 (“[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”). But see Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 545 (3d Cir. 2011) (“A statute or policy utilizes a ‘racial classification’ when, on its face, it explicitly distinguishes between people on the basis of some protected category.” (quoting Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999))).

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a very few officers claimed to have heard such a statement. And, had any officer regarded such a statement to be a directive, like those from the Sheriff that he or she was dutybound to obey, as the Government suggests, it is odd that not a single officer or employee ever complained about it, challenged it, or was concerned that he or she would risk any adverse action at all for failing to follow it. Whatever Sheriff Johnson may have said, it is unlikely that it was as portrayed, singling out Hispanics expressly.
While not controlling, it is notable that the Government’s express classification evidence falls far short of that found sufficient in two recent, analogous cases. In Floyd v. New York City, the district court found that the New York Police Department’s stated policy that “targeted young blacks and Hispanics for stops” explicitly classified on the basis of race and ethnicity, citing testimony by police officers that they targeted “the right people” and the chief of police admitted that the “right people” are “young men of color in their late teens, early 20s.” 959 F. Supp. 2d at 602–03 & n.280, 663 & n.767. Similarly, in Melendres v. Arpaio, 989 F. Supp. 2d. 822 (D. Ariz. 2013), aff’d in part, vacated in part, 784 F.3d 1254 (9th Cir. 2015), the district court held that an express classification existed where a police department’s written policies “expressly permitted officers to make racial
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classifications” as a factor in developing probable cause or reasonable suspicion. Id. at 846–47 (noting that ICE training manual “expressly allows for consideration of race” by permitting consideration of “apparent Mexican ancestry” as relevant to reasonable suspicion).
What little context there is for the statements in this case fails to support the Government’s characterization. Officer Lloyd testified that, while assisting at a checkpoint at the predominantly Hispanic Rocky Top mobile home park, thenChief Deputy McPherson initially reported that Sheriff Johnson had said that any Hispanics driving without a driver’s license or driving with a revoked license should be arrested.83 (Doc. 147 at 156–57.) However, after several officers, including Officer Lloyd, sought some clarification, Chief Deputy McPherson spoke again with Sheriff Johnson and then reported back that the Sheriff “didn’t mean [to arrest] just Hispanics” but rather also “Hispanics, whites, and blacks.” (Doc. 147 at 158–59.)84 While the clarification was inartful at best (there being no need to refer to race at all), it demonstrates that the directive was either misstated or misunderstood and was meant to apply to everyone. This is consistent with Officer Lloyd’s testimony
83 Chief Deputy McPherson died in 2012. (Doc. 154 at 41.) 84 The Government never questioned Sheriff Johnson about this incident.
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that he never understood Sheriff Johnson to give him an order on

how to perform his traffic duties. (Id. at 150–51.)

The Government’s theory also requires a strained

interpretation of other trial evidence. The Government contends

that Sheriff Johnson made these statements because he wanted to

move Hispanics through the 287(g) program and reap the financial

benefit from housing federal detainees. But, as noted, the

Government offered no evidence as to how many (or few) Hispanics

arrested by ACSO were booked into the ACDC and subjected to

287(g) questioning — figures almost certainly available to the

Government.85 There was evidence, however, that in reality a

relatively low number of ACDC detainees were processed by ACSO’s

287(g) officers — approximately one detainee per week, and most

of those housed in the ACDC came from other counties and ICE.

(Doc. 152 at 163–64; Doc. 154 at 22–23.) Thus, ACSO officers

contributed infrequently to the number of ICE detainees housed

in the ACDC, undermining the Government’s suggestion that ACSO

significantly contributed arrestees to ACDC’s ICE detainee

population to receive financial benefits.

Moreover, the

Government’s statistical evidence, on which it relies very

heavily, contradicts its theory of the case — whether

85 To be sure, there was no evidence that ACSO ever held any arrestee solely for the purpose of determining his or her immigration status.
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articulated as being that the Sheriff directed that all Hispanics be arrested, or only those without licenses and identification.86 Dr. MacDonald’s testimony made clear that, in 87.9% of the cases, the opposite occurred: 55.8% of Hispanics stopped were merely issued a citation; 22.3% were given only a verbal warning; 5.0% were given only a written warning, and no action at all was taken as to 4.8%. (Doc. 149 at 21, 29–37.)
Finally, Sheriff Johnson also denies that he ever gave any such order either at a staff meeting or checkpoint, and he denies even having been present at the checkpoint testified to by Officers Lloyd, Perry, and Evans. The Sheriff’s testimony was corroborated by that of nine ACSO employees — some of whom were offered by the Government — who also testified that they had never heard him give an instruction to arrest Hispanics at an ACSO meeting. As to the alleged statement at the checkpoint, Chief Deputy Britt stated that ACSO only conducted an informational checkpoint following a series of break-ins in the area where Sheriff Johnson allegedly made the statement. No checkpoint data corroborating the Government’s witnesses’ testimony was presented. And, while the court relies on the quality of the evidence and not the number of witnesses on any
86 The Government never provided any evidence as to why anyone was arrested or cited, including whether or not they were able to provide identification, to substantiate the theory that Hispanics were arrested because they lacked identification.
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particular issue, it notes that each person testifying to having heard the statements carried some credibility burden, affecting how they attempted to characterize what they say they heard.
Thus, in light of this conflicting and limited evidence, the court is not persuaded that a directive classifying Hispanics existed, as the Government suggests.
But, beyond this difficulty is the Government’s failure to prove that the alleged statements, even assuming they were made, would establish a “pattern or practice” of Fourteenth Amendment violations as required by § 14141.
To demonstrate a pattern or practice, the Government must “prove more than the mere occurrence of isolated . . . or sporadic discriminatory acts.” Int’l Bhd. of Teamsters, 431 U.S. at 336 (concluding that discriminatory actions must have been the “standard operating procedure [—] the regular rather than the unusual practice”); see also Monell, 436 U.S. at 690–91 (requiring proof of “persistent and widespread discriminatory practices of state officials”). This inquiry is a fact-specific one. See United States v. Cochran, 39 F. Supp. 3d 719, 730–31 (E.D.N.C. Aug. 13, 2014).
Here, the Government cites two or three alleged instances approximately five to seven years ago, each with little context for Sheriff Johnson’s alleged oral instruction to arrest Hispanics and with no individual being shown to have carried it
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out or have been subjected to it. That evidence is insufficient to establish a pattern or practice under prevailing case law. See Cooper, 467 U.S. at 878–79 (concluding that “the statistical evidence, buttressed by expert testimony and anecdotal evidence by three individual[s] . . . was not sufficient to support the finding of a pattern of . . . discrimination”); Ste. Marie v. E. R.R. Ass’n, 650 F.2d 395, 405 (2d Cir. 1981) (holding that seven acts of discrimination, consisting of three denials of promotions, two failures to promote, and two rejections of applications, could not, without more, support a finding of a pattern or practice); cf. Int’l Bhd. of Teamsters, 431 U.S. at 337–39 (observing the bolstering of statistical evidence of a pattern or practice with “over 40 specific instances of discrimination” demonstrated pattern or practice); Chisholm v. U.S. Postal Serv., 665 F.2d 482, 494–96 (4th Cir. 1981) (concluding that class action demonstrated claim of discrimination following anecdotal evidence from twenty employees in addition to statistical data). This is true even when taking into account the statistical and other evidence offered by the Government, as explained below.
Given all the evidence presented at trial and considering the totality of the circumstances, the Government therefore fails to demonstrate a pattern or practice of express, ethnic classifications in violation of the Fourteenth Amendment and
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§ 14141. b. Facially Neutral Classification
The Government alternatively argues that ACSO’s law enforcement practices and policies have a discriminatory effect on Hispanics and are motivated by discriminatory animus toward them. (Doc. 158 at 84, 89.) When challenging a facially neutral classification, a plaintiff must prove both the discriminatory effect of and discriminatory purpose behind that classification. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) (“[E]ven if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.”); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264– 68 (1977); Washington v. Davis, 426 U.S. 229, 238–42 (1976).
To demonstrate a Fourteenth Amendment claim, a plaintiff must demonstrate discriminatory effect by showing the unequal treatment of a person or persons as compared to other similarly situated individuals. See City of Cleburne, 473 U.S. at 439; Morrison, 239 F.3d at 654. When considering discriminatory effect in the context of selective law enforcement under the Fourteenth Amendment, courts generally rely on the Supreme Court’s decision in United States v. Armstrong, 517 U.S. 456 (1996). See, e.g., Farm Labor Org. Comm. v. Ohio State Highway
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Patrol, 308 F.3d 523, 533–34 (6th Cir. 2002) (obligating plaintiffs to demonstrate that “similarly situated individual[s]” received different treatment from them to prove selective enforcement claim); Chavez, 251 F.3d at 636; United States v. Dixon, 486 F. Supp. 2d 40, 44–47 (D.D.C. 2007).
In Armstrong, the Supreme Court addressed the evidence necessary to prove discriminatory effect for a claim of selective prosecution rather than selective law enforcement. 517 U.S. at 465–71. Attempting to obtain discovery, the Armstrong defendant had presented evidence that, “in every one” of twenty-four cocaine base cases closed by the public defender’s office, the defendant was black. Id. at 459. The appeals court found this evidence sufficient to permit the plaintiff to obtain discovery, concluding that, as a general rule, a defendant need not show that the government failed to prosecute individuals similarly situated to him. Id. at 469. The Supreme Court disagreed, rejecting the appeals court’s omission of the similarly situated requirement and finding instead that “[t]he requirements for a selective-prosecution claim draw on ‘ordinary equal protection standards.’” Id. at 465 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)). Applying these “ordinary equal protection standards,” the Supreme Court reiterated, “To establish a discriminatory effect in a race case, the claimant must show that similarly situated
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individuals of a different race were not prosecuted.” Id. In doing so, “[t]he Supreme Court made clear that the similarly situated requirement could not be discarded, reaffirming that the requirement of showing discriminatory effect is a long established requirement in [federal] jurisprudence.” Chavez, 251 F.3d at 638.
The Fourth Circuit appears to align with those courts looking to Armstrong for interpretative guidance, as it relied on Armstrong to deny a defendant’s claim of selective law enforcement (as opposed to selective prosecution). See United States v. Bullock, 94 F.3d 896, 899 (4th Cir. 1996) (noting Armstrong’s “rigorous standard for proving such a violation”); see also Farm Labor Org. Comm., 308 F.3d at 533–34; Chavez, 251 F.3d at 636; Dixon, 486 F. Supp. 2d at 44–45. The Government offers no argument that Armstrong or the Equal Protection Clause’s similarly situated requirement do not apply in this case, and, in fact, both the Government’s complaint and brief acknowledge and apply the “similarly situated” requirement.87 (See Doc. 1 ¶¶ 4–5, 34–36, 38; Doc. 158 at 81, 117.) The court concludes, therefore, that Armstrong is appropriate and persuasive guidance for the consideration of the selective law
87 The Government also offers no argument that Armstrong or the Fourteenth Amendment’s similarly situated requirement apply any differently in the context of a selective law enforcement claim.
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enforcement claims raised here.

In this case, the Government aims to prove discriminatory

effect largely by relying on statistical evidence of disparities

in ACSO’s law enforcement practices.88

Courts analyzing

Armstrong in the context of selective law enforcement claims,

however, differ as to whether a plaintiff must identify

particular similarly situated individuals or can instead use

statistical evidence of aggregated similarly situated

individuals to show the discriminatory effect of selective law

enforcement. Compare United States v. Viezca, 555 F. Supp. 2d

1254, 1267 & n.7 (M.D. Ala. 2008) (interpreting the Eleventh

Circuit to require identification of specific “similarly

situated individuals in selective traffic enforcement claims”),

aff’d sub nom. United States v. Ubaldo-Viezca, 398 F. App’x 573

88 The Government contends that its statistical evidence, alone, can establish discriminatory purpose as well as effect. (Doc. 158 at 119.) The Supreme Court has, in other contexts, recognized that in “rare” cases statistics alone may be able to demonstrate a constitutional violation. See Arlington Heights, 429 U.S. at 266 (observing that statistical evidence must present a “stark” pattern to be accepted as the sole proof of discriminatory intent); see also McCleskey v. Kemp, 481 U.S. 279, 294 n.12 (1987) (noting that only in “rare cases” will “a statistical pattern of discriminatory impact demonstrate[] a constitutional violation” and citing selection of the jury venire and Title VII violations as the two types of cases in which that demonstration is acceptable). In situations similar to the present case, however, courts have held that “statistics may not be the sole proof of a constitutional violation.” Chavez, 251 F.3d at 647–48; accord Duque-Nava, 315 F. Supp. 2d at 1164; Mesa-Roche, 288 F. Supp. 2d at 1196. Here, because of the multiple deficiencies noted as to the statistical evidence, the court does not find it to be sufficient, alone or in combination with all credible record evidence, to demonstrate discriminatory intent to establish a § 14141 claim.
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(11th Cir. 2010), with Farm Labor Org. Comm., 308 F.3d at 534 (“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.’” (quoting Chavez, 251 F.3d at 638) (alteration in original)), and Duque-Nava, 315 F. Supp. 2d at 1153–56 (holding that statistical evidence is sufficient to prove a selective law enforcement claim). The distinction bears importance here because, while the Government’s complaint alleged several specific instances of alleged discriminatory policing (see Doc. 1 ¶ 37), the Government has abandoned virtually all of them following discovery, leaving it with proof of discriminatory effect consisting almost wholly of statistical evidence.
For purposes of this case, the court accepts that the discriminatory effect of selective law enforcement can be demonstrated through the use of statistical evidence of similarly situated individuals. There are several reasons for doing so. None of the cases appearing to require identification of specific, similarly situated individuals in a selective law enforcement case was actually presented with statistical evidence of discriminatory effect. See, e.g., Viezca, 555 F.
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Supp. 2d at 1267 & n.7. Moreover, the Supreme Court has never held that statistical evidence is insufficient to prove a claim of selective prosecution. See Chavez, 251 F.3d at 638 (explaining that the Armstrong Court rejected statistical evidence “not because plaintiffs can never use statistics to prove discriminatory effect, but because the particular statistics presented to the [Armstrong] Court did not address the relevant issue” of whether similarly situated individuals received dissimilar treatment); see also United States v. Hastings, 126 F.3d 310, 316 (4th Cir. 1997) (examining, in dicta, a defendant’s statistical evidence in the context of a selective prosecution case). Rather, the Supreme Court has repeatedly held that the use of statistical evidence alone is usually an acceptable and sufficient method of proving discriminatory effect in its equal protection analysis. See, e.g., Hunter v. Underwood, 471 U.S. 222, 227 (1985) (citing with approval the use of statistical evidence to show discriminatory effect in equal protection analysis); Int’l Bhd. of Teamsters, 431 U.S. 324 at 339 (observing that, in jury selection context, statistical analyses play a valuable role “in cases in which the existence of discrimination is a disputed issue”); cf. Arlington Heights, 429 U.S. at 266 (“Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action . . . .”). Finally, as several
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courts have noted, requiring the identification of specific,

similarly situated individuals is sometimes impractical in

selective law enforcement cases. See, e.g., Chavez, 251 F.3d at

637–40; Bradley v. United States, 299 F.3d 197, 206 & n.11 (3d

Cir. 2002). That is, “[b]ecause law enforcement agencies do not

make or keep records on individuals they do not stop, and

certainly not on ‘similarly situated’ individuals they do not

stop, imposing such a requirement on . . . any defendant who

challenges a traffic stop as selective enforcement, effectively

denies them any ability to discover or prove such a claim.”

Duque-Nava, 315 F. Supp. 2d at 1155.

In addition to demonstrating discriminatory effect, a

plaintiff must also demonstrate discriminatory purpose. This

requires more than proof that an adverse effect was merely

“foreseeable.”

Feeney, 442 U.S. at 278.

Establishing

discriminatory purpose instead requires a sufficient showing

that “the decisionmaker . . . selected or reaffirmed a

particular course of action at least in part because of, not in

spite of, its adverse effects on an identifiable group.” Sylvia

Dev. Corp., 48 F.3d at 819 n.2 (quoting Feeney, 442 U.S. at 279)

(internal quotation marks omitted). In other words, a plaintiff

must show that racial discrimination was a “motivating factor”

in the governing body’s decision. Arlington Heights, 429 U.S. at

265–66; see also Talbert v. City of Richmond, 648 F.2d 925, 929

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(4th Cir. 1981). This “demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” Arlington Heights, 429 U.S. at 266. The Fourth
Circuit has highlighted several factors “probative of whether a
decisionmaking body was motivated by a discriminatory intent.”
Sylvia Dev. Corp., 48 F.3d at 819. Those factors include the
following:
(1) evidence of a “consistent pattern” of actions by the decisionmaking body disparately impacting members of a particular class of persons; (2) historical background of the decision, which may take into account any history of discrimination by the decisionmaking body or the jurisdiction it represents; (3) the specific sequence of events leading up to the particular decision being challenged, including any significant departures from normal procedures; and (4) contemporary statements by decisionmakers on the record or in minutes of their meetings.
Id.; see also Arlington Heights, 429 U.S. at 266–68. This list
is by no means exhaustive. See Arlington Heights, 429 U.S. at
268 (identifying, “without purporting to be exhaustive, subjects
of proper inquiry in determining whether racially discriminatory
intent existed”); Talbert, 648 F.2d at 929. “In the end, the
plaintiff has the burden of establishing that a classification
introduced through administrative action was ‘clear and
intentional.’” Sylvia Dev. Corp., 48 F.3d at 819 (quoting
Snowden v. Hughes, 321 U.S. 1, 8 (1944)).
The Government’s evidence of a facially neutral
classification broadly covers six areas of ACSO’s law
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enforcement practices: traffic stops; checkpoint placement and

stops; post-stop outcomes; searches after stops; the 287(g)

program; and internal procedures. While the court will address

each area in turn, it also considers all of them collectively in

the context of the entire evidentiary record for purposes of the

constitutional inquiry.

In sum, given the totality of

circumstances adduced from all the trial evidence, the

Government fails to demonstrate a pattern or practice of

facially neutral but discriminatory classifications.

i. Traffic Stops

In its complaint and at trial, the Government contended

that ACSO targeted Hispanics for traffic stops. The Government

presented Dr. Lamberth’s testimony, which has been excluded (and

thus need not be addressed further), and evidence of three

individual traffic stops performed by ACSO officers. However,

none evinces a discriminatory intent or effect.

One traffic stop was Deputy Conklin’s stop of a van (which

unbeknownst to the deputy contained Hispanic passengers) for

impeding traffic on Interstate 40.

Deputy Conklin’s

investigation quickly revealed evidence of human trafficking

(i.e., “multiple fast-food bags with trash in them” and bottles

filled with urine), a criminal offense (N.C. Gen Stat. § 14-

43.11), which prompted the deputy to contact ICE, who in turn

asked him to detain the van’s occupants for fifty minutes to an

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hour until ICE agents arrived. (Doc. 150 at 94–95.) Nothing about this stop suggests a discriminatory intent on the part of Deputy Conklin. The Supreme Court has acknowledged that state law enforcement may legitimately cooperate with federal immigration officials, Arizona v. United States, 132 S. Ct. 2492, 2507–09 (2012), and no evidence was presented that the deputy delayed the van (for ICE’s arrival) beyond that which was required for him to resolve the State criminal inquiry.
Another stop — the lane-changing driver testified to by Assistant U.S. Attorney Husser — fails to show a discriminatory purpose or effect. The stop was simply described as a “bad stop,” and Husser was unclear whether the driver was even Hispanic. (Doc. 148 at 192–93, 198.) Importantly, Husser testified that no ACSO stop he reviewed indicated the profiling of Hispanics.
Finally, the stop of Jose Luis Arzola, Jr., fails to demonstrate discriminatory purpose or effect. The Government provided no evidence indicating a lack of probable cause for the stop. Upon being stopped, Arzola was asked for his “papers,” but it is unclear to what that term refers, as Arzola also originally failed to provide the officer his vehicle registration. (Doc. 147 at 185–86, 191–92.) Even assuming the officer meant immigration documents, that request does not appear to be unlawful in and of itself absent evidence that the
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request delayed the legitimate purpose of the traffic stop. See Arizona, 132 S. Ct. at 2509; Muehler v. Mena, 544 U.S. 93, 101 (2005).
The Government’s evidence of discriminatory profiling in ACSO’s traffic stop practices thus fails to demonstrate a Fourteenth Amendment violation.
ii. Checkpoint Placement and Stops The next area of challenge involves ACSO’s checkpoint operations. The Government charges that ACSO targeted Hispanic drivers by siting checkpoints in predominantly Hispanic neighborhoods and stopping Hispanics discriminatorily at checkpoints. In the absence of Dr. Lamberth’s inadmissible testimony, the Government relies on four incidents occurring at ACSO checkpoints and Dr. Banks’ finding that 36% of checkpoint stops involved Hispanics.89 The first incident offered by the Government is the checkpoint interaction between Deputy Keller and Paula Crotts, during which the deputy (who knew Crotts personally) told her husband that she did not need to see his license, adding they were “there to get them some” and motioning toward a predominately Hispanic mobile home park. (Doc. 149 at 119.) 89 Elsewhere, the Government notes Dr. MacDonald’s analysis of searches at checkpoints and post-stop outcomes, which include those at checkpoints. For the reasons explained infra, however, that analysis is unpersuasive evidence of a discriminatory effect at ACSO checkpoints.
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Crotts said she assumed the word “some” alluded to “as many

Hispanics” or “an Hispanic person” but admitted, “I don’t know

what [Deputy Keller] meant.” (Id. at 120, 125.)

What Deputy Keller may have meant is at best murky, and

Crotts’ opinion, which came in without objection, is

nevertheless speculative. It would support the Government’s

theory if she meant they were there to “get them some

Hispanics.” There is no evidence of the type of checkpoint

being conducted, however.

If it was an informational

checkpoint, it would be entirely consistent for Deputy Keller to

have waived off Mr. Crotts’ effort to volunteer his license

because the deputies would have been there to gather information

to apprehend a specific suspect. And a comment in that regard

could mean “some suspects” or “some criminals,” or, as Crotts

surmised, “an Hispanic person” in particular. (Id. at 120.) In

fact, Crotts volunteered at trial that as a dispatcher for the

County, “we have had a lot of calls at that mobile home park”

such that she knew the address “by heart.” (Id. at 117.) If it

was a standard checkpoint, however, it does appear that Deputy

Keller’s failure to check Crotts’ husband’s license may have

contravened ACSO’s checkpoint policy (raising a potential Fourth

Amendment concern), but that any departure was most likely based

on the fact that she personally knew the Crottses. Under that

scenario and even attributing the Government’s gloss to Keller’s

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statement, the probative value is weak because it is saddled with such vagueness.
Next is the checkpoint set up by Corporal Nicholson near a predominately Hispanic mobile home park. The evidence at trial, however, showed that that the checkpoint followed Sheriff Johnson’s direction to conduct some law enforcement activity in the area due to the presence of a specific Mexican gang then under ACSO investigation for criminal activity.
Third, the Government points to Sheriff Johnson’s direction to “arrest Hispanics” at a checkpoint on Highway 49 one-half mile from the Seamsters mobile home park, which is predominantly Hispanic. (Doc. 147 at 29–30, 47, 155.) As noted earlier, there are problems with the Government’s characterization of the directive. Nevertheless, even assuming the Sheriff gave such a directive, the Government’s own evidence reveals that the officers claiming they heard the order did not carry it out. Thus, there was never any discriminatory effect.
Fourth is Officer Lloyd’s testimony that then-Chief Deputy McPherson had reported at a checkpoint that the Sheriff had said that any Hispanics driving without a driver’s license or driving with a revoked license should be arrested. Upon follow-up with Sheriff Johnson, however, Deputy McPherson made clear that he “didn’t mean [arrest] just Hispanics” but “Hispanics, whites,
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and blacks.” (Id. at 158–59.) Again, there was no evidence that anyone carried out any allegedly improper order.
Finally, the Government points to testimony by Sheriff Johnson’s expert witness, Dr. Banks, that from 2009 to 2012, 36.8% of ACSO’s stops at checkpoints were of Hispanics. (Doc. 153 at 99–100, 170.) The Government seeks to compare this figure to unadjusted U.S. Census data reporting that Hispanics constituted only 11.6% of Alamance County’s population in 2010 and 8.6% of the County’s driving-age population. (Id. at 170– 71.) The Government contends this shows discriminatory effect. (Doc. 155 at 55–56; Doc. 158 at 110–11.)
The Government’s argument here — comparing Dr. Banks’ figure to unadjusted Census data — contravenes its steadfast position throughout trial that unadjusted U.S. Census data is unreliable for use as a benchmark and leads to erroneous results. (Doc. 153 at 145–46, 157.) Indeed, in its closing argument, the Government contended that U.S. Census data provided an “unreliable” benchmark and thus was not “probative” evidence of driving patterns in Alamance County. (Doc. 155 at 58–59; see also id. at 59 (“[U]nadjusted census data is widely discredited as a benchmark in social scientific literature.”).) Dr. Banks confirmed the Government’s criticisms by agreeing that use of U.S. Census data as the benchmark for drivers is not supported by academic literature and would not provide reliable
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information. (Doc. 153 at 145-46.) Thus, the Government’s argument offers little on the issue of discriminatory effect. See Chavez, 251 F.3d at 643–44 (observing that use of U.S. Census data as a benchmark “tell[s] . . . very little about the numbers of Hispanics” on the roads).
Without an appropriate benchmark, the Government’s reliance on Dr. Banks’ finding that 36.8% of the stops at checkpoints in Alamance County were of Hispanics is unreliable proof of discrimination. (Doc. 153 at 99–100.) The Government argues that this figure demonstrates that ACSO sites checkpoints disproportionately where Hispanics drive and stops them disproportionately. (Doc. 158 at 110–11.) On this record, however, Dr. Banks’ figure demonstrates neither.
As to alleged discriminatory checkpoint siting, it bears reminding what Dr. Banks’ figure allegedly reflects. The figure does not reflect all persons ACSO questioned at a checkpoint, or even those who drove through one. Rather, ACSO officers completed a stop form only for those actually detained beyond the initial questioning at the checkpoint. Consequently, without a legitimate benchmark, Dr. Banks’ figure says nothing about the number of persons passing through ACSO checkpoints, or their ethnicity, and thus is not proof that ACSO sites checkpoints discriminately near Hispanic areas. This conclusion is buttressed by the fact that, while there was evidence that
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ACSO occasionally sited checkpoints near Hispanic neighborhoods, there were 435 total checkpoints over four years positioned over much of the County. The Government has all but ignored these other checkpoints and has not shown that there was any effort to focus checkpoints on areas more densely populated by Hispanics than any other area of the County. Rather, the persuasive evidence is that ACSO sited checkpoints throughout the County and conducted them based on legitimate law enforcement reasons.
Second, regarding alleged discriminatory checkpoint stopping, the question is whether Dr. Banks’ figure is evidence that persons similarly situated to Hispanics were not detained (and thus not issued stop forms) based on ethnicity. This begs the question of what percentage of Hispanics engage in conduct that prompted the detainment and issuance of a stop form. ACSO officers can detain a driver only after they determine there is reasonable suspicion to believe that the driver or vehicle passenger has violated the law. (See Gov’t Trial Ex. 113 at 2.) Thus, to prove discriminatory decision-making in checkpoint detainment, the Government should have provided evidence allowing for a comparison of violating and non-violating Hispanics to violating and non-violating non-Hispanics who passed through the checkpoints. Dr. Banks’ figure itself says nothing about why any person was detained.
It is possible, of course, that ACSO was stopping Hispanics 197

discriminatorily. But it is at least equally possible that ACSO

had reasonable suspicion or probable cause to detain

proportionately more Hispanics than non-Hispanics without regard

to ethnicity. Cf. Armstrong, 517 U.S. at 469–70 (rejecting

court of appeals’ presumption that people of all races commit

all types of crimes at equal rates). If true, drivers’

ethnicity may merely correlate with chances of being detained

without actually being a cause of detainment. It is unlikely

anyone knows who in fact passed through a checkpoint without

causing the production of a stop form, and the court recognizes

that such information is not reasonably available to the

Government.

To show that ACSO discriminatorily detained

Hispanics at checkpoints, however, the Government could have,

for example, created a legitimate benchmark measuring the

drivers as if passing through a checkpoint, categorizing and

distinguishing them based on ethnicity and whether they were in

fact violating the law. But the Government’s benchmark study by

Dr. Lamberth was fatally flawed. In the absence of some further

proof, the court is unable to determine whether ACSO

discriminately detained Hispanics more frequently than similarly

situated non-Hispanics. Therefore, the Government’s attempted

use of Dr. Banks’ figure — even considered against the entire

record — is unpersuasive as evidence of discriminatory

checkpoint stopping.

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iii. Post-Stop Outcomes The Government next contends that ACSO’s post-stop decision-making evidences Fourteenth Amendment violations. Here, the Government relies principally on Dr. MacDonald’s testimony, as well as on testimony that Sheriff Johnson ordered deputies to arrest Hispanics and the balance of the record. The court has already addressed the lay witness testimony, so the expert testimony will be examined below. Dr. MacDonald examined the outcomes from ACSO traffic stops and opined that, when he controlled for the reason for the traffic stop (by way of regression analysis), Hispanics had higher arrest and citation rates but lower rates of written warnings, verbal warnings, or non-enforcement action. The Government argues that such “disparities” in post-stop outcomes between Hispanics and non-Hispanics proves discriminatory effect. (Doc. 158 at 90–94.) Whatever the superficial appeal of this argument, it fails under closer examination because the underlying analysis is too abstract and does not properly compare Hispanics to similarly situated non-Hispanics for what it claimed to measure. That is, the Government’s post-stop outcome analysis fails to demonstrate a Fourteenth Amendment violation because it does not show that Hispanics were treated more harshly than non-Hispanics for similar offenses. See Armstrong, 517 U.S. at 465 (“The requirements for a selective-
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prosecution claim draw on ‘ordinary equal protection standards.’”); United States v. Timms, 664 F.3d 436, 447 (4th Cir. 2012) (denying a Fourteenth Amendment claim because alleged dissimilar treatment was not between similarly situated persons); Williams v. Hansen, 326 F.3d 569, 576 (4th Cir. 2003) (same).
“[I]n determining whether persons are similarly situated for equal protection purposes, a court must examine all relevant factors.” United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996); see also Ah Sin v. Wittman, 198 U.S. 500, 507–08 (1905) (“Plaintiff in error seeks to set aside a criminal law of the state . . . [on the ground] that it was made [unconstitutional] by the manner of its administration. This is a matter of proof; and no fact should be omitted to make it out completely, when the power of a Federal court is invoked to interfere with the course of criminal justice of a state.” (emphasis added)). In this case, the Government claims to measure differences in stop outcome between Hispanics and non-Hispanics. But its evidence overlooks not just a relevant factor in ACSO’s post-stop outcome decision-making, but the relevant factor — the basis for ACSO’s decisions to arrest, cite, warn or take no action at all, which are the very actions the Government contends constitute the discriminatory policing. See Attorney Gen. of U.S. v. Irish People, Inc., 684 F.2d 928, 946 (D.C. Cir. 1982)
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(“Discrimination cannot exist in a vacuum; it can be found only

in the unequal treatment of people in similar circumstances.”).

Most fundamentally, Dr. MacDonald’s analysis requires the

court to assume two major propositions: (1) similarity in

generic stop reason means similarity in the severity of the

conduct resulting in the stop; and (2) the stop reason (which

Dr. MacDonald does not purport to measure) equates causally with

the reason for the stop outcome (which he claims to measure).

The trial evidence offers no proof of either of those

assumptions, and Dr. MacDonald himself never attempted to say so

at trial.

Indeed, for several obvious reasons, these

assumptions cannot be made. Some simple examples illustrate

why.

First, “controlling for” one of the listed stop reasons

noted on an ACSO stop form fails to account for the stop conduct

— that is, the nature and degree of severity of the conduct

resulting in the stop. Differences in the severity of stop

conduct may likely explain differences in how the suspect is

treated. For example, a common stop reason is “speed limit

violation.” (Gov’t Trial Ex. 59.) However, a driver clocked at

70 m.p.h. in a 65 m.p.h. zone is much more likely to be warned,

cited, or receive no action than a driver going 80 m.p.h., who

is more likely to be cited or even arrested. See N.C. Gen Stat.

§ 15A-401(b)(2) (stating that an officer can arrest an

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individual for any criminal offense without a warrant when the offense is committed in the presence of an officer, such as reckless driving, N.C. Gen. Stat. § 20-140 (defining reckless driving as operating a vehicle “carelessly and heedlessly in willful or wanton disregard of the rights or safety of others”)). Similarly, other stop reasons provided on ACSO’s stop forms, such as “safe movement violation” vary in degree and may therefore explain differences in post-stop outcomes. (See Gov’t Trial Ex. 59.) Other stop reasons are too generic to assume they involve similar conduct and actually vary both in kind and in degree. An obvious example of the latter is “vehicle equipment violations.” Compare N.C. Gen. Stat. § 20123.2 (requiring that vehicles contain a speedometer), with N.C. Gen. Stat. § 20-130.1 (prohibiting installation of red and blue lights on a vehicle). Thus, controlling for stop reasons generically, as Dr. MacDonald has done, provides little evidence that the persons stopped are in fact similarly situated.
Second, suppose two drivers, one non-Hispanic Caucasian and one Hispanic, are each stopped for speeding 10 m.p.h. over the speed limit. So far, (assuming all things else being equal, which they rarely are) the drivers are similarly situated based on the stop reason. Yet in conversing with the Caucasian driver, the officer smells alcohol and determines probable cause
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for driving while impaired.90 So, the driver is arrested for
that offense. However, the other officer who stopped the
Hispanic driver observes that the driver was only speeding as a
first offense and issues a verbal warning. Therefore, as to
their actual law violations, the drivers are not similarly
situated, which explains and justifies their dissimilar post-
stop outcomes. This does not even take into account the
offenders’ prior criminal and traffic record, which may inform
the officers’ discretion. Dr. MacDonald’s study ignores these
distinctions between drivers in purporting to control for stop
reason. Yet, when confronted with a comparable hypothetical at
trial, Dr. MacDonald conceded that, in scenarios like the
driving-while-impaired speeder, “the ultimate charge was not a
consequence of the [stop reason].”91 (Doc. 155 at 43.)
The Government’s evidence as to outcomes other than arrests
and citations — written warnings, verbal warnings, and no action
— fares no better when “controlled for” stop reason. While one
90 The court uses this offense simply because Dr. MacDonald testified that a driver who was impaired is more likely to be arrested while a driver who was speeding is more likely to be cited. (Doc. 149 at 39.) Other reasons for driver arrests undoubtedly exist, but, because Dr. MacDonald’s study omitted that information, no proper comparison can be made. Dr. MacDonald’s failure to include the conduct underlying the ultimate outcome is particularly problematic as to his arrest comparison because, as he conceded, an arrest for mere speeding is unlikely. 91 Margo Frasier also opined that, when examining an officer’s decision to arrest versus cite, one must consider the “offense[] for which the law allows either a citation or an arrest.” (Doc. 151 at 27.)
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might argue that the presence or absence of a warning might be more closely related to stop reason (although the Government provided no evidence this is so), the differences between Hispanics and non-Hispanics as to written warnings, verbal warnings, and no action could just as easily be driven by whether or not they were arrested or cited for similar conduct. That is, a decision to arrest or cite is likely made in lieu of issuing a warning. This is demonstrated by the fact that, if one were to look only at the post-stop outcomes for written warnings, verbal warnings, and no action, Dr. MacDonald’s study would show that, at least as to these, Hispanics are better off as compared to non-Hispanics.
It is therefore unknown just how often (1) similarity in generic stop reason means sufficient similarity in the severity of the conduct resulting in the stop and (2) the stop reason is causally related to the basis for the stop outcome. This is particularly problematic in light of Whren v. United States, 517 U.S. 806 (1996), which allows (nondiscriminatory) pretextual traffic stops. Without controlling for these obvious, nondiscriminatory reasons for post-stop outcomes, Dr. MacDonald’s statistical evidence does not prove dissimilar treatment between Hispanics and similarly situated non-Hispanics as to stop outcome. See Armstrong, 517 U.S. at 465; Timms, 664 F.3d at 447; Attorney Gen. of U.S., 684 F.2d at 946.
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The Government must do more than it did here, citing

superficial statistical disparities to show discriminatory

effect. As the Seventh Circuit cautioned, “Of course, parties

may not prove discrimination merely by providing the court with

statistical analyses. The statistics proffered must address the

crucial question of whether one class is being treated

differently from another class that is otherwise similarly

situated.” Chavez, 251 F.3d at 638; see also Cordi-Allen v.

Conlon, 494 F.3d 245, 251 (1st Cir. 2007) (“[The similarly

situated] requirement demands more than lip service . . . . It

is inadequate merely to point to [disparities] in a vacuum and

leave it to the [defendant] to disprove conclusory allegations

that [persons] are similarly situated.”); Olvis, 97 F.3d at 744

(“The goal of identifying a similarly situated class of law

breakers is to isolate the factor allegedly subject to

impermissible discrimination.”

(quoting United States v.

Aguilar, 883 F.2d 662, 706 (9th Cir. 1989))); Moore v. City of

Charlotte, N.C., 754 F.2d 1100, 1110 (4th Cir. 1985) (“[A]

conclusion that individuals have received discriminatory

disparate treatment may be supported only where the notion of

comparability is informed by sound, articulated principles

. . . .”). By only citing differences in post-stop outcomes

without also showing that Hispanics were treated dissimilarly

from those similarly situated to them, the Government thus fails

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to demonstrate discriminatory effect under the Fourteenth

Amendment.

See Ah Sin, 198 U.S. at 507–08 (rejecting

plaintiff’s claim that ordinance was enforced “solely and

exclusively against persons of the Chinese race” because it did

not allege “that the conditions and practices to which the

ordinance was directed did not exist exclusively among the

Chinese, or that there were other offenders against the

ordinance than the Chinese, as to whom it was not enforced”);

United States v. Bass, 536 U.S. 862, 863–64 (2002) (“[R]aw

statistics regarding overall charges say nothing about charges

brought against similarly situated defendants.” (emphasis

added)); Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 492

(7th Cir. 2007) (“Statistical evidence is only helpful when the

plaintiff faithfully compares one apple to another without being

clouded by thoughts of Apple Pie ala Mode or Apple iPods.”);

Olvis, 97 F.3d at 745 (“Without an appropriate basis for

comparison, raw data about the percentage of black crack cocaine

defendants proves nothing.” (emphasis added)); Cooper v. S. Co.,

260 F. Supp. 2d 1305, 1317 (N.D. Ga. 2003) (“While Plaintiff’s

expert reports an over-all statistical disparity between black

and white employees in compensation, Plaintiff’s evidence

generally fails to compare similarly situated individuals,

significantly diminishing the probative value of any

disparity.”), aff’d, 390 F.3d 695 (11th Cir. 2004), overruled on

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other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006).
The court reaches this conclusion with the appreciation that the type of information necessary to determine whether persons are similarly situated is simply unavailable or practically difficult to obtain in some instances. See, e.g., Chavez, 251 F.3d at 639-40 (noting that, “[i]n a civil racial profiling case, however, the similarly situated requirement might be impossible to prove”). But see Armstrong, 517 U.S. at 566 (“The similarly situated requirement does not make a selective-prosecution claim impossible to prove.”). While the Government never made this argument, it is plain that this case is not one of them.
For one, there is evidence that Dr. MacDonald could have controlled for the differences in severity of driver stop conduct, but did not. While not documented on ACSO’s stop forms and therefore not accounted for in that data, differences in severity of stop conduct are reflected in ACSO’s citation data, at least as to speed. (See Gov’t Trial Ex. 71 (observing on citation form that driver was going approximately 45 mph in a 35 mph speed zone).) The Government made no effort to control for those differences here. This failure is particularly important where the Government attempts to distinguish between gradations of outcome without considering gradations of conduct that are
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likely causally associated with outcome. The Government also had access to ACSO’s arrest and
citation forms. Dr. MacDonald could therefore have matched ACSO’s citation and arrests forms, which contain the reasons for citations and arrest, with ACSO’s stop forms to account for differences between stop reason and the basis for the post-stop outcome.92 (Doc. 155 at 35–36 (Dr. MacDonald conceding that one “could try” to match the citation and arrest forms to the stop forms); see also Doc. 153 at 112, 165–66 (Dr. Banks testifying that he “hand-matched” traffic stop forms to arrest reports to determine the number of checkpoint arrests); Gov’t Trial Ex. 71 (example citation form).) Dr. MacDonald testified, however, that he elected not to do so. (Doc. 155 at 42.) He acknowledged further that, without the reason for citations and arrests, “you’re missing the context.” (Id. at 36; see also id. at 41 (agreeing that, under his study, “you wouldn’t know the type of arrest, charge, or the type of citation”); id. at 42 (admitting that, without providing the reason for citations and arrests, “a layer of contextual information” is missing).) As Dr. MacDonald candidly allowed, it is important to have the reasons for citations and arrests as “it’s always better to have 92 Importantly, this does not mean that the Government needed to match by hand all 20,059 traffic stop forms it analyzed. For example, while controlling for the issues noted, it could have instead matched a sufficiently sized sample of stop forms with citation or arrest data, like Dr. Banks did. (See Doc. 153 at 112–13, 165–66.)
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more data to try to explain the disparities, to see what’s driving them.” (Id. at 35 (emphasis added).)
Thus, by ignoring this evidence, Dr. MacDonald’s analysis fails to preclude other equally plausible, non-discriminatory reasons for the inference the Government seeks to draw from his post-stop outcome figures. The thrust of the Government’s claim is that ACSO’s leadership instructs officers to arrest (rather than cite) Hispanics and bring them to jail (where they would be checked for immigration status in the 287(g) program and detained for deportation). (See Doc. 158 at 1–3, 10–14.) Consequently, if the theory held true, one might logically expect to find not only higher rates of arrest for Hispanics but lower rates of citations. Yet, Dr. MacDonald finds that Hispanic drivers were not only arrested but cited at rates higher than that of non-Hispanic drivers, and in significant numbers: 55.8% of Hispanics cited versus 32.0% of non-Hispanics. (Doc. 149 at 21–22.) Because Dr. MacDonald fails to examine any of the reasons for citations or arrests, as well as the differences in the stop conduct, he does not rule out (or at least make less plausible) benign motives. For example, were the Hispanics stopped for the same stop reason as non-Hispanics in fact similarly violating the law that formed the basis for their stop? Were the Hispanics arrested not in fact committing more serious crimes deserving of arrest, or were they committing
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lesser offenses than non-Hispanics? And, were Hispanics in reality only cited for lacking any driver’s license (or when lacking any identification) or were they arrested?93 Rather than rule out these plausible, non-discriminatory explanations, Dr. MacDonald’s analysis instead requires the court to assume police misconduct was afoot.
The Government contends that its showing is sufficient to shift the burden to Sheriff Johnson to demonstrate that the disparities were caused by factors other than ethnicity. (See, e.g., Doc. 158 at 97–104.) For example, at trial and in its post-trial filing, the Government repeatedly attacked Sheriff Johnson’s attempts to show that Hispanics and non-Hispanics are not similarly situated.94 (See Doc. 155 at 54–55; Doc. 158 at 97–104.) In making these criticisms, however, the Government attempts to avoid its own obligation. Sheriff Johnson need not establish dissimilarities between Hispanics and non-Hispanics in Alamance County. The Government — not Sheriff Johnson — bears the burden of proving that ACSO treated Hispanics in a
93 Such questions are critical, even if the Government’s theory is only that, by directing that Hispanics be arrested, ACSO necessarily cited more Hispanics because bases for their arrest did not exist. 94 Similarly, Dr. MacDonald stated on several occasions that he did not “need” to look at the reason for citation and arrest for his study to show discriminatory effect. (See, e.g., Doc. 149 at 18.) Instead, Dr. MacDonald relied on his “belief” that the size of the disparities excused him from analyzing the reason for citations and arrests. (Doc. 155 at 34.)
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dissimilar fashion from similarly situated non-Hispanics. See Sansotta, 724 F.3d at 542 (describing the “burden” plaintiffs must carry to prove an equal protection claim); Cordi-Allen, 494 F.3d at 250 (“[C]ase law makes clear that the burdens of production and persuasion must be shouldered by the party asserting the equal protection violation.”).
In sum, Dr. MacDonald’s post-stop outcome study fails to show discriminatory effect.
iv. Searches After Stops The Government also presented a second statistical analysis by Dr. MacDonald assessing searches performed by ACSO officers as evidence of discriminatory effect. Dr. MacDonald’s search analysis made three findings: (1) Hispanics were searched more frequently than non-Hispanics; (2) at checkpoints, searches of stopped Hispanics produced less drug and overall contraband (his checkpoint “hit rate”); and (3) searches of Hispanics yielded less drug contraband than searches of non-Hispanics (his overall “hit rate”). In sum, Dr. MacDonald opined that his analysis “suggest[s] that there is a different standard, a lower threshold of suspicion or probable cause [being applied] in searching Latinos compared to non-Latinos.” (Doc. 149 at 48; see also id. at 42, 45.) The Government argues that, because Dr. MacDonald’s analysis “suggest[s]” differences in search standards between Hispanics and non-Hispanics, it proves
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discriminatory effect. (Doc. 158 at 94–96.) The Government’s

conclusion, however, is unpersuasive.

An initial weakness with all three of Dr. MacDonald’s

search findings is that, although in possession of ACSO’s search

data, the Government neither alleged nor put on evidence of a

single instance in which an ACSO officer failed to meet the

requisite legal standard necessary to perform a search of any

Hispanic. Such evidence would have suggested the application of

a different search standard for Hispanics, and its omission

stands in contrast to other cases identifying discriminatory

policing. See, e.g., Floyd, 959 F. Supp. 2d at 627–28, 636–37,

640–42, 652–55 (finding multiple instances of unconstitutional

searches). Although the Government was certainly not required

to cite such evidence to demonstrate discriminatory effect, its

lack of this evidence burdens its suggested inference. See

Int’l Bhd. of Teamsters, 431 U.S. at 339 (observing that

anecdotal evidence serves to bring “the cold numbers

convincingly to life”); EEOC v. Joe’s Stone Crab, Inc., 220 F.3d

1263, 1274 (11th Cir. 2000) (“[I]n a pattern and practice case,

the plaintiff must prove, normally through a combination of

statistics and anecdotes, that discrimination is the [entity’s]

‘standard operating procedure.’”

(quoting Int’l Bhd. of

Teamsters, 431 U.S. at 335–36)); cf. Brown v. Nucor Corp., 785

F.3d 895, 914 (4th Cir. 2015) (noting that “statistical and

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anecdotal evidence, especially when combined, thus provide precisely the ‘glue’ of commonality” necessary in the class certification context).
Second, according to the Government, these three findings “suggest” that ACSO uses a different standard when searching stopped Hispanics. A suggestion of different search standards, however, is insufficient to meet the Government’s burden of proof. Sakaria v. Trans World Airlines, 8 F.3d 164, 172–73 (4th Cir. 1993) (“In a long line of decisions in this circuit, we have emphasized that proof of causation must be such as to suggest ‘probability’ rather than mere ‘possibility,’ precisely to guard against raw speculation by the fact-finder.” (citing cases)); see also Mckoy v. Charlotte-Mecklenburg Sch., No. 3:10CV494, 2011 WL 1869958, at *6 (W.D.N.C. May 16, 2011) (“The case law is clear in the Fourth Circuit that speculation and conjecture raise a mere possibility of discrimination rather than the reasonable probability which is necessary to support an inference of discrimination.”).
Third, all three of Dr. MacDonald’s search findings suffer from omitted variable bias — the failure to control for an important causal factor. (Doc. 153 at 132–33.) The Government attempts to use Dr. MacDonald’s analysis to support the inference that ACSO applies a different search standard to Hispanics. In reaching these findings, however, Dr. MacDonald
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did not control for a critical variable — the type of search — that may easily explain search differences. This omission seriously undermines the probative value of those findings. See Reed Const. Data Inc. v. McGraw-Hill Cos., Inc., 49 F. Supp. 3d 385, 403–04 (S.D.N.Y. 2014) (“Omitted-variable problems — as the name suggests — arise when important control variables are left out of the model.”). Without controlling for search type, the Government’s attempt to demonstrate that ACSO discriminatorily searches Hispanics fails to show whether ACSO’s search standards — or rather the type of search — is driving Dr. MacDonald’s results. See People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 111 F.3d 528, 537–38 (7th Cir. 1997) (“[A] statistical study that fails to correct for salient explanatory variables, or even to make the most elementary comparisons, has no value as causal explanation.”).
The ACSO stop form lists several types of searches: consent; search warrant; probable cause; search incident to arrest; and protective frisk. (Gov’t Trial Ex. 59.) While Dr. MacDonald’s finding on drug contraband hit rate analysis controlled for one of these — searches incident to arrest — it failed to control for any other. Most problematic is the first among the search types — “consent.” A consent search applies no search standard at all and merely requires an individual’s voluntary consent. See United States v. Robertson, 736 F.3d
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677, 679 (4th Cir. 2013) (“[I]f an individual consents to a
search, probable cause is unnecessary.”). Consent may in fact
explain a significant portion of searches. See United States v.
Worley, 193 F.3d 380, 386 (6th Cir. 1999) (describing a search
conducted pursuant to voluntary and valid consent as “[o]ne of
the most common” exceptions to the Fourth Amendment’s warrant
requirement); Ric Simmons, Not “Voluntary” but Still Reasonable:
A New Paradigm for Understanding the Consent Searches Doctrine,
80 Ind. L.J. 773, 773 (2005) (“Over 90% of warrantless police
searches are accomplished through the use of the consent
exception to the Fourth Amendment.”). Yet, Dr. MacDonald’s
analysis makes no distinction between a search based on consent
and a search based on probable cause.95
Moreover, while Dr. MacDonald controlled for searches
incident to arrest as to overall drug contraband, his findings
that (1) Hispanics were searched at a higher percentage than
95 Dr. MacDonald presented an analysis controlling for searches incident to arrest only as to drug contraband hit rates. In an unsupported statement, he stated that he looked at “other indicators of contraband” and found a “consistent pattern of hit rates being significantly lower for Latinos compared to non-Latinos.” (Doc. 149 at 44.) This conclusory statement is difficult to interpret. Without providing hit rates for other types of contraband, Dr. MacDonald’s observed drug contraband hit rates may also be explainable by contraband type. For example, one would not expect “protective frisks” — a type of “search” identified on the stop form — to yield high numbers of drug contraband. See United States v. HernandezMendez, 626 F.3d 203, 211 (4th Cir. 2010) (“A frisk for weapons is permissible when an officer reasonably believes that the person being stopped ‘may be armed and presently dangerous.’” (quoting Terry v. Ohio, 392 U.S. 1, 24 (1968))). Yet, Dr. MacDonald did not address this.
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non-Hispanics and (2) searches of stopped Hispanics at checkpoints produced less drug and overall contraband both fail to do so. Searches conducted incident to (i.e., after) arrest are non-discretionary for ACSO officers. (Doc. 149 at 63–64; Doc. 154 at 21–22); see also United States v. Robinson, 414 U.S. 218, 235 (1973) (“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.”). If an ACSO officer arrests an individual, he must search the individual for contraband and weapons under ACSO policy. Dr. MacDonald’s overall search percentages and checkpoint search findings nevertheless included those uncontrolled-for, non-discretionary searches. Including those non-discretionary searches severely undermines the probative value of those two findings.96
96 Notably, the Government cites Nicola Persico & Petra Todd, Generalising the Hit Rates Test for Racial Bias in Law Enforcement, with an Application to Vehicle Searches in Witchita, 116 Econ. J. F351 (Nov. 2006), in support of its argument that ACSO conducts discriminatory searches. That article, however, observes,
A key assumption of the [hit rate] model . . . is that police choose whom to search so as to maximize successful searches. Police presumably have little discretion in cases where they pull over a driver because they have a warrant for the driver’s arrest or when the search is incident to an arrest. Therefore, we limit our analysis sample to observations on police-motorist encounters where police have discretion over whether to initiate the search.
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In sum, beyond controlling for searches incident to arrest with respect to Dr. MacDonald’s overall drug contraband finding, the Government makes no effort to address the effect of search type on the analysis. The Government’s suggested inference that ACSO applies a different search standard to Hispanics, even in light of the Government’s other evidence, is thus nothing more than that — a suggestion — and is too weak to show discriminatory effect by a preponderance of the evidence. See Bazemore v. Friday, 478 U.S. 385, 400 (1986) (Brennan, J., concurring) (“[F]ailure to include variables will affect the analysis’ probativeness.”); see also EEOC v. Int’l Bus. Machs. Corp., 583 F. Supp. 875, 906 (D. Md. 1984) (“Ignoring key variables may render the results of a multiple regression analysis useless.”).
The Government’s proposed inference is further undermined by the testimony of Officer Dockery. Officer Dockery testified that, once searches incident to arrest are removed from the calculus, little disparity existed between the percentage of Hispanics and non-Hispanics searched. (Doc. 153 at 53–58.) In other words, once the analysis focuses only on searches where deputies have discretion to search, the purported blanket
Id. at F357 (emphasis added). The Government’s cited article thus bolsters the conclusion that Dr. MacDonald’s failure to control for search incident to arrest undermines his study’s probative value.
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disparity between Hispanics and non-Hispanics that Dr. MacDonald urges becomes much more muddled and complicated, with the disparities now running both ways depending on the stop reason.
Officer Dockery’s testimony that ACSO searched Hispanics and non-Hispanics in approximately equal percentages, moreover, suggests that Dr. MacDonald’s search findings are an even more attenuated attempt to show discriminatory effect than his poststop outcome study. For example, Officer Dockery testified that 11.42% of stopped Hispanics were searched for investigatory reasons, as compared to 16.46% of stopped non-Hispanics searched for the same reason. (Id. at 55.) And, Officer Dockery’s testimony regarding searches at checkpoints is directly at odds with Dr. MacDonald’s checkpoint hit-rate findings. Officer Dockery found that, after removing searches incident to arrest, Hispanics were searched less often than non-Hispanics, and by a factor of more than 4 to 1 (5.18% of stopped Hispanics versus 22.27% of stopped non-Hispanics). (Id. at 54.) The Government has thus not persuasively shown that ACSO conducts discretionary searches of Hispanics and non-Hispanics in different percentages, yet it seeks to argue that ACSO uses different search standards based on ethnicity.
The Government’s suggested inference thus requires the court to make a significant, unsupported assumption. That is, even assuming that the type of search had been controlled for,
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the Government asks the court to accept the subtle proposition that ACSO discretionarily searches Hispanics and non-Hispanics in apparently equal proportions but actually applies different search standards to the two groups, such that ACSO should really search Hispanics relatively less frequently than non-Hispanics. Yet, the Government provided no reason why ACSO should be searching Hispanics less often than non-Hispanics. And again, while not required to do so to demonstrate discriminatory effect, the Government produced no instance in which an ACSO officer failed to meet the requisite legal standard when performing a search of a Hispanic person, which would have suggested the differing application of search standards. Cf. Floyd, 959 F. Supp. 2d at 627–28, 636–37, 640–42, 652–55 (finding multiple instances of unconstitutional searches). Officer Dockery’s testimony thus reinforces the conclusion that Dr. MacDonald’s search findings lack probative value as to the existence of discriminatory effect resulting from ACSO’s search practices.
For all these reasons, the Government has not carried its burden of proof that ACSO engages in discriminatory law enforcement in post-stop searches.
v. 287(g) Practices The evidence presented at trial also emphasized the role of ACSO’s 287(g) MOA with ICE. The Government emphasized three
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specific aspects of the 287(g) program as evidence of unlawful discrimination of Hispanics.
As an initial matter, it is not clear whether a case or controversy remains as to this claim. The 287(g) program seems to have been a driving force for the Government’s case, yet all agree that ACSO’s 287(g) authority was revoked in 2012. Therefore, there is no realistic probability that ACSO would discriminate unlawfully in any manner involving any 287(g) authority. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (holding that “threatened injury must be certainly impending to constitute injury in fact” and that “allegations of possible future injury” are not sufficient, (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (emphasis, internal quotation marks, and brackets omitted)); Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (holding that plaintiff must show “realistic danger of sustaining direct injury as a result of [a] statute’s operation or enforcement”). ACSO raised this argument pre-trial (Doc. 87 at 18 (citing Doc. 11 at 7–8)), but the court declined to dismiss that part of the Government’s claim on the grounds that ACSO’s involvement in 287(g) was nevertheless admissible at trial as to ACSO’s discriminatory intent and conduct. United States v. Johnson, 28 F. Supp. 3d 499, 506-07 (M.D.N.C. 2014). With this in mind, the court turns to the specific allegations and proof.
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First, the 287(g) program’s TFO position and investigations were cited as discriminatory. The impetus for the TFO position itself, however, came from ICE, not ACSO. ICE also told Sheriff Johnson that his deputies could serve as TFOs under the MOA. Until an ICE audit, neither ACSO nor ICE officials questioned ACSO’s authority to retain a TFO position under the MOA. One former ICE agent believed “it was purely an ICE issue as far as ICE,” adding, “Nobody did this on purpose. ICE was giving conflicting information; and once it was discovered in the management audit, as it was supposed to, it was fixed.” (Doc. 152 at 166.) The TFO position was not created for a discriminatory purpose.
The Government also argues that several investigations carried out by the TFO provide evidence of Fourteenth Amendment violations. None of those investigations, however, demonstrates an intent to discriminate on the part of ACSO. Many were instigated by or organized outside of ACSO. For example, ICE and the DEA organized and coordinated the gang roundups in the County. (Doc. 147 at 73, 75; Doc. 149 at 174; Doc. 151 at 139– 40; see also Doc. 152 at 102–03.) There is no persuasive indication that the roundups targeted anyone based on ethnicity. Cf. Melendres, 989 F. Supp. 2d at 895–905 (enjoining policy using ethnicity as factor for roundups). The investigation of Marxavi Angel-Martinez occurred only after an Alamance County
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employee reported to ACSO that a Hispanic employee at the Alamance County Library was receiving maternity benefits and food stamps illegally through another person’s Social Security number. (Doc. 149 at 180, 202; Doc. 154 at 86.) The investigation of newly-hired County employees followed a request from Alamance County Manager, David Smith, who forwarded ACSO a specific list of 17 County employees. (Doc. 149 at 182–83; Doc. 154 at 26–28.) Only after a citizen complaint of identity theft did ACSO investigate and eventually arrest Juan Ariano Vazquez for illegally using a citizen’s Social Security number. (Doc. 149 at 183–85.) Lastly, the very limited investigation of a Hispanic man following a traffic accident (assuming this even involved 287(g) authority) was entirely orchestrated by Commissioner Ann Vaughn, who “rais[ed] Cain” about an accident in which she was involved. (Doc. 154 at 76.)
The second 287(g) practice noted at trial were those investigations connected to background checks for gun permits. ACSO’s processing of gun permit applications requires review by an ACSO clerk, ACSO captains, and then approval by an ACSO major. (Id. at 38–39.) While the 287(g) program was in place, Majors Brown and Holland referred some unknown number of names to Lieutenant Denham for criminal history checks to fulfill ACSO’s legal responsibility for issuing gun permits. See N.C. Gen. Stat. § 14-404. The Government, however, did not call
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Major Holland and, when it called Major Brown as a witness, failed to ask a single question about the gun permit background checks. Moreover, while the Government points to evidence that all names submitted for background checks through 287(g)’s database sounded Hispanic, there was no evidence as to what ACSO did to investigate gun applicants and whether ACSO failed to satisfy itself as to the legal status of only those applicants it referred to ICE — which would have explained the referrals. Finally, and perhaps most importantly, neither party addresses what, if any, adverse effect these additional background checks had on gun permit applicants. The Government produced no witness testifying to effect, such as the delay in the processing or a denial of a gun permit application. The court accepts this, therefore, as some evidence of discriminatory intent, but without more, it is uncertain as to its import and thus weak proof of a Fourteenth Amendment violation.
The third aspect of the 287(g) program the Government charges as discriminatory is ACSO’s booking of individuals into the ACDC. The Government’s allegation and contention was that ACSO targeted Hispanics for arrest so that they could run Hispanic arrestees through the 287(g) program. The evidence at trial, however, did not bear this contention out. For one, while the Government claims that Sheriff Johnson changed his arrest policy after implementation of the 287(g) program to
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effectuate this effort, the arrest policy changed well before the 287(g) program began. (Doc. 147 at 33; Doc. 154 at 58–59.) Moreover, Dr. MacDonald’s evidence indicates that, following 87.9% of stops, Hispanics were not arrested, undercutting the Government’s argument that ACSO targeted Hispanics for arrest to run them through the 287(g) program.97 Finally, as to ACSO’s after-arrest conduct, there was no evidence as to how many (or few) Hispanics arrested by ACSO were booked into the ACDC and subjected to 287(g) questioning — figures almost certainly available to the Government. ACSO’s 287(g) officers in fact processed only about one detainee per week at ACSO under the 287(g) program, “the bulk” of whom actually came from other ICE offices and/or were arrested by non-ACSO officers. (Doc. 152 at 163–64.) Thus, ACSO officers contributed only infrequently to the number of ICE detainees housed in the ACDC, further discrediting the Government’s theory. To the extent the Government argues that the Sheriff had a financial motive to arrest Hispanics, therefore, the trial evidence revealed that the real financial motive for using the ACDC for a 287(g) program was the revenue to be received from housing detainees
97 Because the Government failed to provide similarly situated data or other evidence of improper arrests, there is no comparator or basis for concluding that the Hispanics arrested were subject to unlawful policing.
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brought in by ICE and the eleven other law enforcement agencies who were using the facility.
The court does not find the evidence related to ACSO’s 287(g) program to establish a pattern or practice of Fourteenth Amendment violations.
vi. ACSO’s Culture, Supervision, and Discipline
The Government also highlights evidence connected to ACSO’s culture, supervision, and discipline. That evidence appears to be directed toward showing ACSO’s discriminatory intent, and the Government makes no argument that a lack of discipline, deficient supervision, or the use of racially- or ethnicallycharged language demonstrates a discriminatory effect.
At least as to discriminatory language, courts have held that such language, while undoubtedly inexcusable, does not constitute a Fourteenth Amendment violation. See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“The use of racially derogatory language, while unprofessional and deplorable, does not violate the Constitution.”); Williams v. Bramer, 180 F.3d 699, 706 (5th Cir.) (“We hold today that an officer’s use of a racial epithet, without harassment or some other conduct that deprives the victim of established rights, does not amount to an equal protection violation.”), decision clarified on reh’g, 186 F.3d 633 (5th Cir. 1999) (per curiam). The evidence in this
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case thus falls short of demonstrating a constitutional problem, as none of that evidence was tied to any law enforcement action violating a constitutional right.
While this evidence falls short of showing a Fourteenth Amendment violation, the court would nevertheless be remiss if it failed to address the troubling nature of some of the evidence at trial. First, the language, epithets, and slurs used by some ACSO officers, particularly in the ACDC, are abhorrent and, if not ended already, should cease immediately. While most of that language was used outside the presence of the individuals to whom the language referred, that does not excuse the unprofessional and wholly inappropriate nature of that language. The court recognizes that the evidence showed that only a select number of officers used that language, and it was confined largely to the ACDC. Nevertheless, there is simply no place for the use of that type of language by government officials tasked with lawfully and justly enforcing the law.
That admonishment goes for the emailed items as well. For a department that likely had tens of thousands of emails or more, the handful of those presented were not overwhelming. However, the jokes and video game sent by ACSO officers are reprehensible, and a sheriff’s office is no place for such behavior. The court notes ACSO’s recent efforts to curb the abuse of its email system. If not prevented already, however,
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the sending of racially- and ethnically- insensitive jokes and games must stop.
Finally, the evidence at trial highlighted inconsistencies in ACSO’s discipline. Some conduct violating ACSO’s policies was disciplined, while other conduct was not. A competent, efficient, and professional functioning law enforcement organization requires consistent, regular discipline. The type of language, epithets, slurs, and emails presented at trial should be addressed in a more timely, reliable, and diligent manner.
In the context of this case, the court can only address conduct that rises to the level of a pattern or practice of an Equal Protection violation. See Lewis v. Casey, 518 U.S. 343, 358 (1996) (“It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will immediately suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and Constitution.”). As the court finds that the Government has failed to demonstrate such a claim, the court’s power and duty ends.
2. Fourth Amendment Claim The Government’s second claim under 42 U.S.C. § 14141 alleges a pattern or practice of discriminatory law enforcement
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on the part of ACSO against Hispanics in violation of the Fourth Amendment. For reasons explained in its summary judgment Order, the court ruled that the Government’s complaint alleged a Fourth Amendment claim only insofar as it related to Hispanics and failed to give Sheriff Johnson fair notice of allegations that ACSO used checkpoints generally for other unlawful purposes against all persons in the County. (See Doc. 1 ¶¶ 5, 25, 30, 41–46; Doc. 118 at 31–36 (“[A]llowing the Government to proceed as to claims of generalized unlawful checkpoints untethered to the abiding central claim of this case would unduly prejudice Johnson.”).) The court therefore concluded that “the complaint raises a proper Fourth Amendment challenge to the extent it contends that the ACSO, as part of its alleged targeting of Latinos, has conducted checkpoints with a programmatic purpose that violates the Fourth Amendment.” (Doc. 118 at 35.)
The Government contends that “ACSO conducts checkpoints for general law enforcement purposes in violation of the Fourth Amendment, and that there is a nexus between these checkpoints and ACSO’s targeting of Latinos.” (Doc. 158 at 140.) The question before this court, therefore, is whether — through its checkpoint operations — ACSO has engaged in a pattern or practice of Fourth Amendment violations involving Hispanics. To answer that question, this court looks to the Supreme Court’s
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decision in City of Indianapolis v. Edmond, 531 U.S. 32 (2000),

and its progeny for guidance.

The Fourth Amendment protects “against unreasonable

searches and seizures.” U.S. Const. amend. IV. This protection

“generally bars officials from undertaking a search or seizure

absent individualized suspicion.” Chandler v. Miller, 520 U.S.

305, 308 (1997).

While “some quantum of individualized

suspicion is usually a prerequisite to a constitutional search

or seizure,” the Fourth Amendment does not impose an

“irreducible requirement of such suspicion.” United States v.

Martinez-Fuerte, 428 U.S. 543, 560–61 (1976). Rather, in

“certain limited circumstances,” the absence of individualized

suspicion may not doom a search or seizure. Nat’l Treasury

Emps. Union v. Von Raab, 489 U.S. 656, 668 (1989); see also

Martinez-Fuerte, 428 U.S. at 560–61.

Law enforcement checkpoints sometimes fall within those

limited circumstances permitting a lack of individualized

suspicion. See Mich. Dep’t of State Police v. Sitz, 496 U.S.

444, 455 (1990) (holding a sobriety checkpoint valid under the

Fourth Amendment); Martinez-Fuerte, 428 U.S. at 560–64

(upholding a “brief” border patrol checkpoint). Not every law

enforcement checkpoint, however, necessarily withstands Fourth

Amendment scrutiny. Under the Supreme Court’s decision in

Edmond, courts should inquire as to a checkpoint’s “primary”

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programmatic purpose to determine its constitutional validity. 531 U.S. at 45–46 (“[P]rogrammatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion.”); see also Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir. 2009) (“[W]hen analyzing a search made as the result of a routine police procedure, . . . the court should examine the programmatic purpose of the policy.”).
When directing courts to ascertain the primary purpose behind checkpoints, the Supreme Court “recognize[d] the challenges inherent in a purpose inquiry.” Edmond, 531 U.S. at 46–47. Because the relevant law enforcement agency in Edmond stipulated to the primary purpose behind its checkpoint program, however, the Court provided only limited direction on how lower courts should undertake the primary-purpose analysis for law enforcement checkpoints. See id. (noting confidence in courts’ ability to make the primary-purpose determination and stating “courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful”). The Court observed that the primary-purpose inquiry requires examination of “the available evidence,” but that such an examination was “not an invitation to probe the minds of individual officers acting at the scene.” Id. at 46, 48; see also United States v.
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Gonsalves, 435 F.3d 64, 69 (1st Cir. 2006) (upholding administrative search under Edmond’s primary-purpose test, regardless of government official’s subjective intent). Ultimately, the Court held that, because the stipulated primary purpose of the relevant checkpoints was “the general interest in crime control” (i.e., drug interdiction), “the checkpoints violate[d] the Fourth Amendment.” Edmond, 531 U.S. at 48.
Cases following Edmond have since further elucidated the contours of the primary-purpose test. Specifically, the Supreme Court has held that the primary-purpose inquiry focuses on the “immediate objective” of a program, not the program’s ultimate goal. Ferguson v. City of Charleston, 532 U.S. 67, 83–84 (2001). In Ferguson, the Supreme Court applied Edmond to determine the primary purpose of a state hospital’s program of drug testing pregnant women. Id. at 70–71. “In looking to the programmatic purpose,” the Court explained, “we consider all the available evidence in order to determine the relevant primary purpose.” Id. at 81 (citing Edmond, 531 U.S. at 45–47). The Ferguson Court thus examined “the document codifying the policy” as well as “the development and application of the policy” to determine its primary purpose. Id. at 81–86. Importantly, the Court distinguished between the “ultimate” and “immediate” purposes of a program. Id. at 83–84. For the Edmond inquiry, a program’s “immediate objective,” not its ultimate goal, is the
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pertinent measure of a program’s primary purpose. Id. (“While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal.”); see also United States v. Davis, 270 F.3d 977, 982 (D.C. Cir. 2001) (“One must be careful not to fall into the trap of thinking that any ‘but for’ cause of a roadblock represents its primary purpose within Edmond’s meaning.”). The Ferguson Court thus concluded that, because the hospital policy’s “immediate objective” was unconstitutional, the policy violated the Fourth Amendment. 532 U.S. at 84–86.
Here, the Government cites no case supporting its contention that a checkpoint with the programmatic purpose of targeting members of a particular racial or ethnic group may constitute a Fourth Amendment violation as opposed to a Fourteenth Amendment violation. Nevertheless, assuming such a programmatic purpose could constitute a Fourth Amendment violation, the court concludes — based on its Findings of Fact — that the purpose of ACSO’s checkpoint operations, primary or otherwise, was not to target Hispanics.
The testimony of multiple officers inside and outside ACSO demonstrates that ACSO routinely conducted its checkpoints with lawful primary purposes, mainly for checking motor vehicle
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violations. For one, ACSO’s checkpoint policy describes the

three types of permissible checkpoints. (Gov’t Trial Ex. 113 at

2–4 (listing standard (motor vehicle), informational, and

special operations as available checkpoint options)). The

“standard” checkpoint is set up for the purpose of determining

“compliance with motor vehicle laws.” (Id. at 2.) As the

policy states, “Examples for which this [standard] . . .

checking station may be used include verification of drivers’

licenses, vehicle registration checks, insurance checks, seat

belt compliance checks, and driving while impaired checks.”

(Id.) “Informational” checkpoints function to seek information

regarding a crime, and “special operations” checkpoints focus on

the immediate apprehension of a suspect. (Id. at 3.)

The evidence showed that ACSO occasionally conducted

checkpoints seeking information; Sheriff Johnson described such

checkpoints as attempts “to get information on” a crime. (Doc.

154 at 149–50.)

Chief Deputy Britt also recalled an

informational checkpoint occurring after a series of break-ins.

(Id. at 24–25.) Other ACSO officers also confirmed they have on

occasion conducted informational checkpoints. (See, e.g., Doc.

149 at 108–09; Doc. 150 at 84 (noting that informational

checkpoints occurred but were “less common”); id. at 89–90.)

Little testimony was provided on special operations

checkpoints, which focused on specific events, such as capturing

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someone “escaped from jail” or when “somebody was on the run in the community.” (Doc. 154 at 105; see also id. at 150.) In fact, no ACSO officer stated that they had conducted such checkpoints.
The vast majority of ACSO’s checkpoints operated as standard checkpoints with the primary purpose of checking motor vehicle violations. (Doc. 150 at 84.) Most officers testified to their performance of standard checkpoints. Lieutenant Hoover testified that that ACSO’s checkpoints are “generally . . . for your . . . driver’s license or registration or insurance.” (Id. at 9.) He further stated, “The purpose of a checkpoint, [is] to check [the] validity of driver’s license, registration, insurance.” (Id. at 27–28; see also id. at 10 (“The checkpoint would be set up for driver’s license, registrations, or insurance.”).) Officer Anthony similarly testified that ACSO primarily conducted motor vehicle compliance checkpoints. (Doc. 148 at 22–23; see also Doc. 147 at 204–05 (Officer Anthony stating that, in addition to checking for valid driver’s licenses, ACSO would also conduct drunk driving checkpoints).) Officer Culler — a state highway patrol officer — recalled performing only “traffic check, drivers check” checkpoints in conjunction with ACSO. (Doc. 152 at 171–72.) Deputy Conklin reiterated that the “purpose of setting up” standard checkpoints is “motor vehicle violations.” (Doc. 150 at 82; see also id. at
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90 (“We check driver’s license and registrations . . . . We don’t set them up specifically for drugs. If we stop a vehicle and either smell or see something, that would indicate to us we move forward.”).) Finally, Sergeant Crain testified that the purpose of ACSO’s checkpoints was to “ensur[e] compliance with North Carolina motor vehicle law primarily.” (Doc. 151 at 112– 13.)
This overwhelming account of ACSO’s checkpoint practices demonstrates that the primary purposes of ACSO’s checkpoints were routinely lawful, with the vast majority of checkpoints ensuring compliance with North Carolina’s motor vehicle laws, specifically checking for licenses, vehicle registrations, and proof of insurance.
Under existing Fourth Circuit case law, such checkpoints are constitutionally valid. See United States v. Brugal, 209 F.3d 353, 357 (4th Cir. 2000); see also Edmond, 531 U.S. at 37– 38 (recognizing that Supreme Court precedent at least “suggested” that checkpoints “with the purpose of verifying drivers’ licenses and vehicle registrations would be permissible”); Delaware v. Prouse, 440 U.S. 648, 663 (1979) (indicating that “[q]uestioning of all oncoming traffic at roadblock-type stops” to check for valid driver’s licenses would be legitimate under the Fourth Amendment); United States v. Bernacet, 724 F.3d 269, 273 (2d Cir.) (finding inspection for
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driver’s license, vehicle registration, and insurance information at license checkpoint within bounds of the Fourth Amendment), cert. denied, 134 S. Ct. 806 (2013); United States v. Galindo–Gonzales, 142 F.3d 1217, 1221 (10th Cir. 1998) (same); United States v. McFayden, 865 F.2d 1306, 1310–12 (D.C. Cir. 1989) (same), abrogated in part by Davis, 270 F.3d at 981.
Similarly, checkpoints operated with the primary purpose of obtaining information about a crime are constitutionally valid. See Illinois v. Lidster, 540 U.S. 419, 423 (2004) (“The stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others.”); United States v. Faulkner, 450 F.3d 466, 472–74 (9th Cir. 2006) (upholding operation of an informational checkpoint). Similarly, and although no testimony was offered that ACSO conducted a special operations checkpoint, those checkpoints appear to be constitutional as well. See Edmond, 531 U.S. at 44 (“[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up . . . to catch a dangerous criminal who is likely to flee by way of a particular route.”); United States v. Whitehead, 567 F. App’x 758, 767 (11th Cir.), cert. denied, 135 S. Ct. 308 (2014).
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The Government’s evidence to support its contention that
checkpoints were operated with the primary purpose of targeting
Hispanics was very limited, and the little that exists is
speculative at best. As evidence of a purpose to target or
discriminate against Hispanics in ACSO’s checkpoint operations,
the Government cites Dr. Banks’ study on checkpoint arrests and
Dr. MacDonald’s hit rate study, statements by ACSO officers
about the siting of checkpoints, and two specific checkpoints.98
(See Doc. 158 at 140–42.)
First, the checkpoint studies of Drs. Banks and MacDonald
are unpersuasive to show a purpose to target Hispanics at ACSO
checkpoints. For the reasons already noted, the Government’s
use of Dr. Banks’ finding that 36.8% of ACSO’s stops at
checkpoints were of Hispanics is unreliable. Dr. MacDonald’s
study — finding that searches of stopped Hispanics at
checkpoints produced less drugs and overall contraband — failed
to show that ACSO applied different search standards based on
race/ethnicity, in large part because it suffered from omitted
98 Although not cited by the Government in its briefing as evidence of checkpoint targeting of Hispanics, there are two other alleged incidents involving ACSO checkpoints. First, according to some witnesses, Sheriff Johnson directed ACSO officers to “arrest Hispanics” at a checkpoint near a predominantly Hispanic mobile home park. (Doc. 158 at 11, 121.) Second, a witness testified that an ACSO officer misinterpreted an order by Sheriff Johnson at a checkpoint but, upon clarification, the Sheriff told officers to enforce the law in an equal manner. (Doc. 147 at 156–59.) As observed previously, those two incidents evince no purpose to target Hispanics.
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variable bias. Those studies show no purpose to target

Hispanics at ACSO checkpoints.

Second, the Government cites statements that ACSO officers

conducted checkpoints near predominately Hispanic areas. ACSO

undoubtedly set up some checkpoints near predominately Hispanic

areas. (Doc. 147 at 213; Doc. 149 at 217.) The placement of a

few of ACSO’s 435 checkpoints over the years fails to

demonstrate that those checkpoints were set up for the purpose,

primary or otherwise, of targeting Hispanics. Moreover, Dr.

Banks’ permutation study indicated that little “evidence

[existed] that checkpoints were being sited closer to Hispanic

communities than would have occurred if they were done just at

chance.” (Doc. 153 at 94–95, 99.) The trial evidence

demonstrated that ACSO administered checkpoints all over the

County.

The first incident the Government cites similarly fails to

evidence a purpose, primary or otherwise, of targeting

Hispanics. The Government cites Corporal Nicholson’s operation

of a checkpoint near Rocky Top mobile home park — a park in

which residents are predominantly Hispanic. As noted, however,

the evidence at trial demonstrated that Corporal Nicholson

conducted the checkpoint as a measure to show law enforcement

presence.

He did so in response to Sheriff Johnson’s

unspecified direction that came following the park owner’s

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complaint about a specific Mexican gang then under ACSO investigation for criminal activity and thought to be operating in the owner’s park.
Second, the Government cites the checkpoint interaction between Deputy Keller and Crotts. That interaction involved a checkpoint at which Deputy Keller (who knew Crotts) told Crotts’ husband that she did not need to see his license because “they were there to get them some,” gesturing in the direction of a mobile home park predominantly populated by Hispanics. As noted, the court finds Deputy Keller’s statement and conduct vague and Crotts’ assumption that it referred to Hispanics speculative. (See Doc. 149 at 120, 125.) Crotts admitted as much on cross-examination. (Id. at 125 (“I don’t know what [Deputy Keller] meant.”).) Moreover, even assuming that Deputy Keller’s statement referred to Hispanics generally (as opposed to perhaps certain suspects, if an informational checkpoint, or other motor vehicle law violators, if a standard checkpoint), Deputy Keller’s statement appears to be outside of Edmond’s programmatic purpose inquiry, which “is not an invitation to probe the minds of individual officers acting at the scene.” Edmond, 531 U.S. at 48.
In sum, based on the totality of the circumstances considering all the evidence adduced at trial, the Government lacks proof that the purposes of ACSO’s checkpoint operations,
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primary or otherwise, were to target Hispanics, and it certainly fails to show a pattern or practice of the same. See Int’l Bhd. of Teamsters, 431 U.S. at 336 & n.16 (holding that a plaintiff must “prove more than the mere occurrence of isolated . . . or sporadic discriminatory acts” but rather that the classifications were “standard operating procedure [—] the regular rather than the unusual practice”); cf. Monell, 436 U.S. at 690–91 (requiring proof of “persistent and widespread discriminatory practices of state officials” to demonstrate a governmental “custom” of constitutional rights deprivations under § 1983).
The Government, however, further argues that ACSO conducts checkpoints for reasons other than the purposes provided. (See Doc. 158 at 140–46; see also Doc. 1 ¶ 30.) In light of the testimony by ACSO’s officers, the Government’s claim essentially boils down to a contention that ACSO conducted pretextual checkpoints for the purpose of targeting Hispanics.
Although the Supreme Court has never explicitly so held, it has certainly implied that pretextual checkpoints would contravene the Fourth Amendment. In Texas v. Brown, 460 U.S. 730 (1983), the Court suggested that checkpoints with a pretextual lawful purpose that are in fact for an unlawful purpose are constitutionally prohibited. Id. at 743–44; see also Whren, 517 U.S. at 811–12 (“[T]he exemption from the need
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for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes.”); New York v. Burger, 482 U.S. 691, 716 n.27 (1987); Brugal, 209 F.3d at 357 (citing Brown). Prior to Edmond, which set out the primary-purpose test, several courts had held unconstitutional checkpoints that operated for pretextual lawful purposes but with actual unlawful purposes. See United States v. Huguenin, 154 F.3d 547, 558–59 (6th Cir. 1998); United States v. Morales-Zamora, 974 F.2d 149, 152–53 (10th Cir. 1992); State v. DeBooy, 996 P.2d 546, 551 (Utah 2000). Since Edmond, lower federal courts have continued to intimate that checkpoints set up for pretextual purposes are unconstitutional under the Fourth Amendment. See United States v. Knight, 306 F.3d 534, 537 (8th Cir. 2002) (“We observe, finally, that the Supreme Court has warned against administrative stops becoming pretexts for ‘crime control.’” (quoting Edmond, 531 U.S. at 40)); United States v. Gabriel, 405 F. Supp. 2d 50, 61 (D. Me. 2005) (“There is no evidence the Border Patrol was using terrorism as a pretext to operate a checkpoint otherwise forbidden by Edmond.”); see also State v. Hicks, 55 S.W.3d 515, 537–38 (Tenn. 2001). Nevertheless, because — as noted earlier in this section — the evidence at trial does not support a finding of pretextual purposes targeting or discriminating against Hispanics as part
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of ACSO’s checkpoint operations, this court need not decide whether pretextual checkpoints ultimately contravene the Fourth Amendment.
Left unclear by the Supreme Court is whether a checkpoint with an illegitimate “secondary purpose” violates the Fourth Amendment. Edmond left that question unanswered but in a footnote observed, “Because petitioners concede that the primary purpose of the Indianapolis checkpoints is narcotics detection, we need not decide whether the State may establish a checkpoint program with the primary purpose of checking licenses or driver sobriety and a secondary purpose of interdicting narcotics.” Edmond, 531 U.S. at 47 n.2; see also Anobile v. Pelligrino, 303 F.3d 107, 122 (2d Cir. 2002) (“The Supreme Court has not directly addressed the constitutionality of searches subject to a ‘mixed purpose,’ where the primary purpose is legitimate and the secondary purpose is not.”).
Only a handful of lower courts have analyzed the issue of checkpoints with secondary purposes post-Edmond. Two circuit courts addressing the issue — the Fifth and D.C. Circuits — have concluded that Edmond tolerates checkpoints having a secondary, but invalid, purpose. See United States v. Moreno-Vargas, 315 F.3d 489, 491 (5th Cir. 2002) (“We accordingly hold that Moreno’s immigration stop at the Sarita checkpoint was valid because the checkpoint has as its primary programmatic purpose
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the enforcement of the immigration laws, regardless of whether or not it could also be said to have a secondary programmatic purpose of drug interdiction.” (emphasis added)); Davis, 270 F.3d at 979–83 (“[Edmond] more than suggests that if the ‘primary purpose’ had been for a purpose the Court had already endorsed — such as detecting drunk drivers, or checking licenses — the roadblock would be constitutional.”); see also United States v. Gasca-Castillo, No. CR. 06-CR-0060-L, 2007 WL 173888, at *6 (S.D. Cal. Jan. 8, 2007); Dale v. State, 785 So. 2d 1102, 1105 (Miss. Ct. App. 2001). But see 5 Wayne R. LaFave, Search & Seizure § 10.8(a) (5th ed. 2012) (“Surely an illegal multipurpose checkpoint cannot be made legal by the simple device of assigning ‘the primary purpose’ to one objective instead of the other.”).
Furthermore, two circuit courts have upheld other administrative programs with secondary purposes when applying Edmond. The Second Circuit upheld a police department’s policy requiring a breathalyzer test for an officer causing injury or death by firing his or her gun, noting “the mere fact that crime control is one purpose — but not the primary purpose — of a program of searches does not bar the application of the special needs doctrine.” See Lynch v. New York City, 589 F.3d 94, 102 (2d Cir. 2009). The Second Circuit further observed, “[E]ven if crime control is one purpose of a program of searches, the
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program may nevertheless be reasonable under the special needs doctrine so long as crime control is not the program’s primary purpose.” Lynch, 589 F.3d at 102; see also Davis, 270 F.3d at 979–80. When analyzing the validity of a stop at a national park’s information station, the Ninth Circuit held, “While one of the information station’s purposes may have been to advance a general interest in crime control, it was not the primary purpose. Indeed, ‘the phrase general interest in crime control does not refer to every law enforcement objective.’” Faulkner, 450 F.3d at 471 (quoting Lidster, 540 U.S. at 424) (internal quotation marks omitted).
This reading of Edmond aligns with prior Supreme Court cases like Sitz and Martinez–Fuerte. See Lynch, 589 F.3d at 102 (stating that this interpretation of Edmond “derives naturally from prior case law”). In Sitz, the Court upheld the use of sobriety checkpoints with the primary purpose of “reducing the immediate hazard posed by the presence of drunk drivers on the highways.” Edmond, 531 U.S. at 39. Analyzing Sitz, the Second Circuit observed “that aiding criminal prosecutions of drunk drivers was another purpose of the checkpoints. It was simply not the checkpoints’ primary purpose.” Lynch, 589 F.3d at 102. Similarly, the Second Circuit reasoned that, in Martinez–Fuerte, while the Court held that the primary purpose of border checkpoints was “policing the Nation’s borders,” that purpose
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was likely not the sole purpose of the checkpoints. Edmond, 531

U.S. at 39. “[A]iding criminal prosecutions of smugglers of

illegal immigrants was . . . one purpose of the boarder [sic]

patrol checkpoints. It was simply not the checkpoints’ primary

purpose.” Lynch, 589 F.3d at 102.

The one wrinkle in this analysis is the Court’s footnote in

Edmond reserving the question of whether a State may establish a

checkpoint program with a valid primary purpose of checking

licenses but an invalid secondary purpose. See Edmond, 531 U.S.

at 47 n.2. That footnote, however, “seems divorced from the

rest of the opinion.” Davis, 270 F.3d at 979. The D.C. Circuit

scrutinized Edmond’s footnote in some depth, reasoning that the

footnote did not ultimately indicate that checkpoints could not

have invalid secondary purposes. Id. at 979–80. The Davis

court explained in detail:

The record in Edmond suggested that enforcement of the

drug laws was not simply Indianapolis’s primary reason

for establishing the checkpoint program, but its only

reason.

A sign near each of the checkpoints

announced: “‘NARCOTICS CHECKPOINT __ MILE AHEAD,

NARCOTICS K–9 IN USE, BE PREPARED TO STOP.’” If the

city’s only purpose was narcotics enforcement, it is

hard to explain why the Court framed the inquiry in

terms of its “primary” purpose, unless the Court

believed that it would be constitutional for a State

to “establish a checkpoint program with the primary

purpose of checking licenses or driver sobriety and a

secondary purpose of interdicting narcotics.”

Id. (citation omitted) (quoting Edmond, 531 U.S. at 47 n.2).

Based on this analysis, it appears that a checkpoint with

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an invalid secondary purpose is likely not rendered unconstitutional per se. Here, the Government’s evidence fails to establish even a secondary purpose of targeting Hispanics by a preponderance of the evidence. In sum, the Government’s § 14141 claim falls short of showing a pattern or practice of targeting or discriminating against Hispanics as part of ACSO’s checkpoint operations.
F. Statute of Limitations Sheriff Johnson argues that the four-year statute of limitations of 28 U.S.C. § 1658(a)99 applies to the Government’s § 14141 claims and that any proven discriminatory acts are discrete incidents rather than a continuing violation. (Doc. 157 at 127–29.) He therefore contends that the Government cannot predicate § 14141 liability on any acts that occurred prior to December 20, 2008, and that only three facts brought out at trial fall within § 1658(a)’s four-year limitation. (Id. at 128.) The Government’s post-trial brief presents no argument
99 Section 1658 is entitled “Time limitations on the commencement of civil actions arising under Acts of Congress” and provides:
Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues. 28 U.S.C. § 1658(a). The statute was enacted December 1, 1990, some four years before § 14141’s enactment on September 13, 1994. Therefore, by the plain language of § 1658, it applies to claims under § 14141, unless “otherwise provided by law.”
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on this issue, but the Government previously submitted briefing
countering this argument on a motion for summary judgment.
(Doc. 106.)
The court previously addressed the statute of limitations
argument but deferred ruling at the time. See Johnson, 28 F.
Supp. 3d at 504–06 (observing that statute of limitations
applies to claims and not evidence and, even assuming that
§ 1658(a)’s four-year limitations period applies, Sheriff
Johnson failed to explain how the Government’s § 14141 “pattern
or practice” claims accrued before December 20, 2008).100
Similarly, in light of the court’s determinations on the merits,
it is a moot point and the court need not do so now.
III. CONCLUSION
What has been presented to the court are the Government’s
claims that Sheriff Johnson and ACSO violated federal law under
§ 14141 by engaging in a “pattern or practice” of discriminatory
law enforcement against Hispanics in contravention of the Fourth
100 See Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 346 (4th Cir. 1994) (stating, regarding a Title VII claim, that “[s]tatutes of limitations do not operate as an evidentiary bar controlling the evidence admissible at the trial of a timely-filed cause of action”); see also 28 U.S.C. § 1658(a) (“[A] civil action . . . commenced later than 4 years after the cause of action accrues” is time barred. (emphasis added)). A “pattern or practice” claim, by definition, requires multiple acts for a claim to accrue. See United States v. City of Parma, Ohio, 661 F.2d 562, 573 (6th Cir. 1981) (holding that a pattern or practice claim “necessarily involves a number of discriminatory acts, not a particular one from which the time for bringing suit may be measured”).
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and Fourteenth Amendments.

After careful and thorough

consideration, as detailed more extensively above, the court

concludes that the Government has not met its burden of

demonstrating that they have done so. With no evidence that any

individual was unconstitutionally deprived of his or her rights

under the Fourth or Fourteenth Amendments, the Government’s case

rested largely on vague, isolated statements attributed to

Sheriff Johnson and on statistical analyses. Yet, not a single

person testified that any ACSO employee carried out any alleged

improper directive or otherwise violated any individual’s

constitutional rights — indeed, all witnesses, including those

called by the Government, denied that they ever did or knew any

ACSO officer who did. The Government’s statistical analyses

similarly failed to constitute reliable and persuasive proof of

the claims under applicable legal standards, having failed to

sufficiently compare ACSO’s treatment of Hispanics to others who

were similarly situated. In the context of the significant law

enforcement challenges facing ACSO, the Government’s evidence

falls short.

While ACSO’s law enforcement practices do not constitute an

unlawful “pattern or practice” of constitutional deprivations in

violation of federal law, the court’s decision cannot be read to

approve or condone all the conduct presented as evidence at

trial. Indeed, some of it — for example, the use of ethnic

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slurs by a few officers largely in the County jail —

demonstrated offensive and reprehensible activity that should

not be tolerated in any civil society, much less in a law

enforcement environment. Other evidence demonstrated potential

internal weaknesses in ACSO, such as lack of a system to monitor

selection of checkpoint locations, weakness in internal

reporting and condemnation of conduct that violates ACSO’s

internal policy manual, and a lack of substantive review

processes for stops and post-stop outcomes. The absence of a

finding of a violation of federal law should not be construed as

approval of the status quo, and such matters deserve immediate

attention.

For the reasons set forth herein, therefore,

IT IS ORDERED that the claims of the United States be

DENIED, that Judgment be entered for Defendant Sheriff Johnson,

and that the complaint (Doc. 1) be DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that any request for costs be filed

within thirty (30) days, pursuant to the requirements of Federal

Rule of Civil Procedure 54(d), Local Rule 54, and the Equal

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.

A Judgment in conformance with this Order will be entered

simultaneously.

August 7, 2015

/s/ Thomas D. Schroeder United States District Judge

249

 
 Rebuttal of Expert Reports Prepared by John Lamberth and John MacDonald in re United States v. Terry S. Johnson

David Banks, Department of Statistical Science, Duke University

1 Summary

DEFENDANT'S ~ EXHIBIT
I HH

The reports of Dr. Lamberth and Dr. MacDonald are flawed, and the problems are sufficiently serious that their conclusions cannot be relied upon. The major problems in Lamberth's report include (a) a false premise, (b) the lack ofrecord linkage, (c) biased estimates, and (d) problematic validity and reliability. The major problems in MacDonald's report include (a) a false premise, (b) the lack of record linkage, (c) the lack of an adequate internal benchmark, and (d) an incorrect understanding of the protocol for driver search following a stop. The impact of these mistakes is large, and is likely to invalidate their conclusions.
This rebuttal does not address the expert report of Margo Frasier, since that report did not undertake a statistical analysis.

2 Overview
Both Lamberth and MacDonald assume that the best available measure for discrimination is whether the stop and citation rates for Latinos are the same as for non-Latinos. This is a false premise: the better criterion is whether the stop and citation rates for Latinos are higher in Alamance County than they are in comparable jurisdictions. Research cited in my previous report (p. 7, 1. 15-28, and Fig. 1, p. 8, Fig. 2, p. 14) support the presumption that Latinos and non-Latinos are not equally likely to violate traffic laws. Perhaps this disparity is because ethnicity is associated with socio-economic class and driver education, both ofwhich are plausibly related to traffic violations.
In one portion of his report, Lamberth uses a different measure for discrimination. He attempts to determine whether, among the population of drivers who are violating the law, Latinos

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are stopped at higher rates than non-Latinos. But this argument assumes that all violations are equivalent-exceeding the speed limit by 5 mile per hour and 50 miles per hour are not comparable offenses. Also, Lamberth's argument rests upon visual identification of ethnicity in moving cars under variable lighting conditions-as detailed below, I believe this is not credible.
Both Lamberth and MacDonald use a list of Hispanic surnames from the Census to estimate the ethnicity of people who receive traffic citations. As shown below, ethnic classification by surname has an error rate of at least 15% to 20%. In contrast, record-linkage to the traffic stop database would have provided near-perfect matching of citation with ethnicity.
The DOJ complaint concerns traffic stops and checkpoints. Lamberth bases his analysis on citations, not the traffic stop reports. Since citations are outcomes, they cannot directly address the issue of whether the stops are inappropriate. In his report, Lamberth often uses the terms interchangeably, converting legally irrelevant citations into legally relevant stops. Further, Lamberth's counts include many, many citation charges for non-traffic offenses, such as fighting or purchasing alcohol for a minor, and these should also be irrelevant to the substance of the complaint.
Lamberth's estimates of Hispanic citation rates are biased. First, he counts each charge separately, but a citation to one individual can carry multiple charges. There is no evidence supporting Lamberth's assumption that Hispanics and non-Hispanics have the same average number of charges per citation. Second, 13 of the 22 sites he uses for his ethnic observations are inside municipalities, and officers apply discretion differently when outside their primary region of jurisdiction. But Lamberth aggregates the citation (charge) counts across all 22 sites.
Regarding validity and reliability, Lamberth reports that two of his observers, after training, showed 100% inter-rater reliability. And he asserts that his observer sampled 14,706 drivers, and was able to accurately identify their ethnicity in all but 10 cases. This observations were made under a range of lighting conditions (7:00a.m. to 1:00 a.m.), sometimes with heavy traffic, and despite tinted windshields, motorcycle helmets, and so forth. He provides no information at all on the validity of these ethnic classifications. This seems much too good to be true.
MacDonald attempts to create an "internal benchmark" in which officers with similar duties are compared to each other in order to determine if any show abnormal patterns. His methodology has been applied to study large police districts, but it breaks down in Alamance County, where
2
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there are relatively few deputies and few have similar responsibilities. A clear indication of the failure of this benchmark is that it has flagged one officer as suspicious, but not his partner, although these two had substantially similar stop and citation records with respect to Latinos and non-Latinos. Also, the other officers named in MadDonald's report as suspicious have atypical work patterns, so no internal benchmark would be appropriate for them.
Finally, MacDonald's analysis does not take account of the protocol for search. A search can occur for probable cause (e.g., if the officer smells marijuana during a speeding stop), and these searches are likely to discover contraband. Also, a search automatically occurs if a driver is arrested. Drivers without licenses who cannot establish their identity are arrested as a matter of policy, and searched incident to arrest. These searches are much less likely to discover contraband. It follows that, in aggregate, Latino searches are less likely to be productive.
There are other issues, more minor than these. Details are provided in the following specific rebuttals.
Regarding language, Lambreth tends to use the term Hispanic to describe the population which Sheriff Johnson has been alleged to profile, and MacDonald uses the term Latino. In some cases this can cause confusion (e.g., the Hispanic surname database, which is not tuned to reflect name frequencies in the Latino community). In my responses below I use the same term as the author of the report under discussion.
3 Specific Responses to Lamberth
1. (p. 2, l. 12-14.) Lamberth says: "I conducted ... statistical analyses to determine whether ACSO disproportionately stopped and cited Hispanic motorists..." As stated, his premise is misleading. If Hispanics are stopped in disproportionate numbers, it may be because they are being improperly profiled, but it may also be because they are disproportionately breaking the law, or live, work and drive in areas with higher levels of surveillance. In particular, Hispanics in Alamance County are disproportionately younger, male, and of lower socio-economic status, which are all factors that, at the national level, are associated with driving infractions.
3
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2. (p. 2, I. 17-20.) Lamberth says "The field study was conducted on the following roadways:
The three roadways Lamberth selected traverse both the city of Graham and the surrounding county. Of the 22 sites Lamberth selects, 13 are in a municipality, and thus outside the ACSO's primary area of jurisdiction. A deputy is less likely to make stops inside the city; in particular, deputies on patrol (i.e., those most likely to write traffic citations) spend their time in one of six districts, and could only perform a traffic stop inside Graham when driving between the ACSO and their district. (The exceptions are joint checkpoints run with municipal law enforcement agencies and the gang task force, both of which would charge disproportionate numbers of Hispanics.) The statistical implications of this bias in Lamberth's design are complex; spuriously high Hispanic citation rates would occur ifHispanics were more likely to work outside the city, or inside the city at hours that conespond to shift changes by the deputies.
3. (p. 2, l. 23, p. 3, l. 1.) Lamberth says "On Highway 70, Latino drivers were 7.13 times as likely as non-Latino drivers to be cited for traffic violations..." Given the biased design described in item 2, the summary rates (7 .13 times as likely on Highway 70, 6.5 times as likely on Highway 87, 6.0 times as likely on Highway 49) are not meaningful.
4. (p. 3, l. 13-17) Lamberth says"... my analysis is based on the citation database." The citation database includes many, many, charges that are not related to driving. Appendix 1 shows all the citations that occurred at Highway 87 North and Geninger Mill Road, which Lamberth used as a site and which he says had the largest number of citations on Highway 87. Lamberth treats these 92 charges as separate citations to 92 individuals, and assumes that all of these individuals are drivers. This makes two mistakes. First, out of the 92 charges, 30 of them (32.6%) are not traffic violations. Second, it is probable that some individuals received multiple charges. Both mistakes are serious and invalidate the numbers that Lamberth reports. The DOJ complaint concerns improper traffic stops and checkpoints. But Lamberth's anal-
4
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ysis includes citations for fighting, drug possession, public lewdness, and so forth. His analysis is incommensurate with the accusation.
5. (p. 3, 1. 19-20) Lamberth says"... of the 10,468 entries on the list, 13 were reported as being Hispanic."
The citation database should not include ethnicity. The state of North Carolina traffic citation form (see Fig. 2, p. 18) chooses not capture that information, and the ACSO must comply. The 13 cases in which ethnicity is recorded must be data entry errors.
6. (p. 5, 1. 9-1 0) Lamberth says "I used these [Hispanic surname] percentages to calculate the exact probability that the names in ACSO's citation database are Hispanic." The error rates in surname matching are known at the national level. For men, Wei, Virnig, John and Morgan (2006) report a true positive rate of 85% to 87%, and for women, they report a true positive rate of79% to 82%. (Gender difference is expected, since women often take the name of their husband). Thus the national false declaration rate for identifying Hispanics from surnames is between 15% and 20%. The error rate will probably be larger at the county level, since the classification rules are based on the U.S. Hispanic population, not Alamance County Latino names.
7. (p. 5, 1. 14, p. 6, 1. 1-2) Lamberth says "This percentage was used as the best estimate for the percentage of Hispanics..." This estimate of the percentage of Hispanics in the citation database is flawed. A single stop can lead to multiple charges of the same person; e.g., for driving without a license, driving under the influence, and speeding. Each of these is a separate line in the citation database. Instead ofthe 10,468 "citations" Lamberth lists (p. 3, 1. 13), there are actually 8,168 unique events, mostly corresponding to distinct individuals (but surely some people are cited more than once during this five year time period). Unless Lamberth linked citations by names and addresses, which is not stated in his report, the estimate is unreliable. If Hispanics and non-Hispanics are equally likely to commit multiple driving offenses, then Lamberth's estimate would not be biased. But if the number of citations per stop is, say, inversely related to socio-economic status, then Lamberth's technique will overestimate the number
5
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of Hispanics.
8. (p. 6, 1. 3-4) Lamberth says "As an alternative method of surname analysis..." Actually, the preferred method for estimating the proportion of (distinct) Hispanics in the citation database is to use record linkage (Fellegi and Sunter, 1969). Record linkage is a well-established tool used by the U.S. Bureau of the Census and many other statistical organizations. One writes or downloads a trivially simple program to match details in the citation database (such as date, time, officer's name, offense, and so forth) to the same details in the traffic stop report database, which also includes ethnicity (see Fig. 3, p. 19). Aside from data entry typos (which can be handled robustly) there will be virtually no error for a community of the size of Alamance County.
9. (p. 7, 1. 1-2) Lamberth says"... a court held that those motorists who were violating the law were the group that should be consdered as the benchmark for comparing police stops of motorists." Here, Lamberth is more correctly basing the claim of disproportionality upon the percentage of violators, rather than the population percentages. This is a reversal from his previous calculations, as discussed above in rebuttal 1. However, the best measure requires a riskadjusted measure of exposure, which is not available.
10. (p. 7, 1. 4-5) Lamberth says"... racial/ethnic benchmarks for roadways are quite stable for rather long periods..." In fact, the benchmark does not appear to be stable in Alamance County. The DOJ states in their complaint that the ACSO was 4 times more likely to stop a Latino on one road, 9 times more likely on another, and 10 times more likely on a third, and those roads were subsequently identified as US 70, NC 49, and NC 87, respectively. However, Lamberth finds that the ACSO is 7.13, 6.5, and 6.0 times more likely to cite a Latino driver on these roads. Presumably the differences in these numbers reflect variation between estimates from his first and second surveys.
11. (p. 7, 1. 11-16) Lamberth says "The three roadways surveyed were ..."
6
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These roads are not representative of the county, and these sites are not representative of the roads. For example, the roads are located in the northern part of Alamance County, not the south. And 13 of the 22 sites are outside the ACSO region of primary jurisdiction. This means that Lamberth's argument for disparate treatment depends critically upon his ability to identify the ethnic composition of the drivers on these roads during his surveys. (That is, his design captures non-representative demography, but he can still make his case if he is able to show that Hispanics are disproportionately stopped relative to other drivers at those locations and times. But that requires accurate observational discrimination of Hispanic and non-Hispanic drivers.)
12. (p. 9, 1. 19-20) Lamberth says "The results of three tests indicated perfect agreement between the two raters." I do not believe these results. Perfect inter-rater reliability is almost unheard of in statistics, and the same is true in Dr. Lamberth's field of psychology. In his 2013 report to the city of Kalamazoo (p. 23, footnote 18), and in his 2006 report to the Metropolitan Police Department of Washington, D.C. (p. 31, footnote 20), Lamberth says that he trains his raters to achieve an inter-rater reliability of 80%. If he has now trained raters to achieve perfect agreement, then his methodology has radically improved. Fridell (2004, chp. 9, p. 164) summarizes two studies of attempts to determine race and ethnicity from stationary observation sites of the kind used by Lamberth. Lange, Blackman and Johnson (200 1) report that a third of the data had to be discarded because race/ethnicity could not be reliably determined. Engel and Calnan (2003, personal communication to Fridell) claimed 97% agreement among raters on distinguishing "white" from "nonwhite" (during the day with clear weather).
13. (p. 10, 1. 1-4) Lamberth says " ... we encountered 14,706 vehicles, and identified the race/ethnicity in all but 10 of them." I do not believe these results either. As mentioned, Lange, Blackman and Johnson (2001) could not classify one third of the drivers in their survey. Nor can I confidently identify ethnicity under the conditions Lamberth's observer encountered (night, fog, rain, heavy
7
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traffic, overcast skies, and so forth, based on archived weather data at www. friendlyforecast. com/usa/archive/). Of the 14,706 vehicles, some surely had tinted windows, or were helmeted motorcyclists. Before I can accept the claim that all but 10 were correctly classified according to a criterion as subtle as ethnicity, I would need a gold standard test. The blinded (in the experimental design sense) observer would have to correctly identify the ethnicities of a known sample of about 100 drivers under the conditions Lamberth describes. Under these circumstances, I do not believe that Lamberth's methodology satisfies any of the five criteria needed to meet the Daubert standard for admissibility of expert witness testimony. Specifically:
• Is the methodfalsifiable, refutable, and/or testable? Lamberth's method is falsifiable, through a blinded study of the kind described above. However, he has not tested it, nor has anyone else, to the best of my knowledge.
• Has it been subjected to peer review and publication? Related work by Lamberth (Kadane and Lamberth, 2009) has been published in a peer-reviewed journal, but it focused on visual identification of African-Americans, which is an easier challenge. (Lamberth lists a 2013 paper in Population, but I was not able to find it on Google Scholar-perhaps it has been accepted but not yet published.)
• Is the error rate known? No. It is not. • Are there standards and protocols for the method? Lamberth says that he has training
procedures, but these are not specified. Lange, Blackman and Johnson (2001) and Engel and Calnon (2003) have apparently undertaken similar surveys and report wildly different levels of confident identification. I do not know of any other researchers who have established standards for guessing ethnicity in fast-moving vehicles under poor lighting conditions. • Is the methodology generally accepted in the scientific community? No, it is not.
14. (p. 10, 1. 10-11) Lamberth says "On US 70, 4.2% of violators were Hispanic; on NC 87, 4.2% ofviolators were Hispanic; on NC 49, 4.7% ofviolators were Hispanic."
8
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Lamberth is aggregating across the sites on the same road. This deviates from his previous methodology; in his 2006 report to the Metropolitan Police Department in Washington, D.C. (p. 47) he writes:
It is often helpful from a practical point of view to aggregate the data from all locations and provide an overall odds ratio. We provide this aggregate odds ratio but caution that it is for descriptive, not analytic, purposes, as not all statistical assumptions for further statistical tests can be met with these aggregated data.
Here, aggregation creates problems since the sites along the same road are in different primary jurisdictions and could easily have different usage rates between Hispanics and non-Hispanics by time of day (e.g., when a school day, or a textile mill shift, begins or ends).
15. (p. 10, 1. 14-15) Lamberth says "Hispanic drivers were violating laws at a lower rate than
they were driving on that roadway." Lamberth finds lower violation rates for Hispanics on two roads, and an insignificant difference on the third. This could be true, but it is not consistent with other studies that find higher violation rates for Hispanics. Figure 1 shows a bar chart of the ratio of the proportion of the Hispanic population that received citations to the proportion of non-Hispanics who received citations, for 11 central North Carolina counties during the 2008-2013 time period. About one-third of these counties have ratios larger than 1, indicating that Hispanics are more likely to receive traffic citations; Alamance County has the fourth largest ratio, but it is dwarfed by Randolph and Orange Counties, and much smaller than Chatam County.
16. (p. 12-17) In these pages, Lamberth summarizes his findings, providing estimates of the degree to which Latinos were targeted on three highways and at Graham Hopedale Road site.
All of these conclusions depend upon the Lamberth's benchmarks, and the benchmarks depend upon (1) his observer's accuracy in estimating ethnicity in cars driving on the highway, and (2) whether or not the drivers on the roads at the time that ethnicity is assessed
9
Case 1:12-cv-01349-TDS-JLW Document 96-34 Filed 04/07/14 Page 9 of 28

6

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Figure 1: A bar chart of the ratio of the proportion of Hispanics who receive citations to the proportion ofnon-Hispanics who receive citations, by county.

reflects the true daily mix of drivers on that road. For example, if the site is near a largely White high school and the observation time coincides with the end of the school day, then the benchmark will underestimate the number of Hispanics on the road). Also
www.maxpreps.com/high-schools/western-alamance-warriors-~
(elon,nc)/football/calendar indicates that there was a high school football game on Sept. 28, 2012 at Western Alamance County High School, which, according to
www.zillow.com/alamance-county-nc/schools/western-alamance~
-high-school-50185/
is 6% Hispanic. Lamberth's observer was at this site on that day, which could heavily salt

10

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his counts with non-Hispanic drivers.
17. (p. 12, 1. 6) Lamberth says "The citation database contained 10,467 citation numbers..." Lamberth uses the 10,468 charges in the citation database to estimate the number of Hispanic violators in these locations. But often a citation leads to more than one charge, so Hispanics (and others) are being overcounted. Additionally, of the 10,468 charges, 6,610 are not linked to a map location, and it is unclear how Lamberth uses that. In fact, the citation database includes many non-traffic offenses, such as domestic disturbance, and these have precise addresses; the cases without map locations are more likely to be traffic stops.
18. (p. 12, 1. 8-10) Lamberth says "The breakdown [in citations] by year was quite uneven." The low numbers in 2008 and 2007 are due to the transition from the Positron database management system to the OSSI system. Numbers before August, 2008 are unreliable or not available. The dip in 2011 is explained by Deputy Wilkerson's deposition (p. 57), which indicates that the Special Operations Unit lost two of the four officers in 2011, and regained them in 2012. (The Special Operations Unit assists most of the other units; in particular, they run checkpoints and do traffic patrols when not otherwise assigned.)
19. (p. 12, 1. 20-21) Lamberth says "There were 503 citations on this roadway." After removing those that occurred between 1:00 a.m. and 7:00a.m., he has 457 "stops". Here and elsewhere, Lamberth sometimes uses "citations" and "stops" interchangeably. These should be kept distinct-the DOJ complaint concerns improper stops, whereas citations sometimes result from a stop, but cannot speak to whether the stop was appropriate.
20. (p. 13, l. 7) Lamberth says "After removing these 35 stops there were 422 stops for the analysis." This is misleading in two ways. First, the wording falsely appears to address the complaint, since he claims to be counting stops, but in fact he is counting citations, which are mute about whether the stop resulted from profiling. Second, these 422 citations occurred over a five-year period starting from August, 2008. That means that on one of the busiest roads in Alamance County, ACSO deputies wrote
11
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about 1.8 tickets per week, in total. Some of these were probably written to Hispanics, but by any yardstick, this level of activity is hardly aggressive profiling.
21. (p. 14, 1. 4, 10) Lamberth describes z-scores. Lamberth's z-score calculations assume the accuracy of the benchmark, which depends upon both the incredible claims of the observer to accurate ethnic identification and the absence ofbias in the timing of the site measurements.
22. (p. 15, 1. 7) Ibid.
23. (p. 15, I. 17) Lamberth says "ACSO made 657 stops ... and 20.77% were of Hispanics." Again, Lamberth's language erroneously conflates legally irrelevant citations with legally relevant stops. Further, over the 4.5 years covered in this period, his estimate implies that on NC Highway 49 the ACSO issued 0.58 Hispanic citations per week, of which some were surely justified. This is not statistically consistent with an active policy of targeted discrimination.
24. (p. 16, I. 4-5) Lamberth says "Traffic was rather light at this particular location..." In fact, it is astonishingly light. The DOT reports 20,000 vehicles per day at that intersection; see http://www.ncdot.gov/travel/statemapping/trafficvolumemaps/ Lamberth's observer counted 380 cars during 15 time intervals of 15 minutes each, amounting to 3.75 hours. One would expect him to see approximately (3.75/24) x 20,000 = 3,125 cars (actually, one expects more, since no counts were made between 1:00 a.m. and 7:00 a.m.).
25. (p. 16, 1. 17) Lamberth says "there were 135 citations" that were within the time scope of his benchmark between US 70 and Apple Street Extension. Actually, there are 135 citation charges; some of these are surely multiple charges to the same person during a single stop. More importantly, 86 of these citation charges occurred during a checkpoint. These are not comparable to Lamberth's benchmark and should be
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excluded. (Also, Hispanics are more likely to be charged at a checkpoint for not having an operator's license.) This site is at the entrance to one of the two bridges that funnel traffic between northern Alamance County and the city of Burlington. As such, it is a commonly used checkpoint site. There is an Hispanic community near that site, but he permutation test of checkpoint locations in my original report found no evidence that Hispanic communities are targeted by checkpoint locations. This propinquity appears to be incidental, and not an intentional siting of the checkpoint near an Hispanic community.
26. (p. 17, I. 11) Lamberth compares the citation (charge) rate between Graham Hopedale Road and the nearby Apple Street Trailer Park. The Graham Hopedale Road and Apple Street Trailer Park comparison is misleading. The Graham Hopedale site is in the city, whereas the Apple Street Trailer Park is in the county; the county is their primary jurisdiction area, but not the city, so ACSO deputies will write more tickets in the county. Also, it is notable that during the five-year period in question, the ACSO issued 44 speeding citations at the Graham Hopedale site. Of these, 20 were made during a three-hour window on August 5, 2011, as part of a back-to-school crackdown on speeding. Excluding these shows that the ACSO traffic enforcement rate inside the city is low, as is consistent with this not being their area of primary jurisdiction. More broadly, it shows how much variability there can be in citation rates at one of Lamberth's sites due to exogenous circumstances.
4 Specific Responses to MacDonald
1. (p. 2, I. 27-29) MacDonald, says"... I relied upon the stop, citation, and arrest databases. Each database was analyzed separately, because there was not a unique record locator to provide an exact link across databases." As discussed under Lamberth, items 7 and 9, there is about a 15% to 20% national error rate in Hispanic surname classification, and the preferred method for this situation would be Fellegi-Sunter record linkage. Linkage would have shown the ethnicity perceived by
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the deputy. Free on-line software for record linkage is available (e.g., FRIL from Pawel Jurczyk at Emory University, or the -1 ink- king. com) but this case is simple with well-structured data fields, so I think an undergraduate could program it in a few hours.
2. (p. 3, l. 14) MacDonald shows the regression equation that he uses on multiple occasions. In MacDonald's equation, the response variable 'Outcome' is a probability and must lie between 0 and 1. But the righthand side of the equation is a standard multiple regression, which can give negative values or values greater than 1. I am sure that MacDonald must know that the traditional model in this situation is logistic regression, in which the Outcome probability is transformed as ln Outcome/1- Outcome and then fit by a multiple linear regression model. Even so, the analyst should make some assessment of whether the model provides a good fit to the data.
3. (p. 4, l. 5-7) MacDonald accepts the false premise that Latinos should be stopped and cited at the same rate as non-Latinos.
If the results reported had been obtained from an appropriate logistic regression analysis, then the numbers would still not necessarily indicate profiling or prejudice. First, the DOJ allegation is that ACSO deputies are stopping Latinos in a discriminatory way; but MacDonald's analysis only concerns outcomes after the stop, and these depend upon other factors. Second, essentially all vehicle stops (both checkpoint and traffic) require that one show license and registration; by NC law, undocumented Latinos do not have that, necessarily leading to higher rates of citation or arrest that are unrelated to to reason for the vehicle stop. Finally, it is quite possible for different ethnicities to have different degrees of criminal behavior, resulting in more citations or arrests for the same reason behind the stop; e.g., criminal behavior is often associated with low socio-economic status. So a stop for a Latino driver who is following too closely may disproportionately find that there is no driver's license, or a DUI violation, or the possession of drug paraphernalia. Referring back to Fig. 1, the frequent large excess in Latino citations calls into question MacDonald's assumption that the correct benchmark for Latino citation counts is nonLatina citation counts.
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4. (p. 4, I. 8-12, and I. 26) MacDonald says "The significant differences between Latinos and non-Latinos in the contraband yields of searches suggests that officers are applying a lower threshold for searching Latinos." MacDonald misunderstands the arrest protocol. When a driver arrested for not having a driver's license, or for intoxication, or for any other reason, the driver is automatically searched for weapons, drugs and so forth, even though there is no expectation that such will be found.
The fact that 85% of Hispanic surnamed searches do not find drugs probably reflects the fact that Latinos are much more likely to be driving without a license, or more likely to be arrested for offenses not related to contraband (seep. 7, 1. 15-28 of my initial report).
5. (p. 4 1. 28) MacDonald cites at-statistic. I am sure the MacDonald knows that the t-test is not appropriate for comparing proportions. When my undergraduates do this, they are marked wrong. The correct large-sample test is the z-test, and if accuracy is important, one numerically integrates the beta function or uses the Clopper-Pearson tables, both of which are easily available on various websites.
6. (p. 5, 1. 2-3) MacDonald says "This approach [controlling for the reason for the stop] removes any observable difference in search outcomes that may be driven by differences in the reasons for stopping drivers." MacDonald's approach does not remove differences in search outcomes by controlling for the stop reason. If a Latino and a non-Latino driver are both stopped for speeding, the Latino driver will be less likely to produce a driver's license. ACSO deputies are directed to arrest a driver whose identity cannot be verified (since citations ought not be written to a fake identity). Often, there are alternative ways for the driver to self-identify; e.g., if the driver owns a license but left it at home, the deputy can access the picture on-line. (Since ACSO writes many NOL citations, clearly many people are able to establish their identity in some alternative way.) But if the driver has never had a license, then the challenges are substantially greater; unsurprisingly, undocumented immigrants will fail in greater proportions.
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This leads to ethnically disproportionate driver and vehicle searches, but searches incident to NOL arrest are unlikely to find drugs, creating a large difference in search outcomes.
7. (p. 5, 1. 8-16) MacDonald provides estimates for disparity in the Latino outcomes for citations and arrests. All of these claims are based upon a flawed regression model, and all concern post-stop outcomes, which are not the basis for the complaint against the ACSO. But if one ignores those points, MacDonald is assuming that the offense rate for Latinos should be the same as for the non-Latina community, and there is no factual basis for that assumption.
8. (p. 5, 1. 29) MacDonald gives more detail about the regression analysis he used in studying the productivity of searches. MacDonald's footnote 4 indicates that, in this case, he also used a logistic regression model. This model is preferable to his other regression analyses, which use standard multiple regression models that are inappropriate for estimating percentages or probabilities.
9. (p. 5, 1. 31) MacDonald describes an ANOVA test. It appears that MacDonald did a one-way ANOVA with zeros and ones as the dependent values. This is not appropriate; one uses an arcsine square-root transformation to normalize data that are proportions, but the best method is described in Miller (chp. 6).
10. (p. 6, 1. 7-16) MacDonald argues for the soundness of his use of differential discovery rates in contraband searches to provide evidence for prejudicial policing. As mentioned previously, the protocol for search after arrest implies that searches of Latinos will necessarily be less productive. A stop for speeding could lead to an NOL arrest and a search incident to arrest, or a consent search, or the officer may develop probable cause to search. MacDonald should have used data from the field in the search form (see Fig. 4, which is on the back of the Traffic Stop form). This form indicates the reason for the search, showing whether or not there was an expectation that contraband would be discovered, or whether the search was incident to arrest. MacDonald's Nash equilibrium argument is rebutted by many, many papers in behavioral
16
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economics (cf. Camerer, 2003); people are simply not rational expected utility maximizers (e.g., they often take foolish chances). MacDonald agrees with me that there are racial differences in offense rates and kinds (1. 15-16), but he is wrong to suppose that conditioning on the reason for the stop controls for those differences.
11. (p. 6, 1. 18) MacDonald compares the mean percentages of Latino searches that find drugs with non-Latina searches that find drugs. This is a problematic comparison. MacDonald includes only drivers in his statistical test, but his "findings of contraband" data includes contraband found on passengers. We do not know how many cars had passengers, the number of passengers, and how that may be related to the initial violation that triggered the stop. In a traffic stop, there is normally no reason to search a passenger. A passenger would be searched only if there were probable cause; e.g., if there is marijuana smoke in the vehicle. In those circumstances there is high probability that contraband will be found, and MacDonald will count this as a productive search. This tends to increase the rate of productive searches among non-Latina drivers, creating a spuriously large disparity with Latino drivers who are searched incident to arrest for, say, an NOL violation.
12. (p. 6, 1. 33) MacDonald reports at-statistic. Again, MacDonald performs at-test instead of the conventional z-test or Clapper-Pearson test.
13. (p. 7, 1. 4-6) MacDonald reports an ANOVA test. MacDonald reports an ANOVA that compares 10 types of stop counts between Latino and non-Latina drivers. Presumably he has one count for each type-ethnicity combination, which would make it impossible to do ANOVA. Perhaps he is taking the annual counts, or some such thing, but that would not be a clumsy workaround; instead he wants to do a multiple comparisons test of the kind described in Miller (chp. 6). More strongly, comparing contraband yields gives a biased comparison. As previously described, Latinos are less likely to have licenses, thus more likely to be searched incident
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to arrest, and unlike other searches, search incident to arrest is not purposed to discover contraband.
14. (p. 7, 1. 13-23) MacDonald compares the checkpoint stop rate between Latinos and nonLatinos, and the rates of contraband discovery. I've been over this before, and apologize for being tedious. The issue arises on the subsequent page and in the summary, but I shan't address it again. At essentially all checkpoints, drivers must show their licenses. Those without a license are either arrested or cited, de-
pending upon whether they can prove their identity in some other way. If arrested, the
driver is automatically searched, without expectation ofcontraband. So Latinos will have higher rates ofnon-contrabandsearches. The high rate of checkpoint-initiated Latino stops compared to non-Latinos is consistent with this explanation. During this five-year period, 188 of the 454 (41%) Hispanic traffic stop searches were incident to arrest, and for these searches discovery of contraband would not be a usual expectation. In contrast, among non-Hispanics, 484 of 2,309 traffic stop searches (21 %) were incident to arrest. Since a much higher proportion of Hispanics are searched incident to arrest at traffic stops, difference in the rate of productive search is not a sign of profiling or targeting. Similarly, at checkpoint searches, 58 out of 91 (64%) Hispanic searches are incident to arrest. For non-Hispanics, 70 out of 345 (20%) checkpoint searches were incident to arrest. Again, Hispanics are being searched more often in circumstances where contraband is not expected. Thus, a difference in the rates of productive search is not a sign of profi1ing or targeting.
15. (p. 9, 1. 2-4) MacDonald says "The internal benchmark method used in this assessment is similar to the one applied in ... Cincinnati, Ohio and New York City." Coincidentally, I was the editor of the Journal ofthe American Statistical Association when Ridgeway and MacDonald's paper on doubly robust internal benchmarking was accepted. It is a good paper, but requires a much larger population of similar officers in order to reach reliable conclusions. Specifically, police departments in Cincinnati and New York City
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have many more officers than does the ACSO. The critical issue is how to construct the weighted comparison group of officers. MacDonald's report does not detail the weighting scheme, but since there is typically one officer per shift in each of the six districts for which ACSO has primary jurisdiction, and since those districts vary in ethnicity, workforces, road types, and so forth, it is difficult to believe that one could could construct a valid weighted comparison group (this could be checked by a simulation study, of course). And since many factors change over the course of a day, one cannot even use the three officers assigned to same district during different shifts as the comparators. One example of the difficulty in using this methodology is Deputy Troy Anthony, who is later identified as an outlier. During this time period he was assigned to Patrol, to Special Operations, and to Vice. His comparison group should be a time-weighted mixture of officers with similar duties.
16. (p. I 0, I. 7-8) MacDonald says "A total of 12 officers were flagged as statistical outliers..." As indicated in footnote 26, the criterion for being an outlier is based upon the normal or 'bell-shaped' distribution. But deputies in the ACSO have very different duties; MacDonald rightly excludes those who make very few stops, but among those who made 50 or more, it would be quite plausible for the distribution to be multimodal. In that case, use of a z-score criterion would tend to flag those officers whose duties led them to make more stops.
17. (p. 10, l. 22-23) MacDonald says "Out of 10,409 citations ... only 13 were reported as ... 'Hispanic'." The ACSO, as required by the state ofNorth Carolina, follows the U.S. Census Bureau in distinguishing race from ethnicity. The 13 reports of 'H' and the one report of 'Latino' are data entry errors.
18. (p. I 0, I. 29-30) Some of these 12 officers were in the ACSO task force on gangs, or at checkpoints, or perhaps assigned to districts with larger Latino populations. These would naturally seem different from colleagues with other duties. More broadly, MacDonald's inclusion criterion is 50 or more stops during a five-year period
19
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is problematic. This will include many officers whose duties rarely entail traffic stops. A deputy who worked a checkpoint once during this five year interval could easily have five Latino citations, or a 10% rate. Finally, MacDonald only considers citations that are linked to specific locations. But this actually excludes many traffic stops, where no street number or geolocation is automatically available. From MacDonald's description of his protocol, he is including, for example, nearly all of the (many) citations written by Jon Villanova, a School Resource Officer, that are located at the school address. But these citations are drugs, fighting, and so forth, and not for traffic offenses.
19. (p. 11, 1. 1-7) MacDonald describes his use of surnames to estimate the ethnicity of people in the citation database. I have already indicated my concerns about the use of surname matching rather than record linkage.
20. (p. 11, 1. 8-16) MacDonald applies his benchmarking method to citation data. The issues previously stated regarding the internal benchmarking method for stops also apply to citations. It appears that this analysis attempted to control for time of day, but almost surely pooled across districts and perhaps duties. MacDonald focuses on specific offenses-inspection, NOL, speeding, and "other". If Latinos are more likely to commit some of these offenses, then MacDonald's comparison is unfair. And at least the NOL offenses are more likely to be committed by Latinos.
21. (p. 10, 1. 17-18) MacDonald applies his benchmarking method to arrest data. Looking at arrests by deputies who have made 50 or more stops is misleading. It would be better to look at arrests that stem from traffic stops. As it stands, MacDonald's method would include officers who made 50 traffic stops, but all of whose arrests resulted from serving warrants for, say, failure to appear.
22. (p. 11, I. 22-23) MacDonald names three officers as outliers. I agree. Outliers should be scrutinized.
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In this case, I note that Deputies Wilkerson and Ray were the two ACSO officers with primary responsibility for checkpoint operations during most of this time period. Since MacDonald finds that most Latino stops occur at checkpoints, it is not surprising that Wilkerson stands out from the rest, but it is surprising that Ray does not. Ray had 1440 stops and 1073 citations; Wilkerson had 1656 stops and 1032 citations. From the traffic stop database, Wilkerson stopped 233 Hispanics over a five-year period (less than one per week). Ray stopped 256 Hispanics. So although Ray stopped fewer people than Wilkerson, the traffic stop database shows he stopped more Hispanics. If MacDonald's methodology were sound, and if it validly mapped a connection between legally irrelevant citations and legally relevant stops, then it should surely have flagged Officer Ray as an outlier. Officers Ray and Wilkerson worked together; their duties and outcomes were almost identical, and they should have been compared to the same control group. Any anlysis that flagged one should have flagged the other.
Regarding Officer Anthony, he made 460 stops, with 315 citations and 173 arrests. According to his deposition, he primarily worked in the Special Operations group, which chiefly back up other units. Their single most common task is traffic enforcement, and they usually run checkpoint operations. As indicated by data from other central North Carolina counties, both activities are more likely to lead to stops and citations for Latinos. Regarding Officer McGill, she wrote 260 citations and made 408 charges (not citations). Her number of citations is not unusual: Officers Anthony, Apple, Gaither, Wilkerson, Ray and others have all cited more people than she. But Officer McGill is unusual in that she writes multiple charges per citation. Since MacDonald confuses charges with citations, his analysis makes her stand out. But there is no evidence that she is stopping or checkpointing an unusually large weight-adjusted proportion of Hispanic drivers, which is the conclusion that MacDonald reaches.
In short, for at least two of the outlier deputies, their duties were such that one would expect large numbers of Latino stops, citations, and arrests. It appears that the weighted comparison group did not succeed in creating a valid internal benchmark.
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5 References
Camerer, C. (2003). Behavioral Game Theory, Princeton University Press, Princeton, NJ.
Fellegi, Ivan; Sunter, Alan (1969). "A Theory for Record Linkage," Journal of the American Statistical Association, 64, 11831210.
Kadane, J. B. and Lamberth, J. (2009). "Are Blacks Egregious Speeding Violators at Extraordinary Rates in New Jersey?" Law, Probability and Risk, 8, 139-152.
Lange, J. E., Blackman, K., and Johnson, M. (2001). Speed Violation Survey of the New Jersey Turnpike: Final Report. Report submitted by the Pacific Institute for Research and Evaluation to the Office of the Attorney General, State ofNew Jersey, December 13
Miller, R. G. (1981). Simultaneous Statistical Inference, Springer-Verlag, New York, N.Y.
Fridell, L. (2004). By the Numbers: A Guide.for Analyzing Race Data.from Vehicle Stops, Police Executive Research Forum, Washington, D.C.
Wei, Virnig, John and Morgan (2006). "Using a Spanish Surname Match to Improve Identification of Hispanic Women in Medicare Administrative Data," Health Services Research, 41, 14691481.

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0 10. By failing to see before (sW110Q) (stopping) (!umlrJQ from a dirac! !lne) ltla1 StJCh movom<m! couk.l be made 111 safety G S 20-154
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t; ACKNOWI...EOGME.IfTINONR~SIOENT PERSONAL RECOGNIZANCE FOR APPEARANCE ,j:,
I acknowledge receipt ol lhls Citabon U and 1promose 10 appear 1n the named court a1
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ALAMANCE CO. SHERIFF
Agency Name
ALAMANCE
County of Stop

Date (Month/Day/Year) Officer ID Number

Time

City of Stop

Part I

Initial Purpose of Traffic Stop (check only one)

D Checkpoint D Driving While Impaired D Investigation

D D Other Motor Vehicle Violation

Stop Light I Sign Violation

D Safe Movement Violation

D Vehicle Equipment Violation

D Seat Bell Violation

D Vehicle Regulatory Violation

D Speed Limit Violation

Vehicle Driver Information

Driver's Age _ _ Driver's Race D

Driver's Sex Driver's Ethnicity

D Male

0

0 Non-

0

Hispanic

Native
White D Black D American

D Asian

Female

Hispanic (Person of Mexican, Puerlo Rican, Cuban, Central or South American, or other Spanish Culture)

D Other

- Enforcement Action Taken as a Result of the Traffic Stop (check only one)

D Citation Issued

D On-View Arrest

If arrest made, who was arrested?

D No Action Taken

D Verbal Warning

D Driver

D Written Warning

D Passenger{s)

Physical Resistance Encountered Did Officer(s) encounter any physical resistance from Driver and/or Passenger(s)? Did Officer{s) engage in the use afforce against the Driver and/or Passenger(s)? Did injuries occur to the Officer(s) as a result of the stop? Did injuries occur to the Driver as a result of the stop? Did injuries occur to the Passenger{s) as a result of the stop?

D Yes D No D Yes D No D Yes D No D Yes D No
D Yes D No

Vehicle/Driver/Passenger(s) Search
Was a search initiated subsequent to the traffic stop? "If search was Initiated, complete Part II

D Yes' D No

SBI-122 (Rev. 12/09)

Figure 3: The North Carolina Traffic Stop Form.

24
Case 1:12-cv-01349-TDS-JLW Document 96-34 Filed 04/07/14 Page 24 of 28

Traffic Stop Report
Part !I

Type of Search (check only one)

0 O Consent

Search Warrant

D Probable Cause

0 Search lnctdenl to Arrest

O Prole clive Frisk

Basis for Search

0 0 ErraliciSusplcious Behavior

0 lnformanrs Tip

0

Observallon of Suspected Contraband Other Official Information

0 Suspicious Movement 0 Witness Observation

Person(s)Nehlcle Searched
Was the Vehicle Searched? Was the Driver Searched? Was a Passenger(s) Searched? Were the Personal Effects of the Driver and/or Passenger(s} Searched?

0 Yes 0 No 0 Yes 0 No 0 Yes 0 No 0 Yes 0 No

Identify the sex, race, a11d ethnlclty of each passenger searched

Passen er 1 Passen~er 2 Passen er3 Passenger4

---~A~a····~--+---~S~ex~--+----r---,~R~a~re~----,----+--~E~th~n·~~~iiL_Non·----­
Nalive Male female White Black American Asian .9ther Hispanic ...!il~
--

Contraband Found

0 Contraband found as a result of the search:

None OR complete the following:

0 Drugs

_____Ounces

Pounds -·~---Dosages

Grams

Kilos

0 Alcohol

_____Pints

Gallons

0 Money 0 Weapons

~-----Dollar Amount Number of Weapons

0 Other

_____Dollar Amount

Property Seized

Property seized as a result of tho search:

0 None OR complete the following:

0 0 0 Motor Vehicle

Personal Property

Other Property

SBI-122 (Rev. 12/09)
Figure 4: The North Carolina Search Form (on the back ofthe North Carolina Traffic Stop Form.

25
Case 1:12-cv-01349-TDS-JLW Document 96-34 Filed 04/07/14 Page 25 of 28

Appendix A: All 93 citations from U.S. 87 North and Gerringer Mill Road, between July 7, 2008 and October 4, 2013. Lamberth identifies this location as having the most citations on Highway 87. It is one of the sites used in his ethnic observation study.
26 Case 1:12-cv-01349-TDS-JLW Document 96-34 Filed 04/07/14 Page 26 of 28

87 N I DURHAM ST EXT

PWISD MARIJUANA

HWY 87 N I OLD 87

INSPECTION - EXPIRED

HWY 87 N I OLD 87

NO OPERATOR LICENSE (MOTORCYCLE)

HWY 87 N I OLD 87

INSPECTION- EXPIRED

HWY 87 N I OLD HWY 87

DISPLAY FICTITIOUSIREVOLKEDISUSPENDED REGISTRATION

N NC 87 I GERRINGER MILL RSPEEDING- EXCEEDING STATED LIMIT

1731 N NC HWY 87 I WESTER RECKLESS DRIVING

NC 87 N I OLD 87 HWY

SPEEDING- EXCEEDING STATED LIMIT

N NC 87 HWYIOLD NC 87 HW SPEEDING- EXCEEDING STATED LIMIT

N NC 87 HWYIFARMINGTON LSPEEDING- EXCEEDING STATED LIMIT

N 87 I GARRISON MILL

SEAT BELTS MANDATORY ADULT

N 87 I GERRINGER MILL RD DRIVING WHILE LICENSE REVOKED

87 I BARBER RD

SPEEDING- EXCEEDING STATED LIMIT

N NC 87 HWYIPHIBBS RD NO OPERATOR LICENSE

N NC 87 HWY

LARCENY

N 87 HWY I NORTHCREST OJ:; DRIVING WHILE LICENSE REVOKED

GERRINGER MILL RD IN 87 HSPEEDING- EXCEEDING STATED LIMIT

C HWY 87 I WESTERN HIGH ~WEAPONS ON CAMPUS OR OTHER EDUCATIONAL PROPERTY

N NC 87 HWY I WESTERN HICASSAULT INFLICTING SERIOUS INJURY

N NC 87 HWY

TRESPASS (SECOND DEGREE)

N HWY 87 I ELDON CT

DISPLAY FICTITIOUSIREVOLKEDISUSPENDED REGISTRATION

N HWY 87 I BARBER RD

SPEEDING- EXCEEDING STATED LIMIT

N NC 87 HWYIBARBER RD DRIVING WHILE LICENSE REVOKED

N 87 HWY I PHIBBS RD

LIQUOR-POSS BY MINOR

N 87 I DURHAM ST

SPEEDING- EXCEEDING STATED LIMIT

DURHAM ST IN 87 HWY

DRIVING WHILE LICENSE REVOKED

N 87 HWY I GERRINGER MILL SIMPLE ASSAULT

DURHAM ST IN 87

SPEEDING- EXCEEDING STATED LIMIT

N NC 87 HWY

ASSAULT-SIMPLE

87 N I PHIBBS RD

DRIVING WHILE LICENSE REVOKED

N 87 HWY I GERRINGER MILL POSSESSION OF DRUG PARAPHERNALIA

N NC 87 HWYIGERRINGER Ml POSSESSION OF DRUG PARAPHERNALIA

HWY 87 NIGEERINGER MILL LIQUOR-POSS BY MINOR

N 87 HWYIGERRINGER MILL I SIMPLE ASSAULT

N NC 87 HWYIGERRINGER Ml SPEEDING- EXCEEDING STATED LIMIT

WAHSI 1731 N NC 87

OBSCENITY- EXHIBITING HARMFUL PERFORMACE- MINORS

N 87 HWYIGERRINGER ST NO OPERATOR LICENSE

WESTERN ALA HIGH SCHIN 8 POSS MARIJUANA UP TO 112 OZ

WESTERN ALA HIGH SCHIN 8ASSAULT INFLICTING SERIOUS INJURY

N NC 871GERRINGER RD

DRIVING WHILE LICENSE REVOKED

N 87 HWYIOLD NC 87

NO OPERATOR LICENSE

N 87 HWYIDURHAM ST EXT NO OPERATOR LICENSE

N NC 87 HWYIGERRINGER Ml DISPENSING PRES DRUG WIO LICENSE AS PHARMACIST

N NC 87 HWYIGERRINGER Sl SPEEDING- EXCEEDING STATED LIMIT

N 87 HWYIGERRINGER MILL I INSPECTION - EXPIRED

DURHAM STIHWY 87 N

SPEEDING- EXCEEDING STATED LIMIT

N 87 HWYIELDON LN

DRIVING WHILE LICENSE REVOKED

N 87/0LD 87

DISPLAY FICTITIOUSIREVOLKEDISUSPENDED REGISTRATION

N 87 NC HWYIBARBER RD LITTERING

N NC 8710LD NC 87

DISPLAY FICTITIOUSIREVOLKEDISUSPENDED REGISTRATION

N 87 HWYIPHIBBS RD

SPEEDING- EXCEEDING STATED LIMIT

DURHAM ST EXTIN NC 87 HV\ LITTERING

N NC 87 HWYIOLD NC 87 HW' POSS MARIJUANA UP TO 112 OZ

HWY 87NIHILLVIEW FARM RC SPEEDING- EXCEEDING STATED LIMIT

N 87 HWY I OLD 87

SPEEDING- EXCEEDING STATED LIMIT

Case 1:12-cv-01349-TDS-JLW Document 96-34 Filed 04/07/14 Page 27 of 28

N 87 HWY I GERINGER MILL FDRIVING WHILE LICENSE REVOKED

N 87 HWY I BARBER RD

CARELESS AND RECKLESS DRIVING

N NC 87 HWY/BARBER RD FOLLOWING TOO CLOSELY

N 87 HWY I OLD 87

NO FINANCIAL RESPONSIBILITY

N 87 HWY I BARBER RD

SPEEDING- EXCEEDING STATED LIMIT

N 87 HWY I ELDON

NO OPERATOR LICENSE

DURHAM ST EXT IN NC 87 INSPECTION- EXPIRED

N NC 87 HWY/GERRINGER Sl DRIVING WHILE LICENSE REVOKED

DURHAM ST EXT IN 87 NC DRIVING WHILE LICENSE REVOKED

OLD NC 87 HWYIN NC 87 HW' DRIVING WHILE LICENSE REVOKED

N NC 87/GERRINGER

OPEN CONTAINER-PROHIBITED

N 87 NC I BROKEN ARROW Ll NO OPERATOR LICENSE

NC 87 NIPHIBBS RD

CARELESS AND RECKLESS DRIVING

N 87 HWY I GERRINGER MILL SPEEDING- EXCEEDING STATED LIMIT

N NC 87 HWY

SALE/GIVE F-WN/LQ/MXBV TO <21

N 87 NC I OLD 87 NC

DRIVING WHILE LICENSE REVOKED

N 87 NC HWY I KANGAROO G POSSESSION OF DRUG PARAPHERNALIA

N NC 87 HWYIGERRINGER Ml CARRYING CONCEALED GUN

N 87 NC I GERRINGER MILL NO OPERATOR LICENSE

N 87 HWY I ELDON DR

NO OPERATOR LICENSE

N NC 87 HWYIOLD NC 87 HW' DISPLAY FICTITIOUS/REVOLKED/SUSPENDED REGISTRATION

DURHAM ST EXT/N NC 87 HV\ SPEEDING- EXCEEDING STATED LIMIT

N NC 87 HWYIELDON DR DRIVING WHILE LICENSE REVOKED

GERRINGER MILL RD/N NC 8~ SPEEDING- EXCEEDING STATED LIMIT

N NC 87 HWY/BARBER RD DISPLAY FICTITIOUS/REVOLKED/SUSPENDED REGISTRATION

N NC 87 HWY I ELDON DR DISPLAY FICTITIOUS/REVOLKED/SUSPENDED REGISTRATION

N NC 87 HWY/OLD NC 87 HW'OPERATING VEHICLE ON HIGHWAY WITHOUT REGISTRATION

N NC 87 HWY KANGAROO PERSON OVER LAWFUL AGE AIDING MINOR TO BUY ALCOHOL

N NC 87 HWY KANGAROO PERSON OVER LAWFUL AGE AIDING MINOR TO BUY ALCOHOL

N 87 HWY I N CREST MARKEl PERSON OVER LAWFUL AGE AIDING MINOR TO BUY ALCOHOL

N NC 87 HWY/DURHAM ST E)c FAILURE TO DIM ETC. BEAMS OF HEADLAMPS

N NC 87 HWY/FARMINGTON LDRIVING WHILE LICENSE REVOKED

N 87 NC I GERRINGER MILL DRIVING WHILE LICENSE REVOKED

N NC 87 HWYIELDON DR PASSING- IMPROPER (WHERE SIGNS FORBID)

N NC 87 HWY/GERRINGER Sl OPEN CONTAINER-PROHIBITED

N NC 87 HWY/GERRINGER Ml DISORDERLY CONDUCT (NON-SPECIFIC) DISTURBING THE PEACE

N NC 87 HWY/GERRINGER Ml ENGAGING IN FIGHTING IN PUBLIC
GERRINGER MILL RD/N NC s·, INSPECTION· EXPIRED

Case 1:12-cv-01349-TDS-JLW Document 96-34 Filed 04/07/14 Page 28 of 28

 
 Departamento de Justicia de los Estados Unidos División de Derechos Civiles

TEP:RLA:JMS:AS:SKT:MJS DJ 207-54M-4

950 Pennsylvania Ave, NW Washington DC 20530
18 de setiembre de 2012

VIA CORREO ELECTRÓNICO Y FEDERAL EXPRESS
Clyde B. Albright Procurador del Condado Departamento Legal, Condado de Alamance 124 West Elm Street Graham, Carolina del Norte 27253
Chuck Kitchen Despacho Legal Turrentine 920-B Paverstone Dr Raleigh, Carolina de Norte 27615
Re: Investigación realizada por Estados Unidos sobre la Oficina del Sheriff del Condado de Alamance
Estimados Sr. Albright y Sr. Kitchen:
La División de Derechos Civiles (“División”) ha culminado su investigación sobre los alegaciones de violaciones de derechos civiles llevadas a cabo por la Oficina del Sheriff del Condado de Alamance (“ACSO”, por sus siglas en inglés). Hemos descubierto que ACSO ha efectuado actividades que conforman un patrón o práctica de violaciones a la Constitución de Estados Unidos y a las leyes federales. Nuestra investigación se enfocó en el cumplimiento de la Ley de Control de Crímenes Violentos y Orden Público de 1994, 42 U.S.C. § 14141 (“Sección 14141”) y el Título VI de la Ley de Derechos Civiles de 1964, 42 U.S.C. § 2000d (“Título VI”) y las reglamentaciones implementadas según el Título VI, 28 C.F.R. § 42.101 – 42.112. La Sección 14141 prohíbe a las agencias del orden público, tales como la ACSO, involucrarse en actividades que conforman un patrón o práctica de violaciones a la Constitución o leyes de los Estados Unidos. El Título VI y sus reglamentos derivados aplicables prohíben la discriminación según raza, color u origen a quienes reciben asistencia financiera federal, tales como la ACSO.
En junio de 2010, notificamos al Condado de Almanace y al Sheriff Terry S. Johnson sobre nuestra investigación acerca de los alegatos de políticas discriminatorias y búsquedas y aprehensiones inconstitucionales. Por lo general las agencias de orden público cooperan con nuestras investigaciones, sin embargo la ACSO y el Condado de Alamance han dilatado persistentemente la entrega de información importante y de este modo han obstruido la investigación de la División. La ACSO y el Condado no han brindado los archivos y las pruebas documentales solicitadas durante meses y se han rehusado a permitir que los representantes legales de los Estados Unidos entrevisten al personal actual y anterior de la ACSO sin que

hubiera un abogado presente. La División procuró tener entrevistas privadas debido a que numerosos oficiales actuales y anteriores expresaron tener miedo a que el Sheriff Johnson u otros oficiales del Condado o de la ACSO pudieran tomar represalias contra ellos si cooperaban con la investigación. Luego de repetidos intentos de resolver esta disputa sin llegar al litigio, la División presentó una acción de sentencia declaratoria en junio de 2011 para obtener una orden judicial declarando que dichas entrevistas cumplen con lo establecido en el Reglamento de Conducta Profesional de Carolina del Norte.1
A pesar de la falta de cooperación de la ACSO y del Condado de Alamance, la División ahora ha reunido suficiente información sobre las prácticas de la ACSO, lo cual le permite realizar estos hallazgos. Durante la investigación, para la cual se contó con el apoyo de expertos líderes en prácticas policiales y análisis estadísticos, revisamos las prácticas policiales de la ACSO, sus procedimientos y materiales de entrenamiento, así como también los datos sobre procedimientos de infracciones de tránsito tales como detenciones, arrestos, citaciones, puntos de control vehicular y otras pruebas documentales. También entrevistamos a más de 125 individuos, incluyendo a residentes del Condado y a empleados actuales y anteriores de la ACSO.2
Encontramos causa razonable para creer que la ACSO se encuentra involucrada en actividades que conforman un patrón o práctica de políticas inconstitucionales. Específicamente, encontramos que la ACSO, mediante las acciones de sus representantes, supervisores y personal de mando, persigue, para, detiene y arresta ilegalmente a los latinos. Estas acciones violan las Enmiendas Cuarta y Decimocuarta, Sección 14141, Título VI y los reglamentos del Departamento de Justicia (“DOJ”, por sus siglas en inglés) en aplicación de lo dispuesto en el Título VI.
La resolución efectiva de este asunto requerirá el desarrollo de un acuerdo exhaustivo por escrito que involucre recursos sustentables y la supervisión regulatoria judicial a nivel federal. Creemos que redunda en el interés de los Estados Unidos, así como también de la ACSO y de los habitantes del Condado de Alamance que este asunto se resuelva sin un litigio. Si desean conversar sobre un acuerdo negociado, estamos preparados para comenzar dichas negociaciones de inmediato. Por favor, comuníquenos antes del 30 de septiembre si la ACSO está interesada en comenzar el proceso de negociación.
Las prácticas policiales constitucionales y el orden público efectivo van de la mano. El patrón o práctica de discriminación que encontramos erosiona la confianza del público, genera falta de confianza entre la policía y los segmentos de la comunidad, impide que se brinde información sobre delitos y dificulta la cooperación en investigaciones criminales. Las prácticas policiales parcializadas dificultan el trabajo de los oficiales de policía, no lo facilitan.
1 Debido a que hemos podido reunir suficientes pruebas para realizar estos hallazgos sin entrevistas adicionales del personal de ACSO, actualmente estamos retirando este pleito. 2 La ley federal prohíbe a la ACSO intimidar, amenazar, coaccionar o involucrarse en cualquier otra conducta vengativa o discriminatoria, o a intentar hacer lo referido anteriormente, contra cualquier persona debido a que haya cooperado con nuestra investigación o a que haya realizado cualquier acción o participado en cualquier acción para asegurar los derechos protegidos por las leyes de derechos civiles. Ver 18 U.S.C. § 1512.
2

Estados Unidos urge a la ACSO a trabajar conjuntamente con nosotros para desarrollar recursos durables y exhaustivos que mejoren la seguridad social, la seguridad de los oficiales y que permitan que la labor de mantener el orden público sea más efectiva. Si ustedes no desean hacerlo, no dudaremos en tomar las acciones pertinentes.
RESUMEN DE LOS HALLAZGOS
Según nuestra revisión meticulosa de las pruebas, hemos llegado a la conclusión de que la ACSO está involucrada en patrones o prácticas policiales contra los latinos. La conducta discriminatoria que observamos está muy arraigada en una cultura que comienza con el Sheriff Johnson y que impregna a toda la agencia.
A continuación se detallan nuestros hallazgos de hechos que demuestran la discriminación en las prácticas policiales:
 Un reciente estudio estadístico comisionado por el DOJ demostró que los representantes de la ACSO detienen de cuatro a diez veces más conductores latinos que no latinos.
 Existen informes individuales de los puntos de control vehicular realizados durante la detención de automóviles que corroboran las actividades discriminatorias de la policía, tales como la ubicación de puntos de control vehicular predominantemente en barrios latinos y el tratamiento discriminatorio a los conductores según su origen étnico.
 Las prácticas referidas al proceso inicial de detención de la ACSO, incluyendo las prácticas relacionadas a la verificación del estado migratorio, son discriminatorias contra los latinos. Existen informes individuales que confirman que la ACSO detiene indebidamente a los latinos con el propósito de aplicar leyes migratorias incluso luego de que éstos pagan fianza.
 Las actividades discriminatorias de la ACSO son intencionales y están motivadas por los prejuicios del Sheriff contra los latinos. El Sheriff y otros líderes de la ACSO han dado instrucciones explícitas a sus oficiales para que en los puntos de control vehicular y en los arrestos se enfoquen en los latinos. Asimismo, ha hecho declaraciones que revelan un prejuicio discriminatorio contra los latinos.
 La ACSO se desvía de las leyes del estado y de los estándares de las prácticas policiales. Al informar y monitorear sus actividades enmascara su conducta discriminatoria, lo cual dificulta el monitoreo adecuado de las actividades referidas al cumplimiento de las reglas de tránsito y propenden a una política de discriminación según el perfil racial.
Nuestros hallazgos de hechos apoyan las siguientes determinaciones legales:
 La ACSO discrimina contra los latinos involucrándose en un patrón o en prácticas de conducta que violan la Cláusula de Protección de la Igualdad de la Decimocuarta
3

Enmienda, Sección 14141, Título VI, y el reglamento implementado según el Título VI del Departamento.
 La ACSO se involucra en un patrón o práctica de aprehensiones ilegales, que incluyen la detención injustificada de latinos en violación de la Cuarta Enmienda y de la Sección 14141.
ANTECEDENTES
El Condado de Alamance, Carolina del Norte, está ubicado en Piedmont, la región central del estado. El Condado posee aproximadamente 151,000 residentes, de los cuales 71.1% son blancos, 18.8% son afroamericanos y 11.0% son latinos o hispanos.3 La población latina del condado de Alamance ha crecido rápidamente durante las últimas dos décadas. Pasó de ser una población de tan solo 736 individuos en 1990 a tener 16,624 individuos según el Censo del 2010.4 ACSO es la agencia de orden público más grande de las ocho agencias locales que operan dentro del Condado. En 2010, había 123 oficiales jurados de tiempo completo trabajando para la ACSO,5 dentro de los cuales menos de una docena pertenecían a grupos minoritarios. Otros 147 empleados eran empleados civiles de tiempo completo, incluyendo a los oficiales de los correccionales.6
HALLAZGOS DE HECHOS
Encontramos que los representantes, supervisores y personal de mando de la ACSO, incluyendo al Sheriff Johnson, están involucrados en actividades que conforman un patrón o prácticas policiales discriminatorias contra los latinos. El Sheriff Johnson dirige y fomenta esta discriminación, promoviendo una cultura de prejuicios dentro de la ACSO. Este patrón se manifiesta en un rango de conductas que se describe en más detalle a continuación.
A. Prácticas discriminatorias
Al menos desde el año 2007, la ACSO ha puesto en la mira a los latinos del Condado de Alamance para intensificar con ellos las actividades del orden público. Dentro de estas actividades se encuentran el enfoque desproporcionado en los latinos para el cumplimiento de las normas de tránsito, la ubicación de puntos de control vehicular en barrios latinos y la detención de latinos en la cárcel aún luego de que no hay fundamentos para hacerlo. Las prácticas policiales y las prácticas de la ACSO niegan a los latinos la protección al derecho de igualdad establecido por ley, erosiona la confianza de la comunidad en el orden público y disminuye la capacidad de la ACSO para proteger la seguridad pública de todos los residentes del Condado.
3 Agencia de Censo de los Estados Unidos, Condado de Alamance, Datos Demográficos de 2010, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk (última consulta 11 de septiembre, 2012). 4 Idem.
4

Primero, la ACSO pone en la mira a los latinos para detenerlos por infracciones de tránsito. Un análisis estadístico de las detenciones por infracciones de tránsito demuestra que las prácticas relacionadas al cumplimiento de las normas de tránsito tienen un importante impacto discriminatorio en los conductores latinos. De hecho, los análisis estadísticos que comparan los datos de las detenciones por infracciones de tránsito de la ACSO con todos los infractores en varias rutas del Condado demuestran que, dependiendo de la ruta analizada, los oficiales de la ACSO detienen de cuatro a diez veces más conductores latinos que no latinos. Estos resultados demuestran un impacto discriminatorio de una magnitud sin precedentes en los Estados Unidos. Además de estas pruebas estadísticas, las entrevistas realizadas por la División a los oficiales y a miembros de la comunidad brindan pruebas adicionales de detenciones discriminatorias por supuestas infracciones de tránsito. Muchas de estas detenciones involucraban a aquellos conductores citados solamente por conducir sin licencia, una infracción que no es visible desde la ruta. En un informe de incidente, un oficial de la ACSO dijo que detuvo a un hombre porque “la mayoría de ellos conducen sin licencias.”
Segundo, la ACSO pone en la mira a los latinos en los puntos de control vehicular. El Sheriff Johnson selecciona e incentiva a sus oficiales a seleccionar barrios predominantemente latinos para ubicar los puntos de control vehicular. Estos puntos de detención vehicular por lo general se posicionan de manera tal de enfocarse únicamente en los residentes de estas comunidades predominantemente latinas, puesto que están ubicados en o cerca de las únicas entradas y salidas de dichos barrios. A pesar de que se nos ha informado que por lo general los oficiales establecen los puntos de control vehicular sin haber recibido la aprobación previa requerida de un supervisor y sin crear ningún registro del punto de control vehicular, tanto los puntos de control vehicular documentados como las entrevistas realizadas confirmaron que dichos puntos de control vehicular de la ACSO se aglomeran en o cerca de las entradas de barrios predominantemente latinos.
Tercero y nuevamente según las directivas del Sheriff Johnson, las prácticas de los puntos de control vehicular son discriminatorias contra los latinos. Los oficiales seleccionan a los conductores latinos en los puntos de control vehicular para arrestarlos, inclusive por infracciones de tráfico menores. Análogamente, a los conductores no latinos por lo general se los deja pasar por los puntos de control vehicular sin mostrar su identificación. También encontramos que cuando los oficiales de la ACSO detienen a los conductores por infracciones de tránsito menores, ya sea en un punto de control vehicular o mientras realizan detenciones de tránsito de rutina, la forma en la cual los oficiales de la ACSO tratan a los conductores depende del origen étnico de los conductores. Específicamente, encontramos que cuando detienen a los conductores latinos por infracciones de tránsito menores, los oficiales de la ACSO los arrestan en
5 FBI, Delitos en Estados Unidos 2010, Carolina del Norte: Empleados del Orden Público de tiempo completo, Cuadro 80, http://fbi.gov/about-us/cjis/ucr/crime-in-the-u.s./2010/crime-in-the-u.s.-2010/tables/table-80/10tb180nc.xls (última visita 23 de febrero, 2012). 6 Idem.
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lugar de meramente citarlos, lo cual no sucede con conductores de otro origen étnico. De hecho, el Sheriff Johnson ha instruido a sus oficiales supervisores para que le digan a sus subordinados, “Si detienen a un mexicano no le escriban una citación, arréstenlo.” Cuando se detiene a conductores no latinos por el mismo tipo de infracciones de tráfico menores, éstos reciben citaciones pero no se los arresta. Por ejemplo, el mismo oficial detuvo a un hombre latino y a una mujer blanca el mismo día por la misma infracción. El oficial arrestó al hombre latino pero a la mujer blanca solamente le dio una citación por escrito.
Cuarto, la ACSO discrimina contra los Latinos en sus procedimientos de encarcelación y detención. Nuestra investigación reveló que los oficiales correccionales verifican el estado migratorio de los detenidos que “parecen” latinos, sin tener en cuenta su respuesta a las preguntas referidas a la ciudadanía. Los oficiales deciden a qué detenidos interrogarán basándose en suposiciones sobre nacionalidad y origen étnico. Aquellos que parecen “norteamericanos” no son interrogados, incluso cuando no pueden presentar identificación alguna. Además, las fuerzas del orden público detienen a los latinos para verificar su estado migratorio incluso luego de haber pagado fianza. Nuestras entrevistas confirmaron que al menos en algunos casos, a los individuos latinos que ya habían pagado fianzas se les informó que no se les liberaría debido a una orden de detención expedida por el Servicio de Inmigración y Control de Aduanas de Estados Unidos (“ICE”, por sus siglas en inglés), incluso cuando aún no se hubiera contactado al ICE y no se hubiera expedido una orden de detención.
Quinto, el Sheriff ordena a sus oficiales a poner en la mira a los barrios predominantemente latinos para incrementar las prácticas policiales, basándose en la creencia que ha declarado en varias oportunidades de que los latinos son los responsables del tráfico de drogas en el Condado de Alamance. Por ejemplo, durante una reunión del personal el Sheriff Johnson declaró, “Hemos tenido una gran caída del número de la población hispana, pero todavía tenemos muchos traficando drogas y todavía tenemos a muchos ciudadanos de este país que están traficando drogas con ellos.” Consecuentemente, instruyó a su Unidad de Operaciones Especiales / Anti-vicio a poner en la mira tres o cuatro parques y barrios de caravanas predominantemente latinos. Mientras describía los esfuerzos intensificados de las prácticas policiales en las áreas predominantemente latinas, el Sheriff Johnson declaró, “El infierno llegará a esos lugares y el diablo vendrá con él. Y ustedes, colegas [la Unidad de Operaciones Especiales] serán el diablo.”
Sexto, las prácticas discriminatorias de la ACSO socavan su capacidad de servir y proteger a los residentes latinos del Condado de Alamance y de la comunidad en su conjunto. Las prácticas policiales efectivas se construyen sobre la relación de confianza con todos los segmentos de la comunidad. La ACSO no ha hecho casi nada para construir tal relación con los residentes latinos del Condado y si ha hecho mucho para destruirla. Nuestras entrevistas con los oficiales de la ACSO y los miembros de la comunidad revelan que la ausencia de esta confianza ha comprometido substancialmente a las prácticas policiales limitando la voluntad de testigos y víctimas de informar sobre delitos y hablar con los representantes de la ACSO sobre actividades delictivas o quejas de mala conducta de los oficiales de la ACSO. Nuestras investigaciones han demostrado que los latinos tienen miedo de llamar a la policía para informar delitos y brindar información pertinente para resolver delitos.
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B. Prejuicio discriminatorio
Una cultura de discriminación contra los latinos impregna la ACSO. El Sheriff y los niveles de mando más altos del personal apoyan y promueven esta cultura de prejuicios. El Sheriff Johnson ha hecho diversas declaraciones, tanto en público como a sus representantes y personal de mando, en las cuales muestra sus prejuicios contra los latinos.
En sus declaraciones, el Sheriff frecuentemente supone que los latinos del Condado de Alamance son inmigrantes indocumentados y que están involucrados en actividades delictivas. Por ejemplo, en una de sus declaraciones ampliamente divulgada, mientras argumentaba sobre los inmigrantes indocumentados, el Sheriff Johnson sugirió que cualquier individuo de origen mexicano era inherentemente sospechoso, cuando dijo: “Sus valores, su moral, son muy diferentes de lo que tenemos acá. En México no está mal tener sexo con una niña de 12, 13 años… Toman mucho ahí abajo en México.”7 El Sheriff también utiliza epítetos despectivos, tales como la frase “come tacos”, para hacer referencia a los latinos cuando habla con su personal y su personal de mando tolera la utilización de epítetos despectivos raciales y étnicos por los representantes de la ACSO y oficiales correccionales.
Además, el Sheriff y otros miembros del personal de mando de la ACSO han instruido explícitamente a los oficiales a poner la mira en los latinos durante las actividades de orden público. Por ejemplo, el Sheriff ha instruido a sus oficiales a arrestar a todos los latinos que cometan infracciones de tránsito por manejar sin licencia. Basándose en dichas instrucciones, los oficiales de la ACSO entienden que deben poner en la mira a los latinos aplicando sus prácticas de orden público discrecionales y llevarlos a la Cárcel del Condado de Alamance para revisar su estado migratorio en la base de datos,8 en lugar de simplemente expedir citaciones.
C. Desviaciones de los estándares de prácticas y procedimientos policiales
La ACSO se ha desviado de la ley del estado y de los estándares de prácticas policiales de tal manera que ha afectado a los latinos y que contribuye a las violaciones de los derechos constitucionales y federales. Primero, la ACSO no cumple con la ley estatal, las prácticas policiales estándar, ni con sus propias políticas referidas a la documentación de los puntos de detención vehicular y las detenciones por infracción de tránsito. Los oficiales por lo general pasan por alto la política de la ACSO según la cual deben presentar un plan de acción y obtener
7 Kristin Collins, Sheriffs Help Feds Deport Illegal Aliens, The News and Observer, 22 de abril, 2007, at A I, http://www.newsobserver.com/2007/04/22/59984/sherifs-help-feds-deport-illegal.html. 8 En 2007, la ACSO firmó un Memorandum de Acuerdo (“MOA”, por sus siglas en inglés) con el Servicio de Inmigración y Control de Aduanas de Estados Unidos según lo dispuesto por 8 U.S.C. § 13557(g). Este MOA permite que los oficiales designados y entrenados de la ACSO investiguen a los individuos detenidos en la Cárcel del Condado de Alamance por infringir las leyes migratorias. El MOA prohíbe que la ACSO realice revisiones de inmigración de los individuos fuera de las instalaciones carcelarias. 9 Robert Boyer, Hispanics Stopped by Sheriff’s Department “Grossly Underreported,” The Burlington Times-News, 7 de abril de 2009. 10 N.C. Stat. Ann. (Estatuto revisado del estado de Carolina del Norte) § 114-10.01 (en efecto desde el 1º de enero de 2002, enmienda en efecto desde el 1º de enero de 2010).
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la aprobación del supervisor antes de establecer un punto de control vehicular y completar un informe de cada punto de control vehicular. Además, la ACSO ha informado un número “extremadamente menor” de detenciones de automóviles realizadas por sus oficiales, 9 aun cuando se requiere la recolección de datos de detenciones por infracciones de tránsito según la ley de Carolina del Norte. 10 Debido a la falta de datos referentes a los puntos de control vehicular y a las detenciones por infracciones de tráfico, la ACSO no puede supervisar el desempeño de las actividades de tránsito de sus oficiales de manera adecuada ni determinar de forma razonable si los oficiales o unidades están involucrados en discriminación según el perfil racial. Por otro lado, el número de latinos detenidos en prisión por infracciones menores está enmascarado porque según la política de la ACSO las infracciones de tránsito menores se ingresan en un libro y se registra a los detenidos solamente como “b” (negros, según la inicial en inglés) o “w” (blancos, según la inicial en inglés).
En segundo lugar, la Unidad de Operaciones Especiales de la ACSO 11 no cumple con el requisito de llevar un registro ni con otras prácticas policiales estándar. La Unidad lleva a cabo tareas de control de tránsito y otras operaciones especiales cuya prioridad es determinada por el Sheriff. Estos oficiales elegidos a dedo y fieles al Sheriff, llevan a cabo la mayor parte de las detenciones por supuestas infracciones de tránsito y ponen en la mira a los barrios predominantemente latinos con bloqueos de calles, detenciones de vehículos, al realizar redadas, y al aumentar las patrullas según las directivas del Sheriff Johnson, pero con poca supervisión. Estos oficiales por lo general no cumplen con los requisitos de documentación de las prácticas de orden público requeridos, lo cual dificulta la supervisión de sus actividades. Además, se disciplina a los miembros de la Unidad por mala conducta de manera inconsecuente.
ANÁLISIS LEGAL
La Sección 14141 le otorga a Estados Unidos la autoridad de entablar acción legal contra un estado o gobierno local para obtener una reparación judicial justa y declaratoria cuando una “autoridad de gobierno…se involucra en un patrón o prácticas de conducta de sus oficiales del orden público… que priva a las personas de sus derechos, privilegios o inmunidades amparadas o protegidas por la Constitución o las leyes de Estados Unidos”. 42 U.S.C. § 14141. Tanto la Constitución como la ley federal prohíben la discriminación intencional sobre el fundamento de raza, color, u origen nacional. El Título VI establece que “en los Estados Unidos nadie será excluido, por motivos de raza, color u origen nacional, de participar, obtener beneficios o alguna otra forma de discriminación en ningún programa o actividad que reciba asistencia financiera federal.” 42 U.S.C. § 2000d. Además, las reglamentaciones implementadas, según el Título VI, prohíben a quienes reciben fondos federales involucrarse en actividades con efectos discriminatorios por motivos de raza, color u origen nacional.
La ACSO debe establecer sus propias prioridades de orden público, pero al mismo tiempo las acciones de la ACSO deben cumplir con la Constitución y la ley de Estados Unidos. Encontramos que, al poner en la mira a los latinos, ignorando los protocolos de orden público básicos y no habiendo cumplido con el deber de implementar medidas de seguridad significativas contra las prácticas policiales discriminatorias; la ACSO se involucra en la discriminación intencional, violando así la Decimocuarta Enmienda, la Cuarta Enmienda y la ley federal. También encontramos que las actividades de orden público de la ACSO tienen un efecto
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discriminatorio contra los latinos en el Condado de Alamance, lo cual constituye una violación de las reglamentaciones implementadas según el Título VI.
A. Prácticas policiales discriminatorias
Nuestra investigación brinda causas razonables para creer que las prácticas discriminatorias referidas al cumplimiento de las normas de tránsito y a las actividades llevadas a cabo en los puntos de control vehicular violan la Cláusula de Igual Protección de la Ley de la Decimocuarta Enmienda, Título VI, y las reglamentaciones implementadas según el Título VI.
La Cláusula de Igual Protección de la Ley prohíbe ciertas prácticas de orden público que discriminan según la raza, origen étnico o nacional. Whren v. Estados Unidos, 517 U.S. 806, 813 (1996). Una agencia de orden público como la ACSO viola la Cláusula de Igual Protección de la Ley cuando el responsable de tomar las decisiones adopta una política o práctica aparentemente neutral con intenciones discriminatorias y cuando dicha política o práctica tiene efecto discriminatorio. Estados Unidos v. Armstrong, 517 U.S. 456, 465 (1996); Washington v. Davis, 426 U.S. 229, 239-40 (1976); Monroe v. Ciudad de Charlottesville, 579 F.3d 380, 388 (4th Cir. 2009). Del mismo modo, los oficiales del orden público violan la Cláusula de Igual Protección de la Ley al administrar o hacer cumplir una política aparentemente neutral de manera tal que afecta desproporcionadamente a un grupo identificable y actúan con intención discriminatoria. Monroe, 579 F.3d at 388.
Una actividad de orden público podrá estar en conflicto con la Cláusula de Igual Protección de la Ley incluso cuando la intensión discriminatoria no constituya el único motivo del responsable de tomar las decisiones. Smith v. Town a/Clarkton, 682 F.2d l055, 1066 (4th Cir. 1982); Orgain v. Ciudad de Salisbury, 305 F. App'x 90, 98 (4th Cir. 2008) (“Particularmente, la Cláusula de Igual Protección de la Ley no requiere que los Demandantes prueben que la acción impugnada se fundó únicamente con propósitos de discriminación racial.”). En vez de ello, la violación de la igualdad ante la ley tiene lugar cuando hay pruebas que muestran que “la intención racial fue uno de varios factores que, tomados en su conjunto,” motivaron los actos discriminatorios. Orgain, 305 F. App’x at 98; ver también Administrador de Personal de Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). Para evaluar si la discriminación intencional promueve una actividad de orden público, la corte examina la totalidad de las circunstancias con atención particular en factores que la Corte Suprema ha identificado de mayor valor probatorio de la intención discriminatoria. Village of Arlington Heights v. Metro. Hous. Redev. Corp., 429 U.S. 252 (1977). Estos factores incluyen: pruebas del efecto discriminatorio; pruebas del desvío de los procedimientos normales; la secuencia específica de los hechos que llevaron a las prácticas discriminatorias en cuestión y declaraciones contemporáneas de una de las personas responsables de las decisiones que revelen la intención discriminatoria. Id. en 266-68; Sylvia Dev. Corp. v. Calverl Cnty., 48 F.3d 810, 819 (4th Cir. 1995).
Nuestra investigación reveló pruebas sustanciales de que el Sheriff Johnson implementó intencionalmente prácticas de orden público que discriminan contra los latinos. A pesar de que el Sheriff Johnson por lo general justifica las actividades de la ACSO citando su deseo de combatir
11 Esta unidad ha tenido diferentes nombres a lo largo de su existencia, incluyendo “Anti-vicio” y “Crímenes callejeros”.
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la inmigración ilegal, llegamos a la conclusión de que el prejuicio anti-latino motiva su selección e implementación de las prioridades de orden público de la ACSO. El Sheriff Johnson ha realizado comentarios racistas desconsiderados, ha tolerado comentarios racistas derogatorios del personal de mando de la ACSO y ha ordenado varias actividades de orden público discriminatorias. De hecho, el Sheriff Johnson ha ordenado numerosos puntos de control vehicular y otras actividades de orden público en barrios predominantemente latinos; ha instruido a los oficiales de la ACSO a detener a los conductores latinos en las calles y ha insistido en que los oficiales arresten y detengan a los conductores latinos por infracciones menores.
Además de descubrir pruebas de intencionalidad discriminatoria, nuestra investigación demuestra que varias prácticas de la ACSO resultan en un impacto discriminatorio que repercute en los latinos. Existen pruebas estadísticas que demuestran que los oficiales de la ACSO detienen a los conductores latinos a tasas mayores que las situadas de manera similar en calles no latinas del Condado de Alamance. Estas pruebas no solo demuestran un impacto distinto sobre los conductores latinos, sino que también están relacionadas directamente en los motivos discriminatorios de los oficiales de la ACSO que implementan las actividades de orden público relacionadas al cumplimiento de las normas de tránsito. Es muy difícil concebir cualquier otra explicación válida no-discriminatoria para las prácticas de orden público según las cuales se detiene de cuatro a diez veces más conductores latinos que no latinos. Estas pruebas estadísticas concuerdan con lo que los testigos nos han dicho sobre los oficiales de la ACSO, en particular de la Unidad de Operaciones Especiales de la ACSO, acerca de la frecuente detención y arresto de los conductores latinos sin causa alguna.
Asimismo, el análisis sobre los puntos de control vehicular de la ACSO realizados y documentados del 2007 – 2011 demuestra que la ACSO ubica los puntos de control vehicular desproporcionadamente en o cerca de comunidades predominantemente latinas. Las entrevistas realizadas a los residentes del Condado confirman que estos puntos de control vehicular discriminatorios continúan en la actualidad. La ACSO no solo ubica frecuentemente los puntos de control vehicular en las áreas latinas, el resultado de nuestra investigación indica que los oficiales de la ACSO ejecutan las prácticas de los puntos de control vehicular de forma discriminatoria. Por estas y otras razones, la evidencia establece que la ACSO está involucrada en patrones o prácticas de violación a la protección del derecho de la igualdad.
Nuestra investigación también brinda causa razonable para creer que las prácticas carcelarias discriminatorias de la ACSO violan la Cláusula de Igual Protección de la Ley. Los procedimientos ilegales carcelarios de la ACSO ponen en la mira a los latinos para verificar su estado migratorio durante el proceso de inscripción del arresto y la detención.
El Título VI también prohíbe las actividades del orden público discriminatorias. El Título VI establece que “en los Estados Unidos nadie será excluido, por motivos de raza, color u origen nacional, de participar, obtener beneficios o alguna otra forma de discriminación en ningún programa o actividad que reciba asistencia financiera federal.” 42 U.S.C. § 2000d. Además, las reglamentaciones implementadas según el Título VI proscriben los “criterios o métodos de administración” que ejerzan efecto discriminatorio por motivos de raza, color u origen nacional. 28 C.F.R. § 42.104(b)(2). La ACSO y el Condado de Alamance reciben fondos federales y han infringido el Título VI y sus reglamentaciones correspondientes por los motivos detallados anteriormente.
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B. Detenciones injustificadas
La ACSO priva a los residentes latinos de su derecho establecido según la Cuarta Enmienda según el cual son libres de “allanamientos y detenciones injustificadas.” Cuarta Enmienda de la Constitución de los Estados Unidos. Incluso la detención temporal de un individuo por la policía durante una detención por una supuesta infracción de tránsito para un fin determinado constituye una detención a los efectos de la Cuarta Enmienda. Whren, 517 U.S. at 809-10; United States v. Branch, 537 F.3d 328, 334 (4th Cir. 2008). De este modo la detención de un vehículo por una infracción de tránsito debe ser “razonable” según las circunstancias. Whren, 517 U.S. at 810. Establecer puntos de control vehicular para revisar licencias y registros no es lícito. Delaware v. Prouse, 440 U.S. 648, 657, 661 (1979). Detener un vehículo en un punto de control vehicular de esta manera constituye una detención a los efectos de la Cuarta Enmienda. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990). Aunque la Cuarta Enmienda permite los puntos de control vehicular en ciertas circunstancias limitadas, ver Sitz, 496 U.S. at 454 (sostener puntos de control de sobriedad), la policía no puede utilizar los puntos de control vehicular para cumplir con objetivos de orden público generales, tales como inspecciones migratorias o interdicción de drogas. Los oficiales tampoco pueden establecer un punto de control vehicular inadmisible mediante la articulación de una justificación utilizada como pretexto. Ver, por ej., United States v. Huguenin, 154 F.3d 547, 555 (6th Cir. 1998) (los puntos de detención vehícular pretextuales deben ser juzgados según el verdadero propósito programático); United States v. Morales-Zamora, 974 F.2d 149, 153 (10th Cir. 1992) (se revoca del rechazo de la moción para suprimir las pruebas y se mantiene que el punto de control de licencias de conducir era de hecho un pretexto para realizar registros en busca de drogas).
Nuestra investigación brinda causa razonable para creer que las prácticas de la ACSO según las cuales ponen en la mira a los conductores latinos mediante los controles de tránsito y puntos de control vehicular violan la Cuarta Enmienda. Estas detenciones con motivos racistas son injustificadas según la Cuarta Enmienda. Como describimos anteriormente, la ACSO establece puntos de control vehicular en áreas densamente pobladas por latinos para facilitar sus inadmisibles objetivos programáticos, incluyendo las investigaciones de facto del estado migratorio y la interdicción de drogas. Asimismo, los oficiales de la ACSO se involucran en la práctica de detener a los conductores latinos en las calles del Condado de Alamance sin tener en cuenta si existe una sospecha razonable o no para realizar detenciones de tránsito; siendo esta una práctica que infringe la “razonabilidad” establecida en la Cuarta Enmienda. Además, la ACSO detiene a los latinos incluso después de haber pagado fianza.
MEDIDAS CORRECTIVAS
Las conclusiones de hecho detalladas más arriba proporcionan causa razonable para entender que la ACSO viola la Cuarta y Decimocuarta Enmienda de la Constitución de Estados Unidos, Sección 14141 y Título VI y reglamentaciones implementadas según el Título VI. En consecuencia, la División de Derechos Civiles les notifica que, no habiéndose logrado un acuerdo de la ACSO con la División para corregir estas violaciones, Estados Unidos iniciará acciones legales para obligar a la ACSO a cumplir con la Constitución y la ley federal.
Las violaciones constitucionales y las deficiencias institucionales señaladas anteriormente son producto de una cultura arraigada que promueve y tolera el trato discriminatorio contra los latinos y de una agencia que ha demostrado su flagrante falta de observancia de los amparos
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constitucionales. La reforma de la ACSO requerirá un compromiso continuo para lograr cambios estructurales, culturales e institucionales a largo plazo, dentro de los cuales cabe mencionar:
• Eliminación de la discriminación manifiesta: La ACSO debe desarrollar e implementar políticas que prohíban las actividades de orden público discriminatorias y el uso de lenguaje derogatorio de los oficiales de la ACSO dirigido a determinados grupos raciales y étnicos mientras estén en servicio.
• Capacitación para oficiales, supervisores y personal de mando de la ACSO: La ACSO debe desarrollar e implementar una capacitación efectiva y significativa para sus oficiales y el personal relevante no jurado sobre las prácticas de vigilancia policial constitucionales, incluyendo cómo realizar detenciones, búsquedas, allanamientos y arrestos, cumpliendo con los requisitos de las Enmiendas Cuarta y Decimocuarta. El entrenamiento también debe incluir instrucciones referidas a las obligaciones de utilización del lenguaje y procedimientos.
• Unidad de Operativos Especiales: La ACSO debe desarrollar e implementar políticas, procedimientos, capacitación y fiscalización detallada de las operaciones y actividades de la Unidad de Operativos Especiales.
• Recolección de datos, análisis y gestión de riesgos: La ACSO debe desarrollar, implementar y hacer cumplir un sistema de recolección de datos exhaustivo y preciso de todas las actividades de orden público de la ACSO. Dicho programa requiere de informes sistemáticos completos, detallados y auditables para los puntos de control vehicular; las detenciones de tránsito y peatonales; registros y allanamientos, redadas y patrullas. Este programa también requiere un análisis regular y de auditoría de los datos para que la ACSO pueda supervisar, administrar e intervenir cuando sea oportuno.
• Sistema de denuncias y asuntos internos: La ACSO debe desarrollar un sistema integral de quejas, investigaciones y disciplinario que le permita responsabilizar a sus funcionarios cuando violan la política o la ley. El sistema de quejas debe difundirse de manera adecuada y debe ser accesible a todos los miembros de la comunidad y debe permitir al público, incluyendo a los mismos oficiales de la ACSO, presentar quejas en contra del personal y delegados de la ACSO sin temor a represalias. El proceso de investigación interna deberá incluir canales claros para los procesos de adjudicación, disciplina y para los procedimientos penales, si fuera necesario.
• Compromiso con la comunidad: La ACSO debe suplir las necesidades de orden público de todos sus residentes, independientemente de su raza o etnia. Para ello, la ACSO debe comprometerse y brindar asistencia a los residentes latinos de la ACSO para garantizar que les brinda servicios de orden público de forma efectiva y justa.
12

EL CAMINO QUE QUEDA POR RECORRER Nosotros creemos firmemente que las prácticas policiales efectivas y las prácticas policiales constitucionales son inseparables. Preferimos trabajar en colaboración con las agencias de orden público, como lo hemos hecho durante los últimos años (cada vez más según su solicitud), para tratar asuntos graves que amenazan con socavar la confianza del público y dificultar el efectivo desempeño de las prácticas policiales. Preferimos negociar en lugar de litigar. Nuestro objetivo a lo largo de cada investigación es trabajar de forma conjunta para desarrollar e implementar medidas de reforma sustentables que reducirán el delito, garantizarán el cumplimiento de la Constitución e incrementarán la confianza de la comunidad en el orden público. Estamos listos para arremangarnos la camisa y trabajar con ustedes para tratar los asuntos referidos en esta carta y seguimos preparados para tomar rápidamente las acciones legales pertinentes del caso si eligen no colaborar. Esperamos tener novedades antes del 30 de septiembre sobre si desean o no negociar un acuerdo sobre este asunto. Por favor, nótese que esta carta es un documento público y será publicada en el sitio web de la División de Derechos Civiles. En caso de que tengan alguna pregunta, por favor comuníquense con Jonathan Smith, Jefe de la Sección de Litigios Especiales, al (202) 514-6255.
Atentamente, Thomas E. Pérez Procurador General Adjunto
13

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

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

TERRY S. JOHNSON, in his

)

official capacity as Alamance )

County Sheriff,

)

)

Defendant.

)

1:12-cv-1349

MEMORANDUM ORDER

THOMAS D. SCHROEDER, District Judge.

The United States (“the Government”) brought this action

against Defendant Terry S. Johnson, in his official capacity as

Sheriff of Alamance County, North Carolina, alleging that the

Alamance County Sheriff’s Office (“ACSO”) had engaged in a pattern

or practice of discriminating against Hispanics, in violation of

the Fourth and Fourteenth Amendments to the United States

Constitution. Following trial, the court denied the Government’s

claims and entered judgment for Sheriff Johnson. United States v.

Johnson, No. 12cv1349, 2015 WL 4715312, at *1 (M.D.N.C. Aug. 7,

2015). Before the court now is Sheriff Johnson’s motion for

statutory attorneys’ fees under the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412, and costs as a prevailing party (Doc.

161), as well as the Government’s motion to stay consideration of

an award of fees and costs pending appeal of this court’s decision

on the merits (Doc. 164). The motions have been fully briefed and are ready for resolution. For the reasons explained below, the court finds it in the interest of judicial economy to resolve these issues now, will award costs, but will deny Sheriff Johnson’s motion for attorneys’ fees. I. BACKGROUND
The Government filed this action on December 20, 2012. This court denied Sheriff Johnson’s motion for judgment on the pleadings (Doc. 19), and, following discovery, granted in part and denied in part cross-motions for summary judgment.1 United States v. Johnson, 28 F. Supp. 3d 499, 502 (M.D.N.C. June 20, 2014). After a nearly two-week trial in which the Government presented twentynine fact witnesses and three expert witnesses and Sheriff Johnson presented sixteen fact witnesses and one expert witness, this court entered judgment in favor of Sheriff Johnson. United States v. Johnson, 2015 WL 4715312, at *1.
Within thirty days of the entry of judgment, Sheriff Johnson moved for costs and attorneys’ fees under the EAJA. (Doc. 161.) The Government subsequently moved to stay Sheriff Johnson’s motion for fees and costs. (Doc. 164.) At the time the motion to stay
1 Summary judgment was granted as to the Government’s Fourth Amendment claim to the extent the Government sought to show that ACSO used vehicular checkpoints for general law enforcement purposes for all county residents, not just Hispanics, because the Government’s complaint and litigation strategy had not provided Sheriff Johnson with sufficient notice of that claim. United States v. Johnson, 28 F. Supp. 3d 499, 515-17 (M.D.N.C. June 20, 2014).
2

was filed, the Government had not decided whether to appeal this court’s decision on the merits. Accordingly, at the Government’s request, the court stayed further action on Sheriff Johnson’s motion for fees and costs until the deadline for the Government to file its notice of appeal passed. (Doc. 169.) The court also reset the deadlines for the Government to respond to Sheriff Johnson’s motion for fees and costs. (Id.) On October 2, 2015, the Government filed its notice of appeal (Doc. 170), and the parties have now fully briefed all of the issues. II. ANALYSIS
Even though the Government has filed its notice of appeal, neither party claims this court lacks jurisdiction to decide the costs and attorneys’ fees issues. But this court has an independent obligation to ensure that jurisdiction exists. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The filing of a notice of appeal transfers jurisdiction over all questions presented in the appeal from the district court to the court of appeals. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982); Jankovich v. Bowen, 868 F.2d 867, 871 (6th Cir. 1989). The purpose of this judicially-created doctrine is to “avoid the confusion and inefficiency of two courts considering the same issues simultaneously.” Jankovich, 868 F.2d at 871. Accordingly, notwithstanding the filing of a notice of appeal, district courts retain jurisdiction to determine collateral and ancillary matters
3

that do not affect the questions presented on appeal. LanghamHill Petroleum, Inc. v. S. Fuels Co., 813 F.2d 1327, 1330—31 (4th Cir. 1987); Weaver v. Fl. Power & Light Co., 172 F.3d 771, 773 (11th Cir. 1999). The award of costs and attorneys’ fees have generally been recognized as collateral issues appropriate for resolution by the trial court when an appeal has been taken. See Buchanan v. Stanships, Inc., 485 U.S. 265, 268 (1988); LanghamHill Petroleum, 813 F.2d at 1331 (“[T]he request for attorney’s fees raised issues collateral to the main cause of action. Attorney’s fees are not compensation for the injury giving rise to the action and thus are not an element of relief.” (citing White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 452 (1982))).
Under the EAJA, a prevailing party is entitled to attorneys’ fees “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Even though the question of whether the Government’s suit was “substantially justified” turns upon the same nucleus of facts as the substantive questions that have been appealed, the legal issue is distinct. The Government’s appeal does not place the issue of substantial justification before the Fourth Circuit, and, accordingly, this court retains jurisdiction to determine it. See United States v. $12,248.00 in U.S. Currency, No. 86cv6768, 1989 WL 205820, at *1415 (N.D. Cal. Oct. 30, 1989) (“The question of whether claimant is
4

entitled to . . . attorney’s fees was not decided by the Court’s

. . . judgment and [cannot] properly be considered as aspects of

the case involved in plaintiff’s appeal.”).

Finally, neither party has addressed whether consideration of

the fee petition at this time is premature in a jurisdictional

sense. Under the EAJA, a prevailing party must apply for an award

of attorneys’ fees and other expenses within thirty days of final

judgment. 28 U.S.C. § 2412(d)(1)(B). The EAJA defines final

judgment as a judgment that “is final and not appealable, and

includes an order of settlement.”

Id. § 2412(d)(2)(G).

Notwithstanding this language, courts have treated fee petitions

made prior to the entry of a non-appealable judgment as timely.

McDonald v. Schweiker, 726 F.2d 311, 314 (7th Cir. 1983) (“[T]he

30-day provision in [the EAJA] was meant to establish a deadline,

not a starting point.”); Cervantez v. Sullivan, 739 F. Supp. 517,

520 (E.D. Cal. 1990) (“[T]he 30-day period was intended to operate

as a statute of limitations rather than as a jurisdictional bar to

consideration of EAJA fee applications.”). In addition, courts

have held that fee petitions “can be granted before final judgment

is entered.” Hunter v. Crocetti, No. 00cv2189, 2000 WL 33249939,

at *2 (D. Md. Sept. 28, 2000) (citing Gonzalez v. United States,

44 Fed. Cl. 764, 767-68 (Fed. Cl. 1999)); see, e.g., Cervantez,

739 F. Supp. at 518-520; League for Coastal Prot. v. Kempthorne,

No. 05cv0991, 2006 WL 3797911, at *4-5 (N.D. Cal. Dec. 22, 2006).

5

This approach is consistent with the legislative history of the EAJA, which contemplates interim fee awards. H.R. Rep. No. 99120(I), at 18 n.26 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 146 n.26 (“A similar analysis applies in direct appeal cases. Fee petitions may be filed before a ‘final judgment.’ If the Court determines that an award of interim fees is inappropriate the petition should be treated as if it were filed during the thirtyday period following the final decision.”) Accordingly, this court has jurisdiction to consider Sheriff Johnson’s fee petition at this time. See Cervantez, 739 F. Supp. at 519-20.
A. The Government’s Motion to Stay The Government argues that staying consideration of Sheriff Johnson’s request for costs and fees pending appeal would promote judicial economy. However, the opposite appears to be the case here, as a stay would create a risk of piecemeal litigation. Langham-Hill Petroleum, 813 F.2d at 1331 (“Piece-meal appeals will be avoided if district courts promptly hear and decide claims to attorney’s fees. Such practice normally will permit appeals from fee awards to be considered together with any appeal from a final judgment on the merits.”). By considering the substantially justified question at this time, the Fourth Circuit will have the opportunity to consolidate any appeal from this order with the pending appeal of this court’s judgment on the merits. This would permit a single panel of the Fourth Circuit to rule on the entire
6

matter at once and would greatly promote judicial economy given that the EAJA’s substantially justified question turns on the entire record under the totality of the circumstances. See Cervantez, 739 F. Supp. at 520-21. It will also permit this court to consider the cost and fee issues while the relevant circumstances are fresher in the court’s mind. See Masalosalo by Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir. 1983). Accordingly, the Government’s motion to stay Sheriff Johnson’s petition for fees and costs will be denied.
B. Sheriff Johnson’s Motion for Costs The Government does not contest that Sheriff Johnson is entitled to $23,297.20 in costs under 28 U.S.C. § 2412(a)(1). Its lone argument is that Sheriff Johnson may not be the prevailing party after appeal. (Doc. 173 at 2.) But it is true that in every appeal the prevailing party may change. Federal Rule of Civil Procedure 54(d) creates a presumption in favor of taxation of costs, and “‘a district court deciding not to award costs at the customary stage must provide a valid reason.’” Shipman v. United Parcel Serv., Inc., No. 5:12-cv-589-F, 2013 WL 6622944, at *2 (E.D.N.C. Dec. 16, 2013) (quoting Singleton v. Dep’t of Corr. Educ., No. 1:03-cv-00004, 2003 WL 22299039, at *1 (W.D. Va. Oct. 3, 2003)). The Government has not provided any reason why costs awarded under the EAJA should be treated differently. Accordingly, Sheriff Johnson will be awarded $23,297.20 in costs.
7

C. Sheriff Johnson’s Motion for Attorneys’ Fees As stated above, Sheriff Johnson is entitled to an award of attorneys’ fees unless “the government can demonstrate that its position was ‘substantially justified,’ or that special circumstances make an award unjust.” Hyatt v. Barnhart, 315 F.3d 239, 244 (4th Cir. 2002) (citations omitted). The meaning of substantially justified has been “an issue of considerable conceptual and practical difficulty, given the open-endedness of the statutory language and, no doubt, the delicacy of the question.” United States v. Paisley, 957 F.2d 1161, 1165 (4th Cir. 1992). In Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme Court examined whether, in the context of the EAJA, the modifier “substantially” means “‘considerable’ (to a high degree) or ‘in the main’ (to a reasonable degree).” Paisley, 957 F.2d at 1165 (quoting Pierce, 487 U.S. at 565). The Court settled on the latter interpretation, id., and, as a result, substantially justified means “justified to a degree that could satisfy a reasonable person or having a reasonable basis both in law and fact.” Hyatt, 315 F.3d at 244 (citations and internal quotation marks omitted). “There is no ‘presumption that the Government position was not substantially justified, simply because it lost the case.’” Crawford v. Sullivan, 935 F.2d 655, 657 (4th Cir. 1991) (quoting Tyler v. Bus. Servs., Inc. v. NLRB, 695 F.2d 73, 75 (4th Cir. 1982)); Roanoke River Basin Ass’n v. Hudson, 991 F.2d
8

132, 139 (4th Cir. 1993) (“The focus when determining whether a petitioner is a prevailing party is aimed at the degree of success obtained by the petitioner. Whether the government’s ‘position in the litigation’ is substantially justified, in contrast, focuses, not on the government’s success or failure, but on the reasonableness of its position in bringing about or continuing the litigation.”). Nevertheless, “[t]o be ‘substantially justified’ means, of course, more than merely undeserving of sanctions for frivolousness.” Pierce, 487 U.S. at 566.
“[W]hether the government acted reasonably in causing the litigation or taking a stance during the litigation,” is to be determined under the totality of the circumstances and based on the underlying record in the action. Hyatt, 315 F.3d at 244—45. Rather than “atomize” the case, Crawford, 935 F.2d at 660 n.6, courts look to “the government’s position in the case as a whole,” Roanoke, 991 F.2d at 138-39. In addition, courts consider objective indicia of reasonableness and make an “independent assessment of the merits of the Government’s position.” Paisley, 957 F.2d at 1166 (discussing the analytical framework from Pierce). Objective indicia, including the stage at which the merits were decided, are some evidence of the strength of the Government’s case. Id. For example, a fairly lengthy opinion may at times “demonstrate[] a perception by the author that the issue was one whose resolution required significant intellectual effort . . . .”
9

Id. at 1168. However, the stage at which the government lost its case “does not conclusively establish the strength or weakness of the position.” Nat’l Org. for Marriage, Inc., v. United States, No. 14-2363, slip op. at 11 (4th Cir. Dec. 2, 2015).
The Government alleged that Sheriff Johnson and the ACSO violated the Fourth and Fourteenth Amendments to the United States Constitution by engaging in a pattern or practice of discriminatory law enforcement activities directed against Hispanics. Johnson, 2015 WL 4715312, at *1. Sheriff Johnson argues that the Government’s action was not substantially justified because the Government’s legal theories lacked a reasonable basis in fact. (See Doc. 162 at 4—6 (challenging the factual support offered by the Government); Doc. 178 at 2—7.) Beyond a bare conclusion, Sheriff Johnson does not claim that the Government’s legal theories lacked a reasonable basis in law. (See Doc. 162 at 4—6; Doc. 178 at 2—7.)
The court gave the Government’s claims extensive consideration. It considered and denied Sheriff Johnson’s motion for summary judgment in substantial part, finding that “the Government has presented evidence which, if credited, demonstrates both disparate impact and discriminatory intent, but there are genuine disputes over material facts.” (Doc. 118 at 18.) It also held a nine-day trial and reviewed the record for almost a year before issuing a nearly 250-page decision of findings of fact and
10

conclusions of law. Johnson, 2015 WL 4715312. Those findings are lengthy and detailed and cannot be repeated here without substantially repeating the full opinion. So, the court refers to them and the analysis of that decision and will highlight below some of the principal reasons for the resolution of the current motion. In doing so, the court does not intend to alter any conclusion of its merits opinion.
Having considered the record in the totality of the circumstances, the court finds that, while the court was not persuaded by the Government’s evidence and arguments, the Government’s claims under the Fourth and Fourteenth Amendments were nevertheless substantially justified within the meaning of the EAJA.
The Government’s case was based principally on fact witness testimony and statistical evidence presented by two experts.
As to the fact witnesses, the Government’s evidence included instances of ethnic slurs by certain ACSO deputies, but this evidence was limited primarily to the ACSO jail (where employees did not have any involvement in any decision-making to stop or detain anyone) and to a handful of inappropriate email jokes. Id. at *35-38. In addition, a few ACSO officers testified that they had been ordered to arrest or detain Hispanics. Id. at *16. Again, this was disputed. Those very deputies ultimately denied ever targeting anyone or knowing anyone who did, and there was
11

evidence that these witnesses had reason to hold a grudge against the sheriff. Id. at *17-18. Sheriff Johnson testified and denied the statements attributed to him, and the testimony of the Government’s witnesses was rebutted or placed into a lawful context by Sheriff Johnson’s witnesses.
Further, the Government’s case also rested on disputed testimony on ACSO’s policy for arrest. The Government asserted that ACSO targeted Hispanics for arrest rather than citation, on the theory that they could be processed through the Government’s 287(g) program at the ACSO jail for possible Immigration and Customs Enforcement (“ICE”) detention, and the Government relied on the testimony referred to above as well as on that of a local magistrate who testified to seeing more Hispanics at the jail after ACSO instituted the 287(g) program.2 But Sheriff’s Johnson’s witnesses testified that the policy was that a deputy was authorized (but not directed) to arrest anyone committing an arrestable offense who could not otherwise be identified, id. at *15, and the persuasive evidence showed that the vast majority of those the magistrate saw at the jail were likely from ICE arrests as well as from the eleven other “contributing” law enforcement agencies who used the ACSO jail for booking arrestees, id. at *12.
2 The 287(g) program refers to the Government’s use, through ICE, of the ACSO jail as a facility to book and house ICE detainees under 8 U.S.C. § 1357(g). Under the program, ACSO provided a certain number of deputies to be cross-certified as ICE agents to work in, and to be supervised by ICE employees at, the ACSO jail. Id. at *4-*5.
12

The Government relied on evidence that ACSO discharged its statutory obligation to check gun permit applicants’ backgrounds in a fashion suggesting that only Hispanics were cleared by ACSO through the ICE database. This was weak, however, because there was no evidence as to whether or not other applicants had been cleared because they provided valid evidence of citizenship, nor did the Government claim that confirming citizenship through the ICE database was in itself wrong (only the claim that ACSO did this for Hispanics and that ICE, not the ACSO deputies assigned to the ICE unit, should have actually accessed the ICE database).3
As to checkpoint siting, the Government provided evidence of ACSO checkpoints in or near predominantly Hispanic areas. But the testimony of Sheriff Johnson’s expert supported the conclusion that ACSO distributed its checkpoints equally across the county. Id. at *18-19, *58. And, as to the Fourth Amendment claim, the Government relied on evidence, by ACSO’s Deputy Conklin and Lieutenant Hoover, who described their use of traffic checkpoints as being for “general law enforcement” purposes.4 Id. at *19. However, other evidence showed that, by that, they meant
3 In any event, there was evidence that while ICE had initially approved the practice, the practice nevertheless ceased in 2011, well before the 287(g) program was discontinued. Id. at *9-*10. 4 As noted above, given the notice problems in its complaint, the Government was required to link its Fourth Amendment claim to Hispanics. Johnson, 28 F. Supp. 3d at 515-17. Consequently, the Government sought to tie the officers’ “general law enforcement” statements to its claims relating to checkpoints near predominantly Hispanic areas.
13

permissible license checks, and that the testimony was not considered fully in context. Id.
Thus, credibility and context were critical to these witnesses’ testimony. Ultimately, when considered in the context of all the evidence, the court was not persuaded by key parts of the Government’s witnesses’ testimony or the inferences the Government drew from what those witnesses claim to have been told or instructed. See id. at *94. This does not mean that the Government could not have reasonably believed its witnesses, however.
The Government also relied heavily on vehicle stop data and statistical analysis from two expert witnesses, Dr. John Lamberth and Dr. John MacDonald, to demonstrate that ACSO’s traffic enforcement discriminated against Hispanics. Id. at *22-29. Both experts conducted extensive analysis. However, upon closer examination, both suffered from various flaws.
Dr. Lamberth provided testimony of an estimated “benchmark” for Hispanic drivers who violate traffic laws in Alamance County, based on his method of having assistants attempt to observe the ethnicity of drivers and traffic violations of moving vehicles from the roadside at a distance. Dr. Lamberth’s study was based on a modified version of the methodology he used in prior instances studying principally African Americans. His qualifications were not challenged, but the court found his method and results as
14

applied in this case unreliable under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1999). 2015 WL 4715312, at *47. The Government was aware that at least one court had admitted a study by Dr. Lamberth. Id. But, as this court noted in its opinion, the Government was also aware that Dr. Lamberth’s testimony was subject to challenge because some courts have excluded his studies as “suspect” and unreliable; in fact, the Government itself had challenged his testimony in many of those cases. Id. at *53. Nevertheless, while this court was not persuaded by his method and evidence, even novel opinions and techniques may provide a sufficient factual basis for reliable expert opinions, especially where the expert has been permitted to testify in other cases. See Shock v. United States, 254 F.3d 1, 5 (1st Cir. 2001) (“When the issue is a novel one on which there is little precedent, courts have been reluctant to find the government’s position was not substantially justified.”).
In addition to finding Dr. Lamberth’s study unreliable, this court also did not find Dr. Lamberth to be a credible witness. 2015 WL 4715312, at *53-54. He relied on the work of two assistants whom he directed to observe drivers on active roadways from a distance and record their ethnicity and traffic violations. Dr. Lamberth had performed such a study before, but it is a difficult task at best - one Dr. Lamberth, himself, and others criticized previously, but one that was essential to his conclusions. Id.
15

The Government’s proof was weakened by its failure to offer either

assistant at trial to provide any indication of the standard they

used to identify Hispanics so that they could be cross-examined

and their conclusions probed and tested. Instead, Dr. Lamberth

testified that his assistants classified anyone as “Hispanic” if

the assistant thought the person looked Hispanic – an undertaking

as to which another Government expert, Margo Frasier, cast serious

doubt. Id. at *54 (“I don’t think you can assume that you can

recognize an Hispanic.”).

Had Dr. Lamberth’s assistants

testified, however, it is possible that they might have provided

the court with additional information about their methods and

ability to observe to render Dr. Lamberth’s study more credible.

In any event, the presence of credibility determinations does not

render the Government’s case unreasonable.

Finally, Dr. MacDonald was presented to address ACSO’s law

enforcement practices after traffic stops and opined that ACSO

disparately treated Hispanics in stop outcomes and search

outcomes. His statistics did show that in certain categories,

Hispanics were disproportionately represented. The court found

Dr. MacDonald to be credible but declined to accept certain

inferences urged by the Government. Notably, Dr. MacDonald’s

analysis relied on statistical analysis that failed to

sufficiently compare the treatment of Hispanics to others who were

similarly situated. Id. at *27. One problem was not marshalling

16

enough of the right evidence and not ruling out obvious nondiscriminatory explanations for the ACSO’s actions. For example, Dr. MacDonald’s statistical analysis claimed to control for the “stop reason” but critically failed to control for either the stop outcome or search outcome, even though those were the very things he claimed to be measuring. Id. at *76-83. Dr. MacDonald’s conclusions were also rebutted in part by one of Sheriff Johnson’s fact witnesses, Officer Mark Dockery, who provided ACSO data that further indicated that the inferences the Government wished to draw from the statistical data were not persuasive. Id. at *2030. Finally, Dr. Lamberth’s failure to provide a reliable benchmark of Hispanic drivers further undermined Dr. MacDonald’s ability to testify as to alleged discriminatory checkpoint stops. Id. at *76.
To be sure, the court was troubled by aspects of the Government’s attempt to urge characterizations of the evidence that were not supported. For example, the Government attributed much of the impetus for Sheriff Johnson’s alleged misconduct to the Government’s own 287(g) immigration program. But at trial, it became apparent that, assuming the Government’s witnesses were to be believed, the Government nevertheless overstated the role of the 287(g) program in its case, and ICE officials in charge of that program who testified at trial took personal responsibility for conduct that the Government wished to place at the feet of
17

ACSO (e.g., the authority to permit an ACSO officer to work as a 287(g) Task Force Officer for ICE outside the jail).
In the end, resolution of this case required significant effort and careful analysis. See Paisley, 957 F.2d at 1168. The Government survived summary judgment in substantial part, and this court spent one year and 250 pages resolving the complex issues presented. The persuasiveness of the Government’s fact witness testimony ultimately depended upon inferences drawn from credibility determinations and other contextual evidence. See Mortensen v. Astrue, 428 Fed. App’x 248, 250-51 (4th Cir. 2011).5 Although this court was not persuaded by the Government’s evidence to establish a pattern or practice of unlawful conduct, it concludes that there was nevertheless a sufficient factual and legal basis for the Government to have made the decision to bring the action. This conclusion is bolstered by the fact that this appears to have been the first such pattern or practice case to actually reach trial. See Abramson v. United States, 45 Fed. Cl. 149, 152 (Fed. Cl. 1999) (noting that courts are hesitant to find the Government’s position to not be substantially justified where a question is presented for the first time); cf. Hyatt v. Shalala, 6 F.3d 250, 256 (4th Cir. 1993) (finding Government justified in litigating unsettled issue on appeal).
5 Non-binding unpublished decisions are cited only for the persuasive value of their reasoning.
18

For all these reasons, and those stated in this court’s

opinion on the merits, although the Government failed to prevail

in its case, its claims had a reasonable basis in law and fact.

Sheriff Johnson’s motion for an award of attorneys’ fees under the

EAJA will therefore be denied.

III. CONCLUSION

For the reasons stated, the Government’s motion to stay

Sheriff Johnson’s petition for fees and costs under the EAJA is

denied, as a stay would not promote judicial economy. Sheriff

Johnson’s entitlement to $23,297.20 in costs is undisputed.

However, because the Government’s claims were substantially

justified, Sheriff Johnson is not entitled to attorneys’ fees and

expenses under the EAJA.

IT IS THEREFORE ORDERED as follows:

1. The Government’s motion to stay Defendant’s petition for

fees and costs (Doc. 164) is DENIED;

2. The Clerk’s order staying consideration of bill of costs

is LIFTED, Defendant’s motion for costs (Doc. 161) is GRANTED, and

Defendant shall be awarded $23,297.20 in costs; and

3. Defendant’s motion for attorneys’ fees (Doc. 161) is

DENIED.

December 8, 2015

/s/ Thomas D. Schroeder United States District Judge

19

 
 U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)  

  

  
  

28 F.Supp.3d 499 United States District Court,
M.D. North Carolina.
UNITED STATES of America, Plaintiff, v.
Terry S. JOHNSON, in his official capacity as Alamance County Sheriff, Defendant.
No. 1:12cv1349. |
Signed June 20, 2014.
Synopsis Background: Government brought action against county sheriff through the Violent Crime Control and Law Enforcement Act alleging a pattern or practice of discriminatory law enforcement against Latinos in violation of the Fourth and Fourteenth Amendments. The sheriff’s office moved for summary judgment.

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
The United States of America (the “Government”) allege that Defendant Terry S. Johnson, in his official capacity as Sheriff of Alamance County, North Carolina, engaged in a pattern or practice of discriminatory law enforcement activities directed against Latinos, in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution. The Government brings this action through Section 210401 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141. (Doc. 1.) Before the court are cross-motions for summary judgment. (Docs. 86, 88.) For the reasons set forth below, the Government’s motion is denied and Johnson’s motion is granted in part and denied in part.

Holdings: The District Court, Thomas D. Schroeder, J., held that: [1] fact questions precluded summary judgment on equal protection claim; [2] Fourth Amendment did not apply to pattern of selective enforcement claim; and [3] fact issue existed as to whether office used checkpoints with programmatic purpose.
Motion granted in part and denied in part.
Attorneys and Law Firms *502 Michael J. Songer, Aaron S. Fleisher, Silvia J. Dominguez–Reese, United States Department of Justice, Washington, DC, for Plaintiff. S.C. Kitchen, Karlene S. Turrentine, Turrentine Law Firm, PLLC, Raleigh, NC, for Defendant.
  
  

I. BACKGROUND

Alamance County, located in central North Carolina, is

home to approximately 154,000 people. U.S. Census

Bureau, State & County QuickFacts, http://

quickfacts.census.gov/qfd/states/37/37001.html

(last

revised June 11, 2014). Of that number, approximately

66.6% are white (non-Hispanic), 19.2% are black, and

11.6% are Hispanic.1 Id. The county’s Hispanic

population is a recent phenomenon, having *503 grown

from 736 in 1990 to almost 17,000 in 2010. (Doc. 11–3 at

3; Doc. 1 ¶ 12.)

The Alamance County Sheriff’s Office (“ACSO”) is the largest law enforcement agency in the county and employs 266 total officers. (Doc. 89–2 at 7.) Johnson has been the sheriff since 2002. (Doc. 86–4 at 30.) On January 10, 2007, U.S. Immigration and Customs Enforcement (“ICE”) entered into a Memorandum of Agreement (“MOA”) with Johnson, which granted the ACSO limited authority to investigate and enforce immigration violations, pursuant to Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g) (“the 287(g) program”). (Doc. 89–4.) In June 2010, the Government began investigating Johnson and the ACSO regarding “allegations of discriminatory policing and unconstitutional searches and seizures.” (Doc. 89–58 at 2; Doc. 11–3 at 1.) On September 18, 2012, the Government

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U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)     
  
issued an 11–page summary of its investigation and detailed charges of discrimination, and it terminated the 287(g) program. (Doc. 1 ¶ 15; Doc. 11 at 8; Doc. 11–3.) This action followed. (Doc. 1 (filed Dec. 20, 2012).)
Generally, the Government contends that Johnson and the ACSO target Latinos for law enforcement actions, including traffic stops, vehicle checkpoints, and immigration referrals;2 foster a culture of bias against Latinos; and fail to take commonly used measures to prevent discriminatory policing. (Docs. 1, 89.) The Government argues that such actions violate the Fourth and Fourteenth Amendments, denying the Latino population of Alamance County equal protection of the laws. Johnson denies those allegations, arguing that he and his office pursue criminals, whether or not they are Latino, and denying that he has made derogatory statements about Latinos or fostered a culture of bias against Latinos at the ACSO. (Docs. 6, 87.)
Both parties have moved for summary judgment. (Docs. 86, 88.) Both parties have responded (Docs. 95, 96) and replied (Docs. 99, 101). Pursuant to this court’s May 8, 2014 order, the Government also filed a limited surreply on the issue of statute of limitations. (Doc. 106.) A hearing on the pending motions for summary judgment was held on June 13, 2014. As the case is highly fact-intensive and the parties dispute essentially all of the substantive facts, further factual discussion is not warranted. Facts will be introduced as needed in the legal analysis and construed in favor of the non-moving party, as appropriate.
II. ANALYSIS
A. Standard of Review “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing that no genuine dispute of material fact remains. Where the non-moving party has the burden of proof, the moving party is entitled to summary judgment if it shows the absence of material disputed facts. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). For the purposes of these motions, the court regards statements of the non-moving party as true and draws all inferences in the non-moving party’s favor. Anderson v. Liberty Lobby,
  
  

  
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But a nonmoving party must establish more than the “mere *504 existence of a scintilla of evidence” to support his position. Id. at 252, 106 S.Ct. 2505. If the evidence is “merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505. Ultimately, summary judgment is appropriate where the non-movant fails to offer “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505.
Both parties focus their motions for summary judgment on the two counts alleged in the Government’s complaint—violations of the Fourteenth and Fourth Amendments as brought through § 14141—but Johnson raises two partial defenses that should be addressed first: statute of limitations and mootness.
B. Statute of Limitations [1] Johnson asserts that the Government’s action is subject to a four-year statute of limitations, 28 U.S.C. § 1658(a), and that the discriminatory acts alleged are discrete incidents rather than a continuing violation. (Doc. 99 at 6–10.) He therefore contends that the Government cannot predicate § 14141 liability on any acts that occurred prior to December 20, 2008.3 (Id.) The Government argues that no statute of limitations applies to § 14141 (Doc. 106 at 2–3) and, moreover, that its claims seek to remedy an ongoing pattern or practice of civil rights violations, for which no limitations period applies (id. at 3–5).
The parties agree that § 14141 contains no statute of limitations. The Government relies on a Magistrate Judge’s report and recommendation in United States v. City of Columbus, Ohio, Civ. A. No. 2:99CV1097, 2000 WL 1133166 (S.D.Ohio Aug. 3, 2000), which concluded that § 14141 had no limitations period. Id. at *10. The Magistrate Judge rejected an argument that the two-year statute of limitations applicable to claims under 42 U.S.C. § 1983 applied to the § 14141 claims in that case, noting that “in actions brought in its sovereign capacity on behalf of the public interest, the United States is not bound by any limitations period ... unless Congress explicitly provides otherwise.” Id. Finding—without discussion—no express statute otherwise, the court declined to impose any limitation but quickly noted that the motion to dismiss stage was not “the proper vehicle for invoking such principles.” Id. Thus, the court’s conclusion is dicta and omits any discussion of § 1658’s four-year limitations period.
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U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)  
  
  
Section 1658 is entitled “Time limitations on the commencement of civil actions arising under Acts of Congress” and provides:
Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.
28 U.S.C. § 1658(a). The statute was enacted December 1, 1990, some four years before § 14141’s enactment on September 13, 1994. Therefore, by the plain language of § 1658, it applies to claims under § 14141, unless “otherwise provided by law.”
The Government first argues that “[t]he principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign Government to enforce a public right, or to assert a public interest, is established past all controversy or doubt,” citing the dissent in Occidental Life Insurance *505 Co. v. EEOC. 432 U.S. 355, 382, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) (quoting United States v. Beebe, 127 U.S. 338, 344, 8 S.Ct. 1083, 32 L.Ed. 121 (1888)). In Occidental Life, the majority held that EEOC enforcement actions are not subject to State statutes of limitations, and the dissent argued that the notion that the Government was suing as sovereign was misplaced because it was not suing to redress its injury, but rather the injury of others. Id. at 383, 97 S.Ct. 2447. Johnson contends that the same could be said here.4 Moreover, here, the Government must contend with § 1658—a federal, not State, statute of limitations—which was not enacted at the time of Occidental Life. The Government has failed to consider this development.
[2] Even assuming Johnson is correct and § 1658 limits § 14141 actions, however, it is not clear when a § 14141 claim accrues. Neither party has pointed the court to any case law addressing that question, and the court has found none. In the absence of direct authority, Johnson analogizes § 14141 to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., which addresses unlawful discrimination in employment. He contends that § 14141’s “pattern or practice” requirement is similar to an “unlawful employment practice,” which is predicated on a discrete incident or incidents. (Doc. 99 at 8–9.) Under Title VII law, each wrongful act is considered independently from other acts for timeliness purposes, and “discrete acts that fall within the statutory
  
  

  
time period do not make timely acts that fall outside the time period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
The Government responds that Johnson’s analogy to an unlawful employment practice is inapt because Congress enacted specific time limitations for Title VII claims but did not for § 14141. (Doc. 106 at 2–3.) It also contends that § 14141’s “pattern or practice” is not similar to discrete acts of unlawful employment practices, which accrue when they occur, but instead that a § 14141 claim “ ‘accrues’ only after a jurisdiction engages in a pattern or practice of violating federal law.” (Id. at 3 n. 2.) The Government maintains that each individual discriminatory act it alleges is not a § 14141 claim in and of itself, but rather is “relevant evidence to proving the existence of a larger pattern.” (Id.)
*506 The Government further argues that § 1658 is inapplicable because it seeks injunctive relief against an ongoing violation. Although the Government presents evidence of conduct and statements reaching back to 2007, some of the evidence is more recent (e.g., Docs. 89–16, 89–21, 89–22 (emails from 2010, 2011, and 2012)) and some of the evidence is not clearly from a specific date or time period (e.g., Doc. 89–27 at 4 (“primarily” the terms “wetback” and “TONC”5 heard at ACSO, without a specific time period identified for use of those terms)). The statistical reports submitted by the United States’ proposed experts include data from as recent as 2013. (See Docs. 89–42, 89–45.) This is consistent with the Government’s complaint, which alleges that the ACSO’s violations began in “at least January 2007” and continued “to the present.” (Doc. 1 ¶ 1.) The Government seeks injunctive relief accordingly. (Id. ¶¶ 80–82.)
[3] When the evidence is viewed in the light most favorable to the Government, as it must be at this stage, the record supports claims of a pattern or practice of unconstitutional behavior occurring through 2013. As a result, summary judgment in favor of Johnson as to certain acts falling outside the four-year period of § 1658 is not warranted. Statutes of limitations apply to claims, not evidence. See Brinkley–Obu v. Hughes Training, Inc., 36 F.3d 336, 346 (4th Cir.1994) (stating, regarding a Title VII claim, that “[s]tatutes of limitations do not operate as an evidentiary bar controlling the evidence admissible at the trial of a timely-filed cause of action.”) Therefore, even assuming application of a statute of limitations, evidence of events or statements occurring in 2007 and 2008 may be considered as long as it informs a proper claim of a pattern or practice of unconstitutional conduct extending through more recent years. Johnson’s motion on this ground will therefore be denied.
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U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)  

  

  
  
D. Equal Protection

C. Mootness [4] The Government’s complaint alleges that the ACSO automatically referred Latino arrestees to ICE but did not refer similarly-situated non-Latinos. (Doc. 1 ¶¶ 47–51.) The ACSO had the authority to investigate potential immigration violations pursuant to the MOA between ICE and the ACSO. (Id. ¶¶ 13–14.) Johnson contends that these allegations are now moot because ICE terminated the MOA on September 18, 2012, and the ACSO no longer has authority to investigate arrestees for immigration violations or to refer them to ICE. (Doc. 87 at 18 (citing Doc. 11 at 7–8).) Johnson previously raised this argument in his motion for judgment on the pleadings. (Doc. 11 at 7–8.) The Government contends that this court has already rejected Johnson’s mootness arguments in its order denying judgment on the pleadings. (Doc. 95 at 25–26.) It again asserts, as it did in response to Johnson’s motion for judgment on the pleadings, that “[a] fact cannot be moot,” and that evidence of how the ACSO handled Latino arrestees while the MOA was in place can still support its larger § 14141 claims. (Id. at 26.)
As this court previously indicated, “the non-existence of one ground or theory does not render the larger claim moot.” (Doc. 19 at 10 (citing Simmons v. United Mtg. & Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir.2011)).) Summary judgment applies to claims, not evidence in support of a claim. See Fed.R.Civ.P. 56(a). Had the Government’s § 14141 claim been solely predicated on the ACSO’s management of Latino arrestees under a now-terminated MOA, the claim might now be moot. But that is *507 not the case. The Government’s theory of the case6 simply seeks to use factual evidence regarding the ACSO’s treatment of Latino arrestees while the MOA was in effect to bolster its broader evidence regarding the ACSO’s treatment of Latinos in an attempt to prove a pattern or practice of discriminatory law enforcement. Therefore, summary judgment in favor of Johnson is not warranted on mootness grounds.
The court now turns to the two central claims of the Government’s case under § 14141: that Johnson’s law enforcement activities violated the Equal Protection Clause of the Fourteenth Amendment and the Fourth Amendment. Both parties seek summary judgment in their favor on both claims.
  
  

1. Applicable law
[5] The Fourteenth Amendment’s Equal Protection Clause declares that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. The Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). It applies to all State action, including the enactment, administration, and enforcement of laws and regulations. Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir.1995).
[6] [7] [8] The Fourth Circuit has recognized that “[e]ven though a state law is facially neutral, its administration or enforcement can effect an unequal application by favoring one class of persons and disfavoring another.” Id. at 818–19. In this context, the plaintiff bears the initial burden of proving discriminatory administration or enforcement. Id. at 819. To do so, the plaintiff must show more than a disparate impact on a particular racial group; the plaintiff must show that the State action “was motivated, at least in part, by an ‘invidiously discriminatory’ intent.” Id. (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). Thus, a plaintiff must prove both discriminatory intent and effect to succeed. Id. at 819–20.
[9] Sometimes—but rarely—a pattern is so clear that nothing more than proof of the pattern is needed to find discriminatory intent. Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555 (citing Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), and Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), as examples). More often, courts must look to other evidence, including
(1) evidence of a “consistent pattern” of actions by the decisionmaking body disparately impacting members of a particular class of persons; (2) historical background of the decision, which may take into account any history of discrimination by the decisionmaking body or the jurisdiction it represents; (3) the specific sequence of events leading
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U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)     
  
up to the particular decision being challenged, including any significant departures from normal procedures; and (4) contemporary statements by decisionmakers on the record or in minutes of their meetings.
*508 Sylvia, 48 F.3d at 819 (citing Arlington Heights, 429 U.S. at 266–68, 97 S.Ct. 555, and Talbert v. City of Richmond, 648 F.2d 925, 929 (4th Cir.1981)).
[10] “Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.2001). Where the difference in treatment is based on ethnicity—as alleged here—the court applies “strict scrutiny.” Fisher v. Univ. of Tex. at Austin, –––U.S. ––––, ––––, 133 S.Ct. 2411, 2417, 186 L.Ed.2d 474 (2013) (government decisions that touch upon an individual’s race or ethnic background are subject to strict scrutiny).
2. Challenge to Dr. Lamberth’s report
[11] As part of its primary case, the Government has proffered two expert reports, one of which is from John Lamberth, Ph.D. Dr. Lamberth’s report purports to show that the ACSO is “significantly more likely to stop and cite Hispanic motorists than non-Hispanic motorists on three major roadways in Alamance County.” (Doc. 89–42 at 19.) Johnson argues, in response to the Government’s motion for summary judgment, that the court should strike the report under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), because it is “junk science.”7 (Doc. 96 at 25–28.) The Government responds that Johnson does not ask the court to exclude Dr. Lamberth as an expert (Doc. 101 at 11 n. 4), which is not entirely responsive, because a successful motion to strike the report would yield the same result. Indeed, Johnson has followed Local Rule 7.6, which allows the challenge to a separate piece of evidence within a summary judgment brief without a separate motion to strike. Because this is a threshold evidentiary question, it will be addressed first.
Johnson argues that Dr. Lamberth’s method of having observers identify Hispanic drivers is not generally accepted. See Daubert, 509 U.S. at 594, 113 S.Ct. 2786. Johnson relies on the testimony of his own expert for this
  
  

  
proposition, as well as on a separate study. (Doc. 96 at 26.) However, the Government notes, Johnson’s expert, a statistician, conceded in deposition that he is not familiar with the methods of observation that are accepted in the field of criminology or the academic literature on observational benchmarking. (Doc. 101–10 at 18–25.) Dr. Lamberth, in contrast, relies on several peer-reviewed studies to support his observational method (Doc. 101 at 11–12), and the Government cites the decisions of several courts it says have relied on Dr. Lamberth’s methods. See, e.g., State v. Soto, 324 N.J.Super. 66, 734 A.2d 350, 352–54 (N.J.Super. Ct. Law Div.1996). Johnson also charges that Dr. Lamberth did not properly train his observers, attacks the controls, if any, over them, and argues that Dr. Lamberth’s selection of roads for observation are not representative. (Doc. 96 at 27–28.)
Unfortunately, throughout his argument Johnson fails to cite to the record, and the court will not search it for support. L.R. 7.2(a) (“Each statement of fact should be supported by a reference to a part of the official record.”). On this record, the Government *509 has provided evidence to support Dr. Lamberth’s methods and results, and Johnson has not properly advanced sufficient evidence that establishes that they are unreliable or invalid. Therefore, while the determination whether Dr. Lamberth’s opinions are the product of valid and reliable methods may be the subject of further debate, Johnson’s request to strike Dr. Lamberth’s report falls short at this time and will be denied.
3. Evidence presented
[12] The Government’s evidence of an unlawful pattern or practice falls into five general categories: (1) statistical studies and rebuttals purporting to prove a discriminatory pattern of traffic stops, (2) depositions and declarations from current and former ACSO employees, (3) emails among ACSO employees, (4) depositions and declarations from Alamance County residents and others who have interacted with the ACSO, and (5) depositions of other North Carolina sheriffs. To prove a pattern of discriminatory traffic stops and arrests, the Government relies both on statistical studies attempting to capture a broad picture of stops conducted in Alamance County and on specific stops of identified individuals as examples. To prove discriminatory intent, the Government relies on evidence relating to the pattern itself, statements and directives made by ACSO leadership, derogatory terms for Hispanics used at the ACSO, emails and other
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U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)     
  
evidence demonstrating a culture of anti-Latino bias at the ACSO, a lack of training, and a lack of anti-discrimination preventative measures allegedly used commonly by other law enforcement agencies.
Johnson rebuts the charges against him in the complaint and in the Government’s summary judgment motion by presenting a statistical study of his own that purports to disprove allegations of anti-Latino bias; by denying, explaining, and in some cases contextualizing specific examples cited by the Government; by proffering evidence from ACSO leadership and ACSO deputies that contradicts the Government’s evidence; and by attacking the credibility of the Government’s witnesses.
a. Examples of disputed facts
An exhaustive review of the evidence is not warranted at this stage because it is clear that the Government has presented evidence which, if credited, demonstrates both disparate impact and discriminatory intent, but there are genuine disputes over material facts.
For example, the Government alleges that Johnson ordered subordinates to “go get them Mexicans” and told a reporter that “[i]n Mexico, there’s nothing wrong with having sex with a 12, 13–year–old girl.” (Doc. 89 at 4, 7.) Johnson admits saying “go get them Mexicans” to subordinates but states that it was in the context of a discussion regarding Mexican gang members committing car break-ins and vandalism and that his subordinates understood the directive to mean “go get the people that were responsible for the crimes.” (Doc. 96 at 2 (citing Doc. 96–1 at 4–5).) Similarly, Johnson argues that the reporter distorted his statement. Johnson says that he was referring only to “the criminal element”—not Latinos generally (id. at 8) and that it was in reference to a specific case in which a father traded his 13–year–old daughter to drug traffickers (Doc. 87 at 9).
The Government has produced evidence that Johnson used derogatory terms to describe Latinos and instructed his subordinates to arrest Latinos indiscriminately. For example, former ACSO officer Adam Nicholson stated that after the owner of the Rocky Top mobile home park complained to Johnson about “Mexicans” in the park, Johnson told him: “I want every *510 chili-shitter in that park arrested.” (Doc. 89 at 5 (citing Doc. 89–6 ¶ 9).) In response, Johnson denies ever saying that (Doc. 96 at 5 (citing Doc. 96–10 at 35)) and attacks Nicholson’s
  
  

  
credibility, stating that he had a sexual harassment complaint filed against him, that he was demoted and moved to patrol, and that he actively supported Johnson’s electoral opponent (id. at 6). Similarly, the Government has produced other evidence that ACSO officers used derogatory terms, including “wetback,” “beaner,” “spic,” “taco,” and “taco eater.” (Doc. 89 at 9.) In response, Johnson proffers evidence from deputies who claim never to have heard such terms used at the ACSO and contends that the Government’s evidence does not specifically relate to the time during which Johnson was Sheriff. (Doc. 96 at 11–13.)
The Government also presented evidence of several individual traffic stops, which are allegedly indicative of the ACSO’s pattern of discriminatory law enforcement. Johnson disputes them. The notable development here is that in the complaint, the Government alleged five specific stops it suspicion or probable cause. (Doc. 1 ¶ 37.) However, Johnson has now produced evidence of a legal basis for each of these stops except one—which Johnson claims he cannot investigate because the complainant fails to provide sufficient facts to do so. (Doc. 87 at 13–16.)8 In response, the Government identified three more alleged incidents of illegal stops, but Johnson has again provided evidence demonstrating a legal basis for each of them. (Doc. 96 at 19–20.) Consequently, Johnson contends the ACSO is entitled to summary judgment against the Government because the ACSO had a legal basis for each of the Government’s incidents. Even assuming no Fourth Amendment violations, however, the stops all involved Latinos and may be some evidence of discriminatory enforcement in violation of the Fourteenth Amendment if other additional evidence—e.g., the statistical studies—is believed.
Other disputed incidents involve stops at checkpoints. The Government proffered evidence that a white Alamance County driver, Paul Crotts, was waved through a checkpoint near a predominately Hispanic mobile home park. (Doc. 89–15 at 4–5.) When Crotts attempted to produce his license, ACSO officer Sara Keller allegedly waved him through and stated, “No, we’re here to get us some.” (Id.) Crotts understood Keller to be referring to Hispanics. (Id. at 9.) Crotts’ wife, Paula Crotts, who *511 was also in the car, confirmed this account. (Doc. 89–54 at 7.) Keller, on the other hand, denies ever waving anyone through a checkpoint (Doc. 86–34 at 4), and Johnson contends that the checkpoint at issue was not intended to target Latinos, but instead was meant to find gang members (Doc. 87 at 17–18).
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U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)  
  
  
b. Disputed statistical studies
The validity and reliability of both parties’ statistical studies is also contested. The Government’s Dr. Lamberth conducted an observational study of three roads in Alamance County to create a benchmark of traffic violators and compared that benchmark to a database of approximately 10,000 citations from 2008 to 2013. (Doc. 89–42.) He found that the “ACSO is significantly more likely to stop and cite Hispanic motorists than non-Hispanic motorists on three major roadways in Alamance County.” (Id. at 19.) John MacDonald, Ph.D., the Government’s other proposed expert, focused on three databases (stops, citations, and arrests) to determine likely outcomes of stops based on ethnicity and to identify individual ACSO officers who stopped, cited, and arrested Latinos at higher rates than their colleagues. (Doc. 89–45.) He found that Latinos were more likely than non-Latinos to be arrested following a stop, more likely to be searched, and less likely to be found carrying contraband during a search, which “suggest[s] that a lower threshold of suspicion is being applied to Latinos.” (Id. at 13.) He also found “a large number of outlier officers ... who are stopping, citing, and arresting Latinos at a higher rate” than other ACSO officers. (Id.)
Johnson challenges the validity of both studies. As discussed earlier, he argues that Dr. Lamberth’s method of observational benchmarking is inaccurate because race/ethnicity is difficult to determine visually and that Dr. Lamberth’s method is “not accepted as valid in the scientific community.” (Doc. 96 at 16.) He also faults the study for its choice of roadways, its Hispanic surname analysis, and its failure to consider written or verbal warnings given in lieu of a citation. (Id. at 14–18.) He challenges Dr. MacDonald’s study on the basis that it does not support the allegation that ACSO deputies are stopping Latinos at a higher rate than non-Latinos. (Id. at 18.) He contends that a better method of analysis would be to compare Alamance County to comparable nearby counties, like Randolph and Orange Counties. (Id. at 18–19.)
Johnson also proffers his own proposed expert, David Banks, Ph.D., who submitted a statistical study. (Doc. 86–16.) Dr. Banks focused on checkpoint siting, checkpoint outcomes, and non-checkpoint traffic stops, using data from 2009 to 2012. (Id.) He found “no statistical evidence that checkpoints were sited in ways that targeted the Latino population” and that non-checkpoint traffic “stop rates [for Latinos] match the population rates” of Latinos, suggesting that the ACSO is not targeting Hispanic motorists. (Id. at 6, 13–14.) He also found that, while there were differences between Hispanic and non-Hispanic drivers’ arrest rates, those differences
  
  

  
were not statistically significant. (Id. at 10.)
The Government challenges Dr. Banks’ study on several grounds. In particular, it faults the study for using unadjusted census data from Alamance and other counties. (Doc. 95 at 17–19.) The Government contends that unadjusted census data do not “account for the driving age population of various ethnic groups, the rate at which drivers from various ethnic groups violate traffic laws, variations in traffic patterns and driving habits on particular roadways, [or] deployment of officers” and are therefore an unreliable comparator. (Id. at 18.) *512 The Government has submitted an additional report from Dr. Lamberth, identifying problems with, and rebutting, Dr. Banks’ report. (Doc. 89–43.)
c. The Government’s “uncontested” evidence
At the June 13, 2014 hearing, the Government claimed to have three categories of uncontested evidence that entitle it to summary judgment on the issue of discriminatory intent: discriminatory directives from ACSO leadership, a failure to take remedial steps after receiving notice of alleged discrimination, and a failure to discipline any ACSO officers for discriminatory conduct.
Much of the evidence the Government points to in its first category is contested, however. For example, counsel for the Government characterized the incident in which Johnson directed three officers to “go get Mexicans” as uncontested. To reach this conclusion, however, the Government makes the ambitious, and in this context extraordinary, argument that this court should disregard Johnson’s testimony to the contrary because it is “self-serving.” (Doc. 89 at 19–20.) In support of that position, which it claims is “well-established” in the Fourth Circuit (id. at 19), the Government cites Williams v. Giant Food, Inc., 370 F.3d 423 (4th Cir.2004). But there, the Fourth Circuit held that an employee’s testimony that her job performance evaluations were “unfair and untrue and incorrect” was insufficient to create a genuine dispute of material fact on the issue whether it would have been futile for her to apply for a promotion. Id. at 433. The court characterized that testimony as a “self-serving opinion ” and stated that “absent objective corroboration, [it cannot] defeat summary judgment.” Id. (emphasis added). However, the court credited the employee’s other testimony regarding facts, even if the testimony was in her interest as a party.9 See, e.g., id. at 432 (crediting the reasonable inference
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U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)  
  
  
from employee’s testimony that job postings did not appear in her store).
Here, Johnson’s denials, though in his interest as a party, are factual: he testified that he did not use anti-Hispanic derogatory terms or order deputies to target Hispanics. This court must credit that testimony at the summary judgment stage. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Additionally, in this particular incident, Johnson provided further context for the directive “go get Mexicans,” which, if believed, casts doubt on the Government’s case. (See Doc. 96–1 at 4–5.) These disputes present classic credibility battles, and the Government cannot have it its way simply because *513 it concludes that the deputies are more believable in this context.
The Government’s second category of “uncontested” evidence—the ACSO’s failure to take remedial steps after receiving notice of alleged discrimination from a community group, the federal investigation itself, and resident complaints (Doc. 89 at 17–18)—depends in large part on its first category and on other contested evidence, such as the statistical studies. If no discrimination was occurring, then the ACSO could hardly be faulted for failing to take remedial steps. This category may take on more significance if discrimination is proven at trial, but it cannot stand alone to support summary judgment.
The Government’s third category—the ACSO’s alleged failure to discipline officers for discriminatory conduct or statements—is factually underdeveloped. For example, the Government points to ACSO officer Mario Wiley’s 2010 email to colleagues, forwarding a video game, in which the goal is to kill “Mexican Nationalist[s],” “Drug Smuggler[s],” and “Breeder[s]” coming over the U.S.-Mexico border, and the final screen of the game tells the player how many “wetbacks” have been hit. (Doc. 89–16.) However, Wiley was a detention officer who did not conduct stops and arrests but apparently worked only at the jail. There is no evidence that Johnson himself knew of the game until after Wiley’s deposition in this litigation, and it is unclear from the record whether any of the ACSO leadership knew of it. Without knowledge of the alleged actions, ACSO leadership could not have disciplined the officers. Moreover, it is unclear from the record whether the email was ever sent to any ACSO deputy responsible for conducting traffic stops or influenced deputies’ law enforcement practices. Thus, while this is some evidence of intent, its import is not clear on this record.
  
  

  
4. Conclusion
Credibility is questioned, facts are disputed, and dueling statistical studies purporting to show divergent truths are presented. Viewing the evidence in the light most favorable to Johnson, the Government has not produced undisputed facts demonstrating disparate impact and discriminatory intent as a matter of law. And yet, the Government has presented evidence, which, when regarded in the light most favorable to it, prevents Johnson from obtaining summary judgment in his favor. A trial is necessary to resolve these disputes over material facts.
E. Fourth Amendment The sum and substance of the Government’s claims under the Fourth Amendment are stated thinly in the complaint’s second claim for relief as follows:
75. Defendant and his agents, including ACSO deputies, have unreasonably seized numerous persons in Alamance County. These unreasonable seizures include seizures made without probable cause or reasonable suspicion.
76. Moreover, Defendant and his agents engage in a pattern of making pretextual traffic stops motivated by the ethnicity of the driver rather than a traffic infraction.
77. The unreasonable seizures made by Defendant and his agents constitute a pattern or practice by law enforcement officers that deprives persons of their rights under the Fourth and Fourteenth Amendments, in violation of 42 U.S.C. § 14141(a).
(Doc. 1 ¶¶ 75–77.) The Government now argues that this claim encompasses the ACSO’s alleged discrimination on the basis of ethnicity in initiating traffic stops and use of vehicular checkpoints for general law enforcement purposes. (Doc. 89 at *514 36–40.) Johnson contends that the first does not state a claim under the Fourth Amendment, but rather under the Equal Protection Clause of the Fourteenth Amendment. (Doc. 96 at 36–38.) He contends that the second was not properly pleaded in the Government’s complaint and is being unfairly raised at this late stage, without proper notice. (Id. at 38–40.) He
8  

U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)     
  
further maintains that the “investigational checkpoints” the ACSO conducts are legal. (Id. at 38.) The court will address each claim in turn.
1. Discriminatory pattern of traffic stops
[13] [14] [15] The Fourth Amendment protects against “unreasonable searches and seizures” by the Government—from brief, investigatory stops of persons or vehicles to traditional arrest. U.S. Const. amend. IV.; see United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). “[T]he Constitution prohibits selective enforcement of the law based on considerations such as race,” including investigatory stops and arrests protected by the Fourth Amendment. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, “the constitutional basis for objecting to intentionally discriminatory application of [such] laws is the Equal Protection Clause, not the Fourth Amendment.” Id.
The Government argues that it has a Fourth Amendment claim independent of its Equal Protection claim because “judges may still consider the ‘programmatic purpose’ of law enforcement practices” under the Fourth Amendment. (Doc. 101 at 18.) The Government relies in part on Brigham City, Utah v. Stuart, in which the Supreme Court noted that it had “held in the context of programmatic searches conducted without individualized suspicion—such as checkpoints to combat drunk driving or drug trafficking—that an inquiry into programmatic purpose is sometimes appropriate.” 547 U.S. 398, 405, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (emphasis in original) (citations and internal quotation marks omitted). The Fourth Circuit read Stuart and other Supreme Court cases to suggest that “when analyzing a search made as the result of a routine police procedure, such as the policy of locating weapons in towed cars ..., the court should examine the programmatic purpose of the policy.” Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir.2009). In Hunsberger, the court specifically did not inquire into programmatic purpose because “a standardized procedure” was not at issue. Id.
[16] Individual traffic stops are not suspicionless, standardized procedures. They are justified on the basis of individualized, reasonable suspicion or probable cause, which is assessed using objective facts known to the officer; an inquiry into the subjective motivations of the officer conducting the stop, even if the officer was
  
  

  
motivated by ethnicity, is not warranted. Whren, 517 U.S. at 813, 116 S.Ct. 1769. Specific individual stops relied on by the Government as examples of a broader pattern of discriminatory law enforcement are analyzed applying Fourth Amendment principles. To be sure, any lack of a legal basis for a stop may be evidence of unlawful ethnic targeting under the Fourteenth Amendment. However, to the extent the Government is challenging a pattern of allegedly discriminatory individual traffic stops on the basis of ethnicity, Johnson is correct that the Equal Protection Clause, not the Fourth Amendment, applies. See, e.g., Floyd v. City of New York, 959 F.Supp.2d 540, 565–72 (S.D.N.Y.2013) (race matters to Equal Protection Clause jurisprudence, but not Fourth Amendment *515 jurisprudence).10 To this limited extent, therefore, Johnson’s motion will be granted.
2. Checkpoints for general law enforcement purposes
[17] The Government asserts that the ACSO uses checkpoints for general law enforcement purposes, which is unconstitutional. (Doc. 89 at 39–40; Doc. 101 at 19–21.) Johnson denies that the ACSO’s use of checkpoints is improper but argues that this claim was not part of the complaint and therefore is not properly before the court. (Doc. 96 at 38–40.)
[18] Although the Government refers to deposition testimony and questions as evidence that the claim was part of its case, “it is the complaint—not depositions or interrogatories—that provides ‘fair notice’ to defendants of the allegations against them.” Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 420 (4th Cir.2014) (affirming district court’s post-trial ruling that a particular claim was sufficiently pleaded). The complaint need not “use any precise or magical words” or “connect the dots” of its factual allegations in order to assert a particular claim. Id. at 418. It must simply allege sufficient facts to support the claim in order to put the defendant on fair notice. Id. at 417–20.
Here, the broad language of paragraphs 75 through 77 of the complaint must be read in the context of the facts that precede them. The Government’s second claim for relief re-alleges and incorporates the complaint’s previous factual allegations (Doc. 1 ¶ 73), but at no point does the complaint assert facts regarding checkpoints being used improperly for general law enforcement purposes apart from any alleged Latino targeting. The Government argues that the complaint is “replete with allegations that
9  

U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)  
  
  
ACSO employs checkpoints for improper purposes,” pointing to several paragraphs.11 (Doc. 101 at *516 19.) But the question is not whether the Government alleged the ACSO used checkpoints improperly. Clearly it alleged numerous times that the ACSO used checkpoints improperly on the basis of ethnicity (both in choosing locations and in choosing which vehicles to stop). The question is whether it alleged that the ACSO used checkpoints improperly for general law enforcement purposes—separate from the ethnicity-based claim. It did not.
[19] “Specific facts are not necessary” in a complaint, but the complaint must at least “ ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Even viewed liberally in favor of the Government, the complaint simply fails to allege facts that would put Johnson on notice of such a claim, nor did it state the claim itself with any specificity. At all times in this dispute, the Government’s theory has been discriminatory law enforcement against Latinos. (See, e.g., Doc. 1 ¶ 3 in case 1:11cv507; Doc. 19 at 4 in case 1:11cv507 (“[The Department of Justice’s] investigation centers on allegations that ACSO has engaged in a pattern or practice of discriminatory policing and unconstitutional searches and seizures against Latinos.”); Doc. 11–3 at 2 (which is also Doc. 52–1 at 3 in case 1:11cv507) (summary of findings in Government’s 11–page public letter of grievances to the ACSO begins thus: “Based on our careful review of the evidence, we have concluded that ACSO engages in a pattern or practice of discriminatory policing Latinos.”);12 Doc. 1 ¶ 1.)
Had the Government not been aware of the alleged behavior that gave rise to the claim at the time of the complaint but instead unearthed it in discovery, it could have sought to amend its complaint. But it has not done so. And while this court should “freely give leave” to amend a complaint (again, relief the Government has not requested), such leave should be denied if the non-moving party shows undue prejudice. Fed.R.Civ.P. 15(a)(2); see also Laber v. Harvey, 438 F.3d 404, 426–27 (4th Cir.2006). In that regard, Johnson’s counsel stated at the June 13, 2014 hearing that he had no actual notice of the Government’s intent to bring this claim until it was revealed in the Government’s summary judgment briefing and that, if it is allowed to proceed, he would need to conduct further investigation and discovery in order to defend himself and the ACSO.
[20] [21] The court concludes, therefore, that the complaint
  
  

  
raises a proper Fourth Amendment challenge to the extent it contends that the ACSO, as part of its alleged targeting of Latinos, has conducted checkpoints with a programmatic purpose that violates the Fourth Amendment. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (holding that checkpoints for drug interdiction are prohibited); Texas v. Brown, 460 U.S. 730, 743, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (suggesting in dicta that roadblocks with a pretextual lawful purpose that are in fact for an unlawful purpose are prohibited); cf. United States v. Martinez–Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (holding that “reasonably *517 located” checkpoints for illegal immigrants are allowed); Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (suggesting in dicta that checkpoints for driver’s licenses are allowed); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (holding that checkpoints for insobriety are allowed); Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (holding that checkpoints seeking information about a specific crime committed by another are allowed). And, the Government has presented evidence on that score sufficient to create a dispute of material fact. (See, e.g., Doc. 89–10 at 11 (checkpoint locations selected to target Hispanics), Doc. 89–35 at 6 (checkpoints set up to find illegal drugs)). But after eighteen months of litigation, with discovery long since completed and the scheduled trial term less than two weeks away, allowing the Government to proceed as to claims of generalized unlawful checkpoints untethered to the abiding central claim of this case would unduly prejudice Johnson. Therefore, Johnson’s motion will be granted to this extent.13
III. CONCLUSION For the reasons stated,
IT IS THEREFORE ORDERED that Johnson’s motion for summary judgment (Doc. 86) is GRANTED as to the Government’s Fourth Amendment claims in the second claim for relief regarding (1) the pattern of individual traffic stops, to the extent noted herein, and (2) the use of checkpoints for general law enforcement purposes unrelated to any alleged targeting of Latinos. In all other respects, the parties’ motions for summary judgment (Docs. 86, 88) are DENIED. Johnson’s motion to strike Dr. Lamberth’s report (Doc. 96 at 25–28) is DENIED. The Government’s remaining claims pursuant to § 14141 for violations of the Fourth and Fourteenth Amendments will proceed to trial.
10  

U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)  

  

  
  
All Citations

28 F.Supp.3d 499
  

Footnotes  

  

1  

The   parties   and   their   witnesses   use   the   terms   “Hispanic”   and   “Latino”   interchangeably.   To   the   extent   there   is   a   difference  

  

between  the  terms,  it  has  not  been  identified  as  significant  for  the  purposes  of  the  pending  motions,  and  so  the  court  will  use  the   terms  interchangeably.  

  

2  

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

  

  

3  

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

  

  

4  

The  Government  argued  at  the  hearing  that  it  is  suing  on  its  own  behalf,  in  its  capacity  as  a  sovereign,  not  on  behalf  of  the  Latino  

  

residents  of  Alamance  County.  It  was  unable  to  provide  legal  support  for  that  position,  other  than  the  text  of  §  14141  itself,  but   argued  that  civil  rights  violations  not  only  harm  the  individual  victims  but  also  broadly  injure  the  public’s  trust  in  law  enforcement  

and  the  integrity  of  the  criminal  justice  system.  No  party  has  provided  any  decision  that  considers  whether  the  United  States  is  

acting  in  its  sovereign  capacity  in  a  suit  pursuant  to  §  14141,  but  there  is  authority  for  the  proposition  that  the  Government  acts  

in  its  sovereign  capacity  when  enforcing  its  laws,  even  if  some  of  the  benefit  of  the  suit  inures  to  private  individuals:  

When  the  United  States  brings  suit  in  its  sovereign  capacity,  a  statute  of  limitations  does  not  ordinarily  apply  unless  Congress  

has   expressly   provided   otherwise.   Where,   however,   the   government’s   action   vindicates   a   private   interest,   the   defense   is  

typically  available.  

In   this   instance,   the   United   States   is   acting   in   its   sovereign   capacity.   In   suing   to   enforce   the   securities   laws,   the   SEC   is  

vindicating  public  rights  and  furthering  public  interests.  This  is  so  despite  the  fact  that  the  relief  sought  is  disgorgement  [which  

may  be  used  to  compensate  injured  victims].  

S.E.C.  v.  Calvo,  378  F.3d  1211,  1218  (11th  Cir.2004)  (citations  omitted).  

  

5  

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

  

  

6  

For  purposes  of  its  summary  judgment  motion,  the  Government  has  chosen  not  to  rely  on  evidence  regarding  the  ACSO’s  alleged  

  

automatic  referrals  of  Latino  arrestees  to  ICE.  (See  Doc.  95  at  26;  Docs.  88,  89.)     

7  

In   interpreting   Federal   Rule   of  Evidence   702,   Daubert  set  forth  several   factors  for   considering   an   expert   opinion’s   validity:  the  

  

testability   of   the   hypothesis;  its   subjection   to   peer   review;  the  potential   rate   of  error;   whether   controls/standards   were   used;   and  its  general  acceptance  in  the  relevant  scientific  community.  The  must  consider  its  “fit”  to  the  case.  509  U.S.  at  591–95,  113  

S.Ct.  2786.  

  

8  

For  example,  in  2011,  Juan  Carlos  Reyes  Montoya  was  stopped  by  an  ACSO  deputy  in  a  marked  car.  (Doc.  1  ¶  37(b);  Doc.  89  at  14;  

  

Doc.  89–53  ¶¶  1–5.)  According  to  Montoya,  the  deputy  saw  him  as  he  passed  him  on  Highway  54,  made  a  U-­‐turn,  and  followed   him  for  five  minutes  before  initiating  the  stop.  (Doc.  89–53  ¶¶  2–5.)  Montoya  says  he  was  unaware  of  any  observable  violation  or  

other   reason   why   the   deputy   would   have   pulled   him   over,   and   the   deputy   never   told   him   why.   (Id.   ¶¶   6,   8.)   Upon   request,  

Montoya   provided   his   consular  ID   in   lieu  of   a   driver’s   license;   he   was   arrested   and   cited  for   not  having   an   operator’s  license.  

(Id.¶¶   8–10.)   In   response,   ACSO   officer   Troy   Anthony   admits   to   the   stop   but   states   he   never   saw   the   driver   of   the   vehicle   and  

alleges   several   reasons   why   he   initiated   the   stop:   Montoya   was   driving   slowly   in   a   neighborhood   that   had   experienced   several  

break-­‐ins,  and  Anthony  had  run  a  license  plate  check  and  determined  that  the  car  was  registered  to  an  out-­‐of-­‐state  driver  with  a  

revoked   license.   (Doc.   87   at   14;   Doc.   86–27.)   Johnson   argues   that,   on   these   facts,   Anthony   had   reasonable   suspicion   to   initiate  

the  traffic  stop.  At  the  hearing,  the  Government  contended  that  it  was  unaware  of  any  evidence  that  the  deputy  investigated  the  

license  issue  before  making  the  stop.  Certainly,  a  fair  reading  of  the  deputy’s  declaration  is  that  he  did  so.  (Doc.  86–27  ¶¶  4–5.)  

Legality  of  the  stop  aside,  the  Government  argues  that  it  is  some  evidence  of  selective  enforcement  against  Latinos.  

  

9  

The  Government  also  cites  three  non-­‐binding  cases,  one  of  which  is  a  Magistrate  Judge’s  recommendation.  (Doc.  89  at  19–20.)  To  

  

the  extent  these  cases  are  inconsistent  with  Williams  and  Anderson,  they  are  not  persuasive  authority,  especially  in  the  context   raised  here.  See  Harris  v.  Home  Sales  Co.,  499  Fed.Appx.  285,  294  (4th  Cir.2012)  (rejecting  employee’s  statement  that  he  did  not  

return   to   work   because   his   boss   allegedly   told   him   to   take   the   week   off,   when   employee   conceded   he   had   already   completed  

  

11  

  

U.S.  v.  Johnson,  28  F.Supp.3d  499  (2014)  

  

  

  

paperwork  for  new  job);  Riley  v.  Honeywell  Tech.  Solutions,  Inc.,  323  Fed.Appx.  276,  277  n.  2  (4th  Cir.2009)  (rejecting  employee’s  

claims   that   job   candidate   was   “preselected”   and   of   alleged   “inconsistencies”   in   the   promotion   process   as   lacking   viable  

evidentiary  support   and   nevertheless  insufficient  to   constitute   pretext);   Whitlock   v.  Greenlee,   Civ.  A.  No.   1:10CV958,   2013   WL  

6247259,   at   *2   (M.D.N.C.   Dec.   3,   2013)  (stating   only   general   rule   that   self-­‐serving  statement   will   not   defeat   claim,   citing  Nat’l  

Enter.,  Inc.  v.  Barnes,  201  F.3d  331,  335  (4th  Cir.2000),  which  rejected  self-­‐serving  statement  of  a  party  as  to  the  alleged  contents  

of  sales  documents  when  the  party  failed  to  produce  the  actual  documents).  

  

10   Although  Melendres  v.  Arpaio  at  times  appears  to  consider  a  stop  based  on  race  as  a  violation  of  the  Fourth  Amendment,  the  

  

court  clarified  that  race  matters  only  to  the  Equal  Protection  Clause:   To  the  extent  that  there  was  a  legitimate,  pretextual  traffic  basis  for  the  original  stop  that  does  not  involve  race,  it  does  not  

matter   to   Fourth   Amendment   analysis   that   the   officer’s   underlying   decision   to   make   the   stop   may   have   subjectively   been  

based   on   considerations   of   race.   Further,   to   the   extent   that   other   factors   in   combination,   and   excluding   race   as   a  

consideration,   were   sufficient   to   justify   reasonable   suspicion   for   the   stops,   there   is   no   Fourth   Amendment   violation.   As  

discussed  below,  however,  such  motivations  do  make  a  difference  to  the  equal  protection  analysis.  

Melendres  v.  Arpaio,  989  F.Supp.2d  822,  898,  2013  WL  2297173,  at  *66  (D.Ariz.2013)  (citations  omitted).  

  

11   At  the  hearing,  the  Government  highlighted  paragraph  30  of  its  complaint  in  support  of  its  position.  Paragraph  30  provides  a  case  

  

in  point.  It  states,  in  its  entirety:   Defendant  Johnson  likewise  directs  his  deputies  to  target  predominantly  Latino  neighborhoods  for  increased  enforcement.  

Defendant   Johnson   often   voices   his   assumption   that   Latinos   are   responsible   for   Alamance   County’s   drug   trade   despite  

evidence   that   ACSO’s   rate   of   arrests   for   drug   crimes   has   declined   as   the   County’s   Latino   population   has   increased.  

Defendant  Johnson  orders  checkpoints  and  other  enforcement  activities  in  predominantly  Latino  areas  under  the  pretext  of  

drug   interdiction.   At   a   December   2008   staff   meeting   Defendant   Johnson   stated,   “We’ve   had   a   big   drop   in   the   Hispanic  

population,  but  we  still  got  a  lot  dealing  dope  and  we  still  got  a  lot  of  citizens  in  this  country  dealing  dope  with  them.”  

(Doc.   1   ¶   30.)   The   entire   paragraph,   even   the   sentence   mentioning   drug   interdiction,   is   focused   on   Johnson’s   alleged  

anti-­‐Latino   actions.   This   paragraph   gives   Johnson   no   notice   of   a   claim   based   on   checkpoints   for   general   law   enforcement  

purposes.  

  

12   The   Government’s   grievance   letter   that   spawned   this   lawsuit   is   extensive   and   specific   in   its   charges   and   relief   demanded.  

  

Nowhere  in  the  11–page  document  does  the  Assistant  Attorney  General  address  the  claim  the  Government  now  seeks  to  raise.   Rather,   all  charges   relate  to  the   “ACSO’s  practice   of   targeting   Latino   drivers   via  traffic   enforcement   and   vehicle   checkpoints.”  

(Doc.  11–3  at  9.)  

  

13   The  Government  notes  that  some  ACSO  deputies  testified  to  setting  up  checkpoints  to  find  illegal  drugs  as  part  of  general  law  

  

enforcement.  (See,  e.g.,  Doc.  89–62  at  3,  Doc.  89–35  at  6.)  If  this  testimony  is  to  be  believed,  the  Supreme  Court  has  condemned   such   checkpoints   as   unconstitutional.   See   City   of   Indianapolis,   531   U.S.   at   41–42,   121   S.Ct.   447   (stating   that   checkpoints   set   up  

“to  uncover  evidence  of  general  criminal  wrongdoing,”  including  drug  interdiction,  are  prohibited  by  the  Fourth  Amendment).  

  

  

  

  

  

  

  

  

12  

  

 
 18BC,CLOSED,SO30
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:11−cv−00507−TDS−JEP

UNITED STATES OF AMERICA v. ALAMANCE COUNTY, NORTH CAROLINA et al Assigned to: JUDGE THOMAS D. SCHROEDER Referred to: MAG/JUDGE JOI ELIZABETH PEAKE Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 06/23/2011 Date Terminated: 09/18/2012 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

UNITED STATES OF AMERICA

represented by SAMANTHA K. TREPEL U. S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., N.W. WASHINGTON, DC 20530 202−514−6255 Fax: 202−514−4883 Email: samantha.trepel@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant ALAMANCE COUNTY, NORTH CAROLINA
Defendant ALAMANCE COUNTY SHERIFF'S OFFICE
Defendant

represented by CLYDE BALLINGER ALBRIGHT ALAMANCE CO. ATTORNEY'S OFFICE PROSECUTORIAL DISTRICT 15−A 124 W. ELM ST. GRAHAM, NC 27253 336−570−4046 Fax: 336−570−6788 Email: clyde.albright@alamance−nc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN CHARLES PIERCE ALAMANCE CO. ATTORNEY'S OFFICE PROSECUTORIAL DISTRICT 15−A 124 W. ELM ST. GRAHAM, NC 27253 336−570−4050 Fax: 336−570−6788 Email: ben.pierce@alamance−nc.com ATTORNEY TO BE NOTICED
represented by S. C. KITCHEN Turrentine Law Firm, PLLC 920−B Paverstone Dr. Raleigh, NC 27615 888−308−3708 Fax: 888−308−3614 Email: ckitchen@turrentinelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 1:11-cv-507 document<docnum> filed <datefiled> 1 of 6

TERRY S. JOHNSON in his official capacity as Sheriff of Alamance County, North Carolina

S. C. KITCHEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/23/2011
06/27/2011
06/27/2011 06/27/2011 06/30/2011 06/30/2011 06/30/2011
06/30/2011 06/30/2011 06/30/2011 06/30/2011 07/05/2011 07/08/2011
07/08/2011
07/08/2011

# Docket Text
1 COMPLAINT against ALAMANCE COUNTY SHERIFF'S OFFICE, ALAMANCE COUNTY, NORTH CAROLINA, TERRY S. JOHNSON, filed by UNITED STATES OF AMERICA.(TREPEL, SAMANTHA) (Entered: 06/23/2011)
2 Summons Issued as to ALAMANCE COUNTY, NORTH CAROLINA, ALAMANCE COUNTY SHERIFF'S OFFICE, TERRY S. JOHNSON. (Attachments: # 1 Additional Summons − Sheriff's Office, # 2 Additional Summons − Johnson) (Sheets, Jamie) (Entered: 06/27/2011)
3 Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Sheets, Jamie) (Entered: 06/27/2011)
CASE REFERRED to Standing Order 30. (Sheets, Jamie) (Entered: 06/27/2011)
4 NOTICE of Appearance by attorney S. C. KITCHEN on behalf of Defendant ALAMANCE COUNTY SHERIFF'S OFFICE (KITCHEN, S.) (Entered: 06/30/2011)
5 MOTION to Dismiss for Lack of Jurisdiction by ALAMANCE COUNTY SHERIFF'S OFFICE. Responses due by 7/25/2011 (KITCHEN, S.) (Entered: 06/30/2011)
6 Alamance County Sheriff's Office BRIEF re 5 MOTION to Dismiss for Lack of Jurisdiction. (Attachments: # 1 unpublished opinion, # 2 unpublished opinion, # 3 unpublished opinion, # 4 unpublished opinion)(KITCHEN, S.) (Entered: 06/30/2011)
7 NOTICE of Appearance by attorney BENJAMIN CHARLES PIERCE on behalf of Defendant ALAMANCE COUNTY, NORTH CAROLINA (PIERCE, BENJAMIN) (Entered: 06/30/2011)
8 MOTION to Dismiss by ALAMANCE COUNTY, NORTH CAROLINA. Responses due by 7/25/2011 (PIERCE, BENJAMIN) (Entered: 06/30/2011)
9 BRIEF re 8 MOTION to Dismiss. (Attachments: # 1 Capers v. Durham Co. Sheriff Dept. − Unpublished Decision)(PIERCE, BENJAMIN) (Entered: 06/30/2011)
10 NOTICE of Appearance by attorney CLYDE BALLINGER ALBRIGHT on behalf of Defendant ALAMANCE COUNTY, NORTH CAROLINA (ALBRIGHT, CLYDE) (Entered: 06/30/2011)
11 NOTICE of Appearance by attorney S. C. KITCHEN on behalf of Defendant TERRY S. JOHNSON (KITCHEN, S.) (Entered: 07/05/2011)
12 DECLARATION Proof of Service that Summons, Complaint, and Notice of Right to Consent to Proceed before a United States Magistrate Judge were served on Defendant Alamance County, North Carolina, c/o Craig F. Honeycutt, County Manager by Certified Mail June 29, 2011 by Plaintiff UNITED STATES OF AMERICA. (TREPEL, SAMANTHA) (Entered: 07/08/2011)
13 DECLARATION of Proof of Service that Summons, Complaint, and Notice of Right to Consent to Proceed before a United States Magistrate Judge were served on Defendant Sheriff Terry S. Johnson, Alamance County Sheriffs Office by Certified Mail June 29, 2011 by Plaintiff UNITED STATES OF AMERICA. (TREPEL, SAMANTHA) (Entered: 07/08/2011)
14 DECLARATION of Proof of Service that Summons, Complaint, and Notice of Right to Consent to Proceed before a United States Magistrate Judge were served on Defendant Alamance County Sheriffs Office, c/o Sheriff Terry S. Johnson by Certified Mail June 29, 2011 by Plaintiff UNITED STATES OF AMERICA.

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07/08/2011
07/13/2011 07/14/2011 07/14/2011 07/14/2011
07/20/2011 07/21/2011 07/28/2011 07/28/2011 07/29/2011 07/29/2011 08/01/2011 08/01/2011
08/02/2011

(TREPEL, SAMANTHA) (Entered: 07/08/2011)
15 DECLARATION of Proof of Service that the Summons, Complaint, and Notice of Right to Consent to Proceed before a United States Magistrate Judge were served on Defendants in c/o Clyde B. Albright, County Attorney by Certified Mail June 29, 2011 by Plaintiff UNITED STATES OF AMERICA. (TREPEL, SAMANTHA) (Entered: 07/08/2011)
16 ANSWER to 1 Complaint by TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 07/13/2011)
17 AMENDED COMPLAINT against defendants, filed by UNITED STATES OF AMERICA.(TREPEL, SAMANTHA) (Entered: 07/14/2011)
18 MOTION for Summary Judgment by UNITED STATES OF AMERICA. Responses due by 8/18/2011 (TREPEL, SAMANTHA) (Entered: 07/14/2011)
19 MEMORANDUM in support of re 18 MOTION for Summary Judgment by UNITED STATES OF AMERICA. (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Text of Proposed Order)(TREPEL, SAMANTHA) Modified on 7/18/2011 to correct title of document (Taylor, Abby). (Entered: 07/14/2011)
20 ANSWER to Amended Complaint by TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 07/20/2011)
21 RESPONSE in Opposition re 5 MOTION to Dismiss for Lack of Jurisdiction, 8 MOTION to Dismiss filed by UNITED STATES OF AMERICA. Replies due by 8/8/2011. (TREPEL, SAMANTHA) (Entered: 07/21/2011)
22 MOTION to Dismiss Amended Complaint by ALAMANCE COUNTY, NORTH CAROLINA. Responses due by 8/22/2011 (PIERCE, BENJAMIN) (Entered: 07/28/2011)
23 BRIEF re 22 MOTION to Dismiss Amended Complaint. (Attachments: # 1 Exhibit Unpublished Decision: Capers v. Durham Co. Sheriff et al.)(PIERCE, BENJAMIN) (Entered: 07/28/2011)
24 MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment by TERRY S. JOHNSON. (Attachments: # 1 Affidavit Rule 56(d), # 2 Text of Proposed Order)(KITCHEN, S.) (Entered: 07/29/2011)
25 BRIEF re 24 MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment. (KITCHEN, S.) (Entered: 07/29/2011)
Motions Referred: 24 MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment to MAG/JUDGE WALLACE W. DIXON− (Garrett, Kim) (Entered: 08/01/2011)
26 ORDER signed by MAG/JUDGE WALLACE W. DIXON on 08/01/2011 granting 24 Motion for Extension of Time to File Response/Reply re 18 MOTION for Summary Judgment. IT IS THEREFORE ORDERED THAT the time for filing a response by theDefendant, Terry S. Johnson, to the Motion for Summary Judgment of the Plaintiff is extended until September 30, 2011. Responses due by 9/30/2011 (Taylor, Abby) (Entered: 08/01/2011)
27 REPLY, filed by Defendant ALAMANCE COUNTY, NORTH CAROLINA, to Response to 8 MOTION to Dismiss Complaint filed by ALAMANCE COUNTY, NORTH CAROLINA. (PIERCE, BENJAMIN) (Entered: 08/02/2011)

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08/09/2011 08/09/2011 08/10/2011 08/17/2011 08/17/2011 08/18/2011 08/18/2011 08/24/2011 08/31/2011 09/06/2011 09/27/2011 09/27/2011
09/30/2011 09/30/2011 10/13/2011
10/13/2011

28 MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment by ALAMANCE COUNTY, NORTH CAROLINA. (Attachments: # 1 Text of Proposed Order)(PIERCE, BENJAMIN) (Entered: 08/09/2011)
29 BRIEF re 28 MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment. (PIERCE, BENJAMIN) (Entered: 08/09/2011)
Motions Referred: 28 MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment to MAG/JUDGE WALLACE W. DIXON− (Garrett, Kim) (Entered: 08/10/2011)
30 ORDER signed by MAG/JUDGE WALLACE W. DIXON on 08/17/2011 granting 28 Motion for Extension of Time to File Response/Reply re 18 MOTION for Summary Judgment. Responses due by 9/30/2011 (Taylor, Abby) (Entered: 08/17/2011)
31 RESPONSE in Opposition re 22 MOTION to Dismiss Amended Complaint filed by UNITED STATES OF AMERICA. Replies due by 8/31/2011. (TREPEL, SAMANTHA) (Entered: 08/17/2011)
32 MOTION to Strike Defendant Johnson's Jury Demand by UNITED STATES OF AMERICA. Responses due by 9/8/2011 (TREPEL, SAMANTHA) (Entered: 08/18/2011)
33 MEMORANDUM filed by Plaintiff UNITED STATES OF AMERICA re 32 MOTION to Strike Defendant Johnson's Jury Demand filed by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order)(TREPEL, SAMANTHA) (Entered: 08/18/2011)
34 RESPONSE in Opposition re 32 MOTION to Strike Defendant Johnson's Jury Demand filed by TERRY S. JOHNSON. Replies due by 9/7/2011. (Attachments: # 1 Exhibit Minnesota Lawyers Mutual v Batzli)(KITCHEN, S.) (Entered: 08/24/2011)
35 REPLY, filed by Defendant ALAMANCE COUNTY, NORTH CAROLINA, to Response to 22 MOTION to Dismiss Amended Complaint filed by ALAMANCE COUNTY, NORTH CAROLINA. (PIERCE, BENJAMIN) (Entered: 08/31/2011)
36 REPLY, filed by Plaintiff UNITED STATES OF AMERICA, to Response to 32 MOTION to Strike Defendant Johnson's Jury Demand filed by UNITED STATES OF AMERICA. (TREPEL, SAMANTHA) (Entered: 09/06/2011)
37 RESPONSE in Opposition re 18 MOTION for Summary Judgment filed by TERRY S. JOHNSON. Replies due by 10/14/2011. (Attachments: # 1 Exhibit Law Review Article)(KITCHEN, S.) (Entered: 09/27/2011)
38 AFFIDAVIT in Opposition re 18 MOTION for Summary Judgment filed by TERRY S. JOHNSON. Replies due by 10/14/2011. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(KITCHEN, S.) (Entered: 09/27/2011)
39 ANSWER to 17 Amended Complaint with Jury Demand by ALAMANCE COUNTY, NORTH CAROLINA. (PIERCE, BENJAMIN) (Entered: 09/30/2011)
40 RESPONSE in Opposition re 18 MOTION for Summary Judgment filed by ALAMANCE COUNTY, NORTH CAROLINA. Replies due by 10/17/2011. (PIERCE, BENJAMIN) (Entered: 09/30/2011)
41 REPLY, filed by Plaintiff UNITED STATES OF AMERICA, to Response to 18 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9)(TREPEL, SAMANTHA) (Entered: 10/13/2011)
42 MOTION to Strike Defendant Alamance County's Jury Demand by UNITED STATES OF AMERICA. Responses due by 11/7/2011 (Attachments: # 1 Text of Proposed Order)(TREPEL, SAMANTHA) (Entered: 10/13/2011)

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10/13/2011 10/18/2011 10/27/2011 11/02/2011 11/03/2011 11/08/2011 11/18/2011 11/21/2011
01/23/2012 02/13/2012 02/15/2012
02/23/2012 06/13/2012 07/24/2012 09/17/2012

43 MEMORANDUM filed by Plaintiff UNITED STATES OF AMERICA re 42 MOTION to Strike Defendant Alamance County's Jury Demand filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Minnesota Lawyers Mut. Ins. Co. v. Batzli)(TREPEL, SAMANTHA) (Entered: 10/13/2011)
44 MOTION to Amend/Correct 41 Reply to Response to Motion, by UNITED STATES OF AMERICA. Responses due by 11/14/2011 (Attachments: # 1 Exhibit 1−Amended Reply)(TREPEL, SAMANTHA) (Entered: 10/18/2011)
45 RESPONSE re 44 MOTION to Amend/Correct 41 Reply to Response to Motion, filed by TERRY S. JOHNSON. Replies due by 11/14/2011. (KITCHEN, S.) (Entered: 10/27/2011)
MAG/JUDGE L. PATRICK AULD added. MAG/JUDGE WALLACE W. DIXON no longer assigned to case. (Powell, Gloria) (Entered: 11/02/2011)
46 RESPONSE in Opposition re 42 MOTION to Strike Defendant Alamance County's Jury Demand filed by ALAMANCE COUNTY, NORTH CAROLINA. Replies due by 11/21/2011. (PIERCE, BENJAMIN) (Entered: 11/03/2011)
47 Notice to Parties RE: SO30. Responses due by 12/8/2011 (Winchester, Robin) (Entered: 11/08/2011)
48 REPLY, filed by Plaintiff UNITED STATES OF AMERICA, to Response to 42 MOTION to Strike Defendant Alamance County's Jury Demand filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit 1)(TREPEL, SAMANTHA) (Entered: 11/18/2011)
Motions Referred: 5 MOTION to Dismiss for Lack of Jurisdiction, 18 MOTION for Summary Judgment, 44 MOTION to Amend/Correct 41 Reply to Response to Motion, 42 MOTION to Strike Defendant Alamance County's Jury Demand, 32 MOTION to Strike Defendant Johnson's Jury Demand, 8 MOTION to Dismiss, 22 MOTION to Dismiss Amended Complaint to MAG/JUDGE L. PATRICK AULD− (Garrett, Kim) (Entered: 11/21/2011)
Case Reassigned to JUDGE THOMAS D. SCHROEDER. UNASSIGNED no longer assigned to the case. (Powell, Gloria) (Entered: 01/23/2012)
Case Reassigned to MAG/JUDGE JOI ELIZABETH PEAKE. MAG/JUDGE L. PATRICK AULD no longer assigned to the case. (Garrett, Kim) (Entered: 02/13/2012)
Motions Referred: 5 MOTION to Dismiss for Lack of Jurisdiction, 18 MOTION for Summary Judgment, 44 MOTION to Amend/Correct 41 Reply to Response to Motion,, 42 MOTION to Strike Defendant Alamance County's Jury Demand, 32 MOTION to Strike Defendant Johnson's Jury Demand, 8 MOTION to Dismiss, 22 MOTION to Dismiss Amended Complaint to MAG/JUDGE JOI ELIZABETH PEAKE− (Solomon, Dianne) (Entered: 02/15/2012)
49 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 02/23/2012. IT IS THEREFORE ORDERED that the Motion to Amend [Doc. # 44 ] is GRANTED. (Taylor, Abby) (Entered: 02/23/2012)
NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENT(S) re 50 Notice of Change of Address. Filed in Error. Change of Address for Attorneys must be mailed to Clerk's Office and not filed electronically. (Taylor, Abby) (Entered: 06/13/2012)
Motions Submitted: 18 MOTION for Summary Judgment, 42 MOTION to Strike Defendant Alamance County's Jury Demand, 32 MOTION to Strike Defendant Johnson's Jury Demand, 22 MOTION to Dismiss Amended Complaint to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 07/24/2012)
Telephone and/or Electronic Notice to/from Samantha Trepel, Esq., Clyde Albright, Esq., Benjamin Pierce, Esq. and S. C. Kitchen, Esq. held on 9/17/2012. Counsel notified Motion Hearing scheduled for 9/26/2012 09:30 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. Confirmation requested.(Solomon, Dianne) (Entered: 09/17/2012)

Case: 1:11-cv-507 document<docnum> filed <datefiled> 5 of 6

09/18/2012 09/18/2012
09/18/2012 09/18/2012

51 Consent MOTION to Dismiss Amended Complaint by UNITED STATES OF AMERICA. Responses due by 10/12/2012 (TREPEL, SAMANTHA) (Entered: 09/18/2012)
52 MEMORANDUM filed by Plaintiff UNITED STATES OF AMERICA re 51 Consent MOTION to Dismiss Amended Complaint filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit)(TREPEL, SAMANTHA) (Entered: 09/18/2012)
Motions Submitted: 51 Consent MOTION to Dismiss Amended Complaint to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 09/18/2012)
53 ORDER signed by JUDGE THOMAS D. SCHROEDER on 09/18/2012. Based on the representations to the court and for good cause shown, IT IS ORDERED that the Motion is GRANTED, and this action is DISMISSED WITH PREJUDICE. (Taylor, Abby) (Entered: 09/18/2012)

Case: 1:11-cv-507 document<docnum> filed <datefiled> 6 of 6

 
 u. S. Department of Justice
Civil Rights Division

Assistant Attorney General

Washington, D.C. 20530
September 18,2012

VIA EMAIL AND FEDERAL EXPRESS
Clyde B. Albright County Attorney Legal Department, Alamance County 124 West Elm Street Graham, North Carolina 27253
Chuck Kitchen Turrentine Law Firm 920-B Paverstone Dr Raleigh, North Carolina 27615
Re: United States' Investigation of the Alamance County Sheriff's Omce
Dear Mr. Albright and Mr. Kitchen:
The Civil Rights Division ("Division") has concluded its investigation into allegations of civil rights violations by the Alamance County Sheriff's Omce ("ACSO"). We find that ACSO has engaged in a pattern or practice of violations of the United States Constitution and federal law. Our investigation focused on ACSO's compliance with the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 ("Section 14141"), Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d ("Title VI"), and the regulations implementing Title VI, 28 C.F.R. §§ 42.101-42.112. Section 14141 prohibits law enforcement agencies, such as ACSO, from engaging in a pattern or practice of violating the Constitution or laws of the United States. Title VI and its implementing reguIpations prohibit recipients offederal financial assistance, such as ACSO, from discriminating on the basis of race, color, or national origin.
In June 2010, we notified Alanlance County and Sheriff TelTY S. Johnson of our investigation into allegations of discriminatory policing mld unconstitutional searches and seizures. While law enforcement agencies typically cooperate with our investigations, ACSO and Almnance County have persistently delayed providing impOliant information and otherwise obstructed the Division's investigation. ACSO mld the County failed to provide requested records mld documentary evidence for months and refused to permit attorneys for the United States to interview CUlTent mld former ACSO perso1111el outside the presence of counsel. The Division sought private interviews because numerous current and former officers expressed fear

-2-
that Sheriff Johnson or other County 01' ACSO officials would retaliate against them if they cooperated with the investigation. After repeated attempts to resolve this dispute short of litigation, the Division filed a declaratory judgment action in June 2011 to secure a court order that such interviews were consistent with the North Carolina Rules of Professional Conduct. l
Despite the lack of cooperation from ACSO and Alamance County, the Division has now gathered sufficient information about ACSO's practices to make these findings. During the investigation, aided by leading experts on police practices and statistical analysis, we reviewed ACSO policies, procedures, training materials, data on traffic stops, arrests, citations, and vehicle checkpoints, and other documentary evidence. We also interviewed over 125 individuals, including County residents and current and former ACSO employees.z
We find reasonable cause to believe that ACSO engages in a pattern or practice of unconstitutional policing. Specifically, we find that ACSO - through the actions of its deputies, supervisors, and command staff - unlawfully targets, stops, detains, and arrests Latinos. These actions violate the Fourth and Fourteenth Amendments, Section 14141, Title VI, and the Department of Justice's ("DOJ") regulations implementing Title VI.
Effective resolution of this matter will require the development of a comprehensive written agreement involving sustainable remedies and federal judicial oversight. We believe that it is in the mutual interest of the United States, ACSO, and the people of Alamance County to resolve this matter without litigation. If you wish to discuss a negotiated settlement, we are prepared to begin discussions immediately. Please advise us by September 30 if ACSO is interested in entering into negotiations.
Constitutional policing and effective law enforcement go hand-in-hand. The pattern or practice of discrimination that we find erodes public confidence, creates distrust between police and segments of the community, and inhibits the reporting of crime and cooperation in criminal investigations. Biased policing makes the job of police officers harder, not easier. The United States urges ACSO to work together with us to develop durable and comprehensive remedies that improve public safety, the safety of officers, and make the job of law enforcement more effective. If you are lU1willing to do so, we will not hesitate to take appropriate action.
SUMMARY OF FINDINGS
Based on our careful review of the evidence, we have concluded that ACSO engages in a pattern or practice of discriminatory policing against Latinos. The discriminatory conduct we observed is deeply rooted in a culture that begins with Sheriff Johnson and permeates the entire agency.
I Because wc have been able to gather sufficient evidence to make these findings without additional interviews of ACSO personnel, we are eontempomneously withdrawing this lawsuit.
2 Federal1aw prohibits ACSO frol11 intimidaling, threatening, coercing. OJ' engaging in other retaliatory or
discriminatory conduct, OJ' attempting to do the same, against anyone because he or she has cooperated with QUI' investigation 01' has taken any action or participfltcd in any action to secure rights protected by the civil rights laws, See 18U.S.C. § 1512.

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Our factual findings of discriminatory policing include the following:
• A recent statistical study commissioned by DO] found that ACSO deputies are between four to ten times more likely to stop Latino drivers than non-Latino drivers.
• Individual accounts of vehicle checkpoints and conduct during traffic stops corroborate ACSO's discriminatory enforcement activities, including locating checkpoints in predominantly Latino neighborhoods and treating stopped drivers differently based on their ethnicity.
• ACSO's booking practices, including practices related to immigration status checks, discriminate against Latinos. Individual accounts confirm that ACSO improperly detains Latinos for immigration enforcement purposes after they have posted bond.
• ACSO's discriminatory activities are intentional and motivated by the Sheriffs prejudices against Latinos. The Sheriff and others in ACSO's leadership have explicitly instructed deputies to target Latinos for checkpoints and arrests, and have made statements that reveal a discriminatory bias against Latinos.
• ACSO's departures fi'om state law and policing standards in reporting and monitoring its activities mask ACSO's discriminatory conduct and inhibit proper monitoring of traffic enforcement activity ruld racial profiling.
Our factual findings support the following legal determinations:
• ACSO discriminates against Latinos by engaging in a pattern or practice of conduct that violates the Equal Protection Clause of the Fourteenth Amendment, Section 14141, Title VI, and the Department's Title VI implementing regulations.
• ACSO engages in a pattern or practice of unlawful seizures, including unjustified stops of Latinos in violation orthe FOllrth Amendment and Section 14141.
BACKGROUND
Alamance County, North Carolina, is located in the central Piedmont region of the state. The County has approximately 151,000 residents, of whom 71.1 % are white, 18.8% are African American, and 11.0% are Latino or Hispanic.) Alrunance County's Latino population has grown rapidly over the last two decades, from a population of only 736 individuals in 1990 to 16,624 individuals by the 2010 Census.4 ACSO is the largest of eight local law enforcement agencies
J U.S. Census Bureau, Alamance County, 20 I a Demographic Data,
http://factfinder2.censtls.gov/faces/tableservices/jsf/pages/prodtlctview.xhtml?src~bkmk(lastvisitedSept.11 , 2012). ·'/d.

-4-
operating within the County, As of2010, there were 123 fuJI-time sworn officers at ACSO,5 fewer than a dozen of whom identifIed as members of a minority ~roup, Another 147 employees were fuJI-time civilian employees, including correctional officers,
FACTUAL FINDINGS
We find that ACSO deputies, supervisors, and command staff, including Sheriff Johnson, engage in a pattern or practice of discriminatory policing against Latinos, Sheriff Johnson both directs this discrimination and fosters it by promoting a culture of bias within ACSO, This pattern is manifest in a range of conduct that is described more fuJly below,
A. Discriminatory Practices
Since at least 2007, ACSO has targeted Latinos in Alamance County for heightened enforcement activity, This activity includes disproportionately targeting Latinos for traffic enforcement, positioning vehicle checkpoints in Latino neighborhoods, and detaining Latinos in jail after there is no basis to do so. ACSO policies and practices deny Latinos equal protection of the law, erode public confidence in law enforcement, and diminish ACSO's capacity to protect public safety for aJl County residents,
First, ACSO targets Latinosfor traffic stops, A statistical analysis of ACSO traffic stops demonstrates that ACSO's traffic enforcement practices have a significantly discriminatory impact on Latino drivers. Indeed, statistical analysis comparing ACSO's traffic stop data to all violators on several County roadways found that, depending 011 the road analyzed, ACSO deputies me anywhere betwecn four to ten times more likely to stop Latino drivers than nonLatino drivers, These results show a discriminatory impact at least as great as any previously seen in the United States, In addition to this statistical evidence, the Division's interviews with deputies and community members provide additional evidence of discriminatory traffic stops, Many of these stops involved drivers cited only for driving without a license, an offense not observable from the road, In one reported incident, an ACSO deputy said he stopped a Latino man because "most of them drive without licenses,"
Second, ACSO targets Latinos with vehicle checkpoints. Sheriff Johnson selects, and encourages his officers to select, predominantly Latino neighborhoods to set up vehicle checkpoints, These checkpoint locations are often positioned to target only the residents of these predominantly Latino communities, as they are stationed at 01' near the only entrances and exits of these neighborhoods, Although we learned that deputies often establish checkpoints without receiving the required prior approval fr0111 a supervisor and without creating any record of the checkpoint, both documented checkpoints and interviews confirm that ACSO checkpoints cluster at or near the entrances of predominately Latino neighborhoods,
5 FBI, Crime inlhe United States 2010, North Carolina: Full-time Law Enforcemcnt Employees, Table 80, http://www.fbLgov/about-us/cjis/ucr/crime-in-the-u.s/20 I0/crime-in-the-u,s,-20 I0/tables/table-80/1 Orbl80nc,x Is (last visited Feb, 23, 20 12), 61d,

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Third, and again at the direction ofSheriff Johnson, A CSO checkpoint practices discriminate against Latinos. Deputies single out Latino drivers for arrest at checkpoints, even for minor traffic violations. Similarly situated non-Latino drivers are often waved through the checkpoints without providing identification. We also find that when ACSO deputies stop drivers for minor traffic offenses, whether at a checkpoint or when conducting routine traffic stops, the way ACSO treats drivers depends on the driver's ethnicity. Specifically, we find that when stopped for minor traffic offenses, ACSO deputies arrest rather than merely cite Latino drivers, but not drivers of other ethnicities. Indeed, Sheriff Johnson has directed his supervisory officers to tell their subordinates, "If you stop a Mexican, don't write a citation, arrest him." Non-Latino drivers, when stopped, are issued citations but not arrested for the same types of minor traffic violations. In one instance, a Latino man and a white woman were stopped by the same deputy, on the same day, for the same offense, and the deputy arrested the Latino man but only gave the white woman a written citation.
Fourth, ACSO discriminates against Latinos in its jail booking and detention procedures. Our investigation revealed that correctional officers verify the immigration status of all detainees who "appeal'" Latino, regardless of their response to citizenship questions. Officers decide which detainees to interview based on assumptions about nationality and ethnicity. Those who appear "American" are not interviewed, even if they cannot produce identification. Further, law enforcement detains Latinos for immigration status checks even after bond has been posted. Our interviews confirmed that in at least some cases, Latino individuals who had posted bond were informed they would not be released because ofa U.S. Immigration and Customs Enforcement ("ICE") detainer, even though ICE had not yet been contacted and no detainer had been issued.
Fifth, the Sheriff directs his deputies to target predominantly Latino neighborhoodsfor increased enforcement based on the Sheriff's oflen-stated beliefthat Latinos are responsible for Alamance County's drug trade. For example, at a staff meeting Sheriff JolUlson stated, "We've had a big drop in the Hispanic population, but we still got a lot dealing dope and we still got a lot of citizens in this country dealing dope with them." Accordingly, he directed his Vice/Special Operations Unit to target three or four predominately Latino mobile home parks and neighborhoods. As he described these heightened enforcement efforts in predominantly Latino areas, Sheriff Johnson stated, "Hell will come to these places and the devil gonna come with him. And you folks [the Special Ops Unit] gonna be the devil."
Sixth, A CSO 's discriminatory practices undermine its ability to serpe and protect Alamance County's Latino residents and the community at large. Effective policing is largely built on a relationship of trust with all segments of the community. ACSO has done almost nothing to build such a relationship with the County's Latino residents, and much to destroy it. OUl' interviews with ACSO officers and community members reveal that the absence of this trust has substantially compromised policing by limiting the willingness of witnesses and victims to report crimes and speak to ACSO deputies about criminal activity or complaints of misconduct by ACSO officers. Our investigation finds that Latinos are afraid to call the police to report crimes and provide information pertinent to solving crimes.

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B. Discriminatory Bias
A culture of discrimination against Latinos pervades ACSO. The Sheriff and the highest levels of command staff support and foster this culture of bias. Sheriff Johnson has made numerous statements, both in public and to his deputies and command staff, exhibiting his bias against Latinos.
The Sheriffs statements frequently assume that Latinos in Alamance County are undocumented immigrants and are involved in criminal activity. For example, in one widely publicized statement, in the course of discussing undocumented immigrants, Sheriff Johnson suggested that anyone of Mexican national origin was inherently suspicious, saying: "Their values are a lot different - their morals - than what we have here. In Mexico, there's nothing wrong with having sex with a 12-, 13- year old girl .... They do a lot of drinking down in Mexico,") The Sheriff also uses derogatory epithets - such as the plu-ase "taco eaters" - when referring to Latinos in speaking with his staff, and his command staff tolerates the use of derogatory racial and ethnic epithets by ACSO deputies and correctional officers.
Further, the Sheriff and other ACSO command staff have explicitly directed deputies to target Latinos during enforcement actions. For instance, the Sheriff has instructed his officers to arrest all Latinos who commit the traffic infraction of driving without a license. Based on such directives, ACSO deputies understand that they should target Latinos with their discretionary enforcement actions and bring them into the Alamance County Jail to be run through immigration databases,8 rather than simply issuing them citations.
C. Departures from Policing Standards and Procedures
ACSO has departed from state law and policing standards in ways that have adversely affected Latinos <md contribute to violations of constitutional and federal rights. First, ACSO does not comply with state law, standard policing practices, and its own policies concerning the documentation of vehicle checkpoints and traffic stops. Deputies often disregard ACSO's policy requiring them to file an action plan and obtain supervisory approval prior to setting up a vehicle checkpoint and to complete a report following each checkpoint. In addition, ACSO has "grossly underreported" the number of traffic stops its deputies made,9 even though the collection of trafflc stop data is required by North Carolina law. lo Because it lacks vehicle checkpoint and traffic stop data, ACSO eaJmot properly monitor its deputies' traffic enforcement activity or
7 Kristin Collins, Sheriffs Help f-ed, Deport !!legal Aliens, The News and Observer, Apr. 22, 2007, at A I, http://www.newsobserver.com/2007/04/22/59984/sheriffs-help-feds-deport-illegal.html. " In 2007, ACSO entered into a Memorandum of Agreement ("MOA") with U.S. Immigration and Customs Enforcement pmsuanl to 8 U.S.C. § I357(g). This MOA permits designated and trained ACSO officers to investigate individlJals detained at the Alamance County Jail for immigration violations. The MOA prohibits ACSO from conducting immigration checks on individuals outside ofthejail setting. 9 Robert Boycr, Hispanics Stopped by Sheri!!'s Department "Grossly Underreported. "The Burlington Times-News, Apr. 7, 2009. 10 N.C. Stat. Ann. § 114-10.01 (effective Jan. 1,2002, amended effective Jan. 1,2010).

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reasonably determine whether or not deputies or units engage in racial profiling. Additionally, the number of Latinos booked into jail for minor offenses is masked because under ACSO policy minor traffic offenses are logged into a book and detainees are listed only as either "b[lackJ" or "w[hite]. "
Second, ACSO's Special Operations Unit ll does not adhere to record keeping requirements or other standard policing practices. The Unit performs traffic enforcement and other special operations prioritized by the Sheriff. These officers, hand-picked by and loyal to the Sheriff, perform most of the County's traffic stops and target predominantly Latino neighborhoods with road blocks, vehicle stops, raids, and increased patrols at the direction of Sheriff Johnson, but with little oversight. These deputies often do not fill out required documentation of enforcement actions, limiting oversight of their activities. Additionally, members of the Unit arc inconsistently disciplined for misconduct.
LEGAL DISCUSSION
Section 14141 grants the United States authority to sue a state or local govel'l1ment for equitable and declaratory relief when a "gove1'l1mental authority ... engage[s] in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." 42 U.S.c. § 14141. Both the Constitution and federal law prohibit intentional discrimination on the basis of race, color, or national origin. Titl e VI provides that" [n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assist,mce." 42 U.S.c. § 2000d. In addition, the Title VI implementing regulations ban recipients of federal funds from engaging in activities that have a discriminatory effect on the basis of race, color, or national origin.
While ACSO should establish its own enforcement priorities, ACSO's actions must comply with the Constitution and laws of the United States. We find that, by intentionally targeting Latinos, ignoring basic law enforcement protocols, and failing to implement meaningful safeguards against discriminatory police practices, ACSO engages in intentional discrimination in violation of the Fourteenth Amendment, Fourth Amendment, and federal law. We further find that ACSO's enforcement activities have a discriminatory effect on Latinos in
or Alamance County in violation DO.l's regulations implementing Title VI.
A. Discriminatory Policing
Our investigation provides reasonable cause to believe tbat ACSO's discriminatory traffic enforcement and vehicle checkpoint activities violate the Equal Protection Clause of the Fourteenth Amendment, Title Vl, and Title VI's implementing regulations.
The Equal Protection Clause prohibits certain law enforcement practices that discriminate based on race, ethnicity, or national origin. Whren v. United States,S 17 U.S. 806, 813 (1996). !\ law enforcement agency likc ACSO violates the Equal Protection Clause when its decision
II This unit has gone by different names, including \\Yice" and \\Strcet Crimes," throughout its existence,

-8-
maker adopts a facially neutral policy or practice with a discriminatory intent and that policy or practice has a discriminatory effect. United States v. Armstrong, 517 U.S. 456, 465 (1996); Washington v. Davis, 426 U.S. 229, 239-40 (1976); Monroe v. City a/Charlottesville, 579 F.3d 380,388 (4th Cir. 2009). Likewise, law enforcement officers violate the Equal Protection Clause when they administer 01' enforce a facially neutral policy in a manner that disproportionately affects a protected group and they act with discriminatory intent. Monroe, 579 F.3d at 388.
A law enforcement activity may run afoul of the Equal Protection Clause even where discriminatory intent is not the decision maker's sole motive. Smith v. Town a/Clarkton, 682 F.2dl055, 1066 (4th Cir. 1982); Orgain v. City a/Salisbury, 305 F. App'x 90, 98 (4th Cir. 2008) ("Notably, the Equal Protection Clause does not require Plaintiffs to prove that the challenged action rested solely on racially discriminatory purposes."). Rathel', an equal protection violation occurs when evidence shows that "racial animus was one of several factors that, taken together," motivated the discriminatory acts. Orgain, 305 F. App'x at 98; see also Personnel Adm 'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). To assess whether intentional discrimination animates a law enforcement activity, courts examine the totality of the circumstances with particular attention to factors the Supreme Court has identified as most probative of discriminatory intent. See Viii. ofArlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). Those factors include: evidence of discriminatory effect; evidence of departures from normal procedures; the specific sequence of events that led to the discriminatory practices at issue; and contemporaneous statements from a decision maker that reveal a discriminatory intent. Jd. at 266-68; Sylvia Dev. Corp. v. Calverl Cnty., 48 F.3d810, 819 (4th Cir. 1995).
Our investigation revealed substantial evidence that Sheriff Johnson intentionally implemented law enforcement practices that discriminate against Latinos. While Sheriff Johnson often justifies ACSO's activities by citing his desire to combat illegal immigration, we conclude that anti-Latino bias motivates his selection and implementation of ACSO's enforcement priorities. Sheriff Johnson has made racially insensitive comments, tolerated racially derogatory remarks ii'om ACSO command staff, and ordered various discriminatory enforcement activities. Indeed, Sheriff Johnson has ordered numerous vehicle checkpoints and other law enforcement activities in predominantly Latino neighborhoods, instructed ACSO officers to stop Latino drivers on roadways, and insisted that officers arrest and detain Latino drivers for minor offenses.
In addition to uncovering evidence of discriminatory intent, our investigation demonstrates that several ACSO practices result in a discriminatory impact on Latinos. Statistical evidence shows that ACSO deputies stop Latino drivers at higher rates than similarly situated non-Latinos on Alamance County roadways. This evidence not only demonstrates a disparate impact on Latino drivers, but also bears directly on the discriminatory motives of those implementing ACSO's traffic enforcement activities. It is difficult to conceive of any valid, nondiscriminatory explanation for enforccment practices that are roughly foUl' to ten times more likely to stop Latino drivers than non-Latino drivers. This statistical cvidence is consistent with what witnesses have told us about ACSO deputies - in particular ACSO Special Operations frequently seizing and detaining Latino drivers without cause.

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Moreover, analysis of the traffic checkpoints ACSO conducted and documented from 2007-2011 demonstrates that ACSO disproportionately locates checkpoints in or near predominately Latino communities. Interviews with County residents confirm that these discriminatory checkpoints continue today. Not only does ACSO frequently locate checkpoints in Latino areas, the results of our investigation indicate that ACSO officers execute checkpoints in a discriminatory manner. For these and other reasons, the evidence establishes that ACSO is engaged in a pattern or practice of equal protection violations.
Our investigation also provides reasonable cause to believe that ACSO's discriminatory jail practices violate the Equal Protection Clause. ACSO's jail procedures unlawfully target Latinos for immigration status checks during booking and detention.
Discriminatory law enforcement activities are also prohibited by Title VI. Title VI establishes that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance." 42 U.S.C. § 2000d. In addition, the regulations implementing Title VI proscribe "criteria or methods of administration" that exert a discriminatory effect on the basis of race, color, or national origin. 28 C.F.R. § 42.104(b)(2). ASCO and Alamance County receive federal funding and have violated Title VI and its implementing regulations for the reasons detailed above.
B. Unreasonable Seizures
ACSO deprives Latino residents of their Fourth Amendment right to be free of "unreasonable searches and seizures." U.S. Const. Amend. IV. Even the temporary detention of an individual by police during a traffic stop for a limited purpose constitutes a seizure for Fourth Amendment purposes. Whren, 517 U.S. at 809-10; United States v. Branch, 537 F.3d 328, 334 (4th Cir. 2008). A traffic stop must thus be "reasonable" under the circumstances. Whren, 517 U.S. at 810. Roving checkpoints for license and registration checks are not permissible. Delaware v. Prouse, 440 U.S. 648, 657, 661 (1979). Stopping a vehicle at a police checkpoint likewise constitutes a seizure within the meaning of the Fourth Amendment. Michigan Dep 'I of State Police v. Sitz, 496 U.S. 444,450 (1990). While the Fourth Amendment allows vehicle checkpoints in celiain narrow circumstances, see Silz, 496 U.S. at 454 (upholding sobriety checkpoint), police may not utilize checkpoints to pursue general law enforcement goals, such as immigration sweeps or drug interdiction. Nor can officers inoculate an impermissible vehicle checkpoint by articulating a pretextualjustification. See, e.g., Uniled Slales v. Huguenin, 154 F.3cl 547,555 (6th Cir. 1998) (prelextual checkpoints must be judged by true programmatic purpose); Uniled Slates v. Morales-Zamora, 974 F.2d 149, 153 (10th Cir. 1992) (reversing denial of suppression motion and holding that a driver's license checkpoint was in fact a pretext for drug searches).
Our investigation furnishes reasonable cause to believe that ACSO's practice oflargeting Latino drivers via traffic enforcement and vehicle checkpoints violates the Fourth Amendment. These racially motivated stops are unreasonable under the Fourth Amendment. As described above, ACSO locates checkpoints in heavily Latino areas to facilitate impermissible programmatic objectives, including de facto immigration sweeps and drug interdiction. ACSO ofllcers likewise engage in a practice of stopping Latino drivers on Alamance County roadways

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regardless of whether reasonable suspicion exists for the stops - a practice that contravenes the "reasonableness" the Fourth Amendment prescribes. Further, ACSO unjustifiably detains Latinos after they have posted bail.
REMEDIAL MEASURES
The factualiindings detailed above provide reasonable cause to believe that ACSO violates the Fourth and Fourteenth Amendments to the United States Constitution, Section 14141, Title VI, and Title VI's implementing regulations. The Civil Rights Division accordingly notifies you that, absent ACSO reaching an agreement with the Division to correct these violations, the United States will initiate litigation to compel compliance with the Constitution and federal law.
The constitutional violations and institutional deiiciencies outlined above are the product of an ingrained culture that encourages and tolerates the discriminatory treatment of Latinos and an agency that has demonstrated its flagrant disregard for constitutional protections. Reform will require sustained commitment to long-term structural, cultural, and institutional change, including the following:
• Elimination of Overt Discrimination: ACSO must develop and implement policies prohibiting discriminatory enforcement activities and the use of derogatory language aimed at racial and ethnic groups by ACSO officers while on duty.
• Training for ACSO Deputies, Supervisors, and Command Staff: ACSO must develop and implement effective and meaningful training for its officers and relevant non-sworn staff in constitutional policing, including how to perform stops, searches, seizures, and arrests consistent with the requirements of the Fourth and Fourteenth Amendments. Training must also include instruction regarding language access obligations and procedures.
• Special Operations Unit: ACSO must develop and implement detailed policies, procedures, training, and oversight regarding the operations and activities of the Special Operations Unit.
• Data Collection, Analysis, and Risk Management: ACSO must develop, implement, and enforce a comprehensive and accurate data collection system documenting all ACSO . enforcement activity. Such a program requires consistently completed, detailed auditable reports for vehicle checkpoints; traffic and pedestrian stops; searches and seizures; raids; and patrol activities. This program also requires regular analysis and audits of the data to enable ACSO to supervise, manage, and intervene when appropriate.
• Complaint System and Tntemal A[Tail'S: ACSO must develop and implement a comprehensive complaint, investigation, and disciplinary system (0 enable it to hold of/kers accountable when they violate policy or the law. The complaint systemmus( be well-publicized and accessible to all community members. It must permit members of

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the public, including ACSO officers, to make complaints against ACSO staff and deputies without fear of retaliation. The internal investigative process must include clear avenues for adjudication, discipline, and criminal prosecution, if necessary.
• Community Outreach: ACSO must meet the law enforcement needs of all its residents, regardless of their race or ethnicity. To that end, ACSO must engage with and reach out to ACSO's Latino residents to ensure that it is fairly and effectively providing them with law enforcement services.
THE ROAD AlIEAD
We strongly believe that effective policing and constitutional policing are inseparable. We prefer to work collaboratively with law enforcement agencies, as we have in recent yearsincreasingly at their request - to address serious concerns that threaten to undermine public confidence and hinder effective policing. We prefer negotiation rather than litigation. Our goal throughout every investigation is to work cooperatively to develop and implement sustainable reform measmes that will reduce crime, ensure respect for the Constitution, and increase public confidence in law enforcement.
We stand ready to roll up our sleeves and work with you to address the concerns outlined in this letter. We remain prepared to take prompt, appropriate legal action if you choose to forego collaboration. We look forward to hearing from you by September 30th as to whether you wish to seek a negotiated resolution of this matter. Please note that this letter is a public document ane! will be posted on the Civil Rights Division's website. If you have any questions, please contact Jonathan Smith, Chief of the Special Litigation Section, at (202) 514-6255.
Sincerely,
Thomas E. Perez Assistant Attorney General

 
 TURREN£8lINE
LAW FIRM, PLLC
September 26,2012
Thomas E. Perez Assistant Attorney General U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530-0009
Re: DOJ Investigation of the Alamance County Sheriffs Office
Dear Mr. Perez:
I have received your letter dated September 18, 2012 relating to the Civil Rights Division's ("DOJ") investigation of the Alamance County Sheriffs Office. On behalf of my client, Terry Johnson, Sheriff of Alamance County, I am replying to the allegations in the letter.
It should be pointed out that the letter is full of factual inaccuracies and devoid of specifics. It is instead an indictment of the Sheriff based on newspaper articles, rumors, and gossip. As will be indicated below, due to these factual inaccuracies, the conclusion that the Sheriff or his deputies violated any laws of the United States is fatally flawed.
Initially, you accuse the Sheriff of not cooperating with your investigation of discrimination and unconstitutional searches and seizures. You state that the Sheriff s Office did not provide important information and failed to provide requested records and documentary evidence. You further state that the Sheriff refused to permit attorneys for DOJ to interview current and fmmer Sheriff s office personnel outside the presence of counsel. This is simply a misstatement of what occurred and a misstatement of the position of the Sheriff.
The Sheriff s Office provided tens of thousands of documents requested by your attorneys, including entire hard drives from computers. Even after submitting these thousands and thousands of records, it would be months before your attorneys would even try to access the
TURRENTINE LAW FIRM, PLLC Karlene S. Turrentine, Warren County Attorney
S. C. Kitchen, Of Counsel 920·B Paverstone Drive; Raleigh, NC 27615; PH (919) 926·8133 / (888) 308·3708; FAX (888) 308·3614
ckitchen@turrentinelaw.com WWW.TURRENTINELAW.COM

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information. Apparently, from the accusations in your letter, the information in the documents was never properly analyzed.
Likewise, your statements regarding the Sheriff's position as to interviewing personnel is faulty. The Sheriff's position, as stated in his Answer and Briefs in the suit filed by your Department, was and continues to be that the only objection the Sheriff had was with your attorneys interrogating current deputies without benefit of counsel. After suit was filed by your Department, the Sheriff proposed that DO] attorneys be allowed to interrogate deputies with private counsel for the deputies being present, but outside the presence of the County Attorney. Your attorneys refused; insisting that they had the right to question the deputies without their counsel being present. Your attorneys have now dismissed the Federal lawsuit with prejudice. This action was very puzzling as the DO] attorneys had previously indicated that they had to interview the deputies in order to do a proper investigation, and felt so strongly that they filed a Federal suit. However, it now appears that the investigation by your attorneys has been concluded without the necessity of interviewing deputies.
Your letter does state that current and former Sheriff's Office employees were interviewed as part of your investigation. As it has now been judicially determined by your taking a dismissal with prejudice that interviewing current deputies without benefit of counsel is a violation of Rule 4.2 of the North Carolina Rules of Professional Conduct, and the rules of the United States District Court for the Middle District ofNOlih Carolina, I would request that you furnish any information that you possess that one or more of your attorneys interviewed current deputies without benefit of counsel so that an ethics complaint can be filed against them.
While my client agrees that constitutional policing and effective law enforcement go hand-in-hand, as will be shown below, the Alamance County Sheriff's Office does not discriminate against any persons, including Spanish speaking individuals. As such, my client does not believe that any "negotiated settlement" is necessary or advisable.
As indicated above, I will now address each of your so-called "factual findings". In order to correlate the responses to the allegations, I will use your headings for the various allegations.
A. Discriminatory Practices
It should first be noted that your allegations go back to at least 2007. This is beyond any statute oflimitations for the Federal statutes which you state are the basis of your investigation. That being said, there has been no targeting of people of Spanish speaking individuals for traffic enforcement, vehicle checkpoints, or detaining persons in the Alamance County Jail.
First, traffic stops. You indicate that you have done a statistical analysis that indicates on certain roads that "Latino drivers" are four to ten times more likely to be stopped than "nonLatino drivers". Since your attorneys have refused to provide a copy of this allege analysis, ifit indeed exists, it is impossible to test its conclusions. However, it appears that the alleged

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analysis applies to only certain roads in Alamance County. Apparently, the roads were not chosen at random, but chosen based on Spanish speaking persons living on or near the roads. This is the only conclusion which makes any sense when the traffic stop numbers are actually used. During the year 2011, the last full year for which we have statistics, Alamance County Sheriff's deputies made 3,696 traffic stops. Of these, 466 (12.6%) of the stops were of persons of Spanish speaking persons. Of these 466 stops, 23 7 people were given citations, 226 were given verbal warnings, and 64 were arrested. Of all the traffic stops by the Alamance County Sheriff's Office in 2011, only 1.7% resulted in arrests of persons of Spanish speaking persons. As stated in your letter, 11 % of the population of Alamance County is composed of Spanish speaking persons according to the 2010 census. It is widely accepted that the 2010 census undercounted Spanish speaking persons who were in the country illegally as they were afraid to answer the census questionnaire. As such, it would appear that based on the actual number of traffic stops, the number of stops of Spanish speaking persons were proportional to the actual population of Spanish speaking persons in the County.
It should be noted that your paragraph ends with an allegation that an unnamed deputy stated that he stopped a "Latino" driver because "most of them drive without licenses." This typifies your report. An unnamed deputy, at an unnamed time, allegedly made a racial statement. If there is any truth to this allegation, why isn't the deputy named and the time and place of the wrongdoing stated? Without this information, it appears that you are simply taking a cheap shot at the Alamance County Sheriff's Office without any factual basis for your statement.
Second, vehicle checkpoints. You state in your letter that Sheriff Johnson targets "Latino neighborhoods to set up vehicle checkpoints". You make this bald allegation without any factual backup, and it is completely and utterly false. Virtually all the checkpoints set up in Alamance County involving sheriff's deputies are done in conjunction with the North Carolina Highway Patrol and other law enforcement agencies. The checkpoints have been set up in virtually all areas of Alamance County. These checkpoints have also been set up in large part as a part of the Governor's Highway Safety Program, the Click it or Ticket campaign, and the Booze it and Lose it program.
Third, checkpoint practices. Here again you make allegations of misconduct which are at odds with the facts. If the Alamance County Sheriff's Office were indeed making arrests instead of giving tickets to Spanish speaking persons, why would the deputies give out 237 citations and 226 verbal warnings to Spanish speaking people with only 64 arrests as was done in 2011? If indeed there were any truth to your allegations, the numbers should be reversed with an overwhelming number of Spanish speaking people being arrested and very few being cited. Your only evidence presented is an alleged unattributed statement made by Sheriff Johnson to his subordinates to arrest "a Mexican" and not give him a citation. This is not the policy of Sheriff Johnson and is completely false. You then cite an alleged incident, in which you fail to state the parties involved or when it allegedly occurred, where a "Latino" man was arrested and a white woman was giving a written citation. Without any specifics, I cannot verify if this happened or why it may have happened. However, it should be noted that deputies will make a full custody

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arrest if the person has committed an arrestable offense and has no valid identification. This is done in order to verify the identity of the person, and to make a determination as to whether or not there are outstanding warrants on the individual. This practice does not depend on race or ethnicity, but applies to all persons who commit arrestable offenses.
Fourth, jail booking procedures. All booking procedures as they relate to immigration status has been reviewed by Immigration and Customs Enforcement ("ICE") as part of its contract with Alamance County, and ICE has provided detailed guidance as to the procedures to be followed in processing detainees. ICE sends a four person team to inspect the jail programs over a two day period. These inspections happen several times a year. As shown by the article in the Burlington Times News entitled "Feds: Sheriff's 287(g) operation is 'model program'" dated January 5, 2012, not only has ICE found that the Alamance County Jail does not violate the rights of detainees, the inspectors stated that the program in the Alamance County Jail was a "model program" in the country. The statements made in your letter indicate that your attorneys do not have an understanding of the 287(g) program. It would have been preferable for your attorneys to contact ICE before making unfounded accusations regarding the processing of detainees. Not only does the Alamance County Jail not violate the rights of illegal aliens, it was a model program for the country until you ordered the program shut down.
Fifth, drug trade. You seem to be stating in this allegation that the Sheriff illegally profiles "Latino mobile home parks and neighborhoods". Interestingly enough, you do not make any allegations that the raids were not successful in getting drugs off the street or in making drug related arrests. You apparently are also unaware that many if not most of these raids were done based on information from the United States Drug Enforcement Administration, or were done in concert with the United States Drug Enforcement Administration ("DEA"). We do not believe that DEA has been actively singling out "Latino mobile home parks and neighborhoods" for special action, but should you believe this to be the case, then your investigation should also be reviewing Federal agencies. However, it should be stated that the Sheriff's Office will investigate any and all allegations of drug dealing in the County regardless of the ethnicity of the drug dealers.
Sixth, ability to serve and protect. Initially, it should be pointed out that this paragraph does not allege any violation of law, but it instead represents your own political viewpoint. The extent of community outreach that the Sheriff determines should be done by his depmiment is solely in his judgment. Further, it appears that by saying that "Latinos are afraid to call the police", you are really saying that illegal aliens are afraid to call police for fear of being deported. I suspect that is largely true throughout the United States. If a person is breaking the law, he or she is less likely to call the police to come investigate another crime. However, it is important to recognize that your statement says nothing about the response when the Sheriff's Office is actually dispatched to a crime. The Sheriff's Office responds to all calls regardless of whether or not the caller is in this country legally or illegally.

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B. Discriminatory Bias
These three paragraphs are little more than an ad hominem attack on Sheriff Jolmson, and is little more than a libelous political attack on the Sheriff. This entire investigation by DOJ began as an attempt to defeat the Sheriff at the polls and to eliminate the 287(g) program at the Alamance County Jail. In November 2009, DOJ opened a preliminary inquiry into "allegations that the Alamance County Sheriff s Office was engaged in a pattern or practice of discriminatory law enforcement activities". As part of its inquiry, DOJ met and talked with members of Fairness Alamance.
Fairness Alamance is a group formed to challenge Sheriff Johnson over the 287(g) program in the Alamance County Jail. DOJ's involvement with members of Fairness Alamance dates back to at least September 2008. During February 2009, members of Fairness Alamance worked with the ACLU of North Carolina in presenting a panel discussion at Elon University. The Sheriff was invited to be on the panel. When the statistics were not as favorable to the position of Fairness Alamance and the ACLU, Katherine Lewis Parker, then Legal Director, ACLU of North Carolina wrote to members of Fairness Alamance and suggested that "Instead of worrying right now about enforcement, I think y' all should focus on embalTassment." She further suggested that the Sheriff be invited to be on the panel, the "stats" not be disclosed until the presentation at which time the numbers would be presented "with no notice".
Following the meetings with Fairness Alamance, on June 2, 2010, DOJ notified the Sheriff that it was initiating an investigation of the Alamance County Sheriff's Office, "concerning allegations of discriminatory policing and unconstitutional searches and seizures by members of the Alamance County Sheriffs Office". Following the announcement by DOJ of its investigation, Fairness Alamance actively assisted DOJ by speaking to four English as a Second Language classes at Alamance Community College, sending out an e-mail to its members seeking persons who "experienced racial profiling in Alamance County", and publicly seeking assistance for the Plaintiff's investigation. At the same time, Fairness Alamance was endorsing Sheriff Johnson's opponent in an upcoming election for sheriff.
This same attempt to embalTass the Sheriff continues in the allegations contained in this section. You have lifted quotes from a newspaper story regarding the human trafficking of children by Mexican gangs. The Sheriff was absolutely COlTect when he stated that the moral values of the citizens in North Carolina are different than that of gangs involved in human trafficking. This does not represent the views of the Sheriff as to Mexicans or any other Spanishspeaking persons other than gang members.
You then accuse the Sheriff of using racial epithets such as "taco eaters". The Sheriff categorically denies that he uses such a term. Further, neither I nor my legal assistant, who is of Mexican descent, is familiar with the term being used as a racial epithet. This appears to be a fabrication by someone who could not come up with a better allegation on short notice.

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The last paragraph in this section is addressed above, and simply repeats the misrepresentations and distortions previously stated above.
c. Policing Standards and Procedures
The statements contained in this section are simply false. The Alamance County Sheriff s Office keeps detailed records of all checkpoints. You then accuse the Sheriff of underrepOliing vehicle stops based on a newspaper article from three years ago. However, the situation from three years ago was that a computer program purchased by the County was defective. The Sheriff brought this to the attention of the Board of County Commissioners who replaced the faulty program. With the new software, the Sheriff s Office has been able to post vehicle stop information on its website to ensure transparency.
The next accusation is that when "Latinos" are booked into the jail they are listed as "black" or "white". This is correct as far as race is concerned. "Latino" does not represent race, but rather it reflects one's etlmicity. This is reflected on forms produced by the State of North Carolina such as DCI-608F, "Arrest Report".
The last accusation in this section deals with the Sheriffs Special Operations Unit. You indicate that the Unit "performs traffic enforcement" and is responsible for "most of the County's traffic stops". This is again another untrue statement. The Special Operations Unit does not normally do traffic enforcement or make traffic stops. The Unit is composed of three sub-units; Vice, Gangs, and Task Force Officers. This Unit is the primary unit in the Sheriffs Office which works jointly with Federal agencies doing law enforcement. The members of the Unit are selected based on qualifications and ability. The members of the Unit do fill out all required documents. This is especially important since Federal charges are often being brought against the individuals anested instead of State charges.
Legal Discussion. Since your factual predicate for your legal analysis can best be described as faulty, if not down right false, your legal discussion is meaningless. I therefore will not address it further.
Remedial Measures. No remedial measures are needed. The Alamance County Sheriffs Office consists of dedicated, well-trained individuals who enforce the law fairly and evenly without regard to any person's race or ethnicity.
The Road Ahead. Before dealing with the "Road Ahead", I believe it would be helpful to review how this report came about. The investigation by your Department was begun at the urging of a liberal group, Fairness Alamance, which was dedicated to eradicating Alamance County's Section 287(g) program. At the same time Fairness Alamance was working with your Department, it was endorsing the Sheriff s opponent in a then upcoming election. When the group, working with the ACLU, was unable to show discriminatory policing, it focused then on attempting to embarrass the Sheriff.

-7Working with Fairness Alamance, your Department has now produced a report that is short on facts and long on distortion and misrepresentations. Unlike all other Federal investigations with which I have been involved, there was no meeting prior to the release of the report. Normally, I expect the Federal Agency to have a set of draft findings which are reviewed with the entity under investigation. Had this been done, many of the misstatements in the report could have been corrected. Instead, this report appears to have been hurriedly prepared to be released, without review, prior to the upcoming election.
If you seriously do want to work collaboratively with law enforcement, and your statements are not purely for political purposes, then I ask you to review the underlying factual basis of your report. If you then have any concerns about the operations of the Alamance County Sheriff's Office, we will be glad to address those concerns with you. Sheriff Johnson is dedicated to serving all the people of Alamance County fairly and without discrimination, including its Spanish speaking citizens.
xc: Sheriff Johnson

 
 18BD,TRIAL
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:12−cv−01349−TDS−JLW

UNITED STATES OF AMERICA v. JOHNSON Assigned to: JUDGE THOMAS D. SCHROEDER Referred to: MAG/JUDGE JOE L. WEBSTER Case in other court: FOURTH CIRCUIT, 15−02190 Cause: 28:1331 Fed. Question: Civil Rights Violation
Plaintiff

Date Filed: 12/20/2012 Date Terminated: 08/11/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

UNITED STATES OF AMERICA

represented by MICHAEL J. SONGER U. S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., N.W. WASHINGTON, DC 20530 202−514−6255 Fax: 202−514−4883 Email: michael.songer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

SAMANTHA K. TREPEL U. S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., N.W. WASHINGTON, DC 20530 202−514−6255 Fax: 202−514−4883 Email: samantha.trepel@usdoj.gov TERMINATED: 09/08/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

AARON S. FLEISHER UNITED STATES DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., NW WASHINGTON, DC 20530 202−307−6457 Fax: 202−514−6903 Email: aaron.fleisher@usdoj.gov TERMINATED: 07/10/2014 ATTORNEY TO BE NOTICED

ANIKA GZIFA UNITED STATES DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., NW WASHINGTON, DC 20530 202−305−3216 Fax: 202−514−0212 Email: anika.gzifa@usdoj.gov ATTORNEY TO BE NOTICED

JUDE VOLEK UNITED STATES DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., NW WASHINGTON, DC 20530 202−353−1077 Fax: 202−514−4883 Email: jude.volek@usdoj.gov ATTORNEY TO BE NOTICED

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SILVIA J. DOMINGUEZ−REESE UNITED STATES DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., NW WASHINGTON, DC 20530 202−616−8547 Fax: 202−514−4883 Email: Silvia.Dominguez−Reese@usdoj.gov ATTORNEY TO BE NOTICED
TIMOTHY MYGATT UNITED STATES DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., NW WASHINGTON, DC 20530 202−305−3334 Fax: 202−514−4883 Email: timothy.mygatt@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant TERRY S. JOHNSON in his official capacity as Alamance County Sheriff
Movant BONEY PUBLISHERS, INC. TERMINATED: 06/13/2014

represented by S. C. KITCHEN Stark Law Group, PLLC 6011 Farrington Road Suite 300 Chapel Hill, NC 27517 919−490−5550 Fax: 919−490−5551 Email: chuck@starklawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
KARLENE S. TURRENTINE TURRENTINE LAW FIRM, PLLC 920−B PAVERSTONE DR. RALEIGH, NC 27615 888−308−3708 Fax: 888−308−3614 Email: kturrentine@turrentinelaw.com ATTORNEY TO BE NOTICED
represented by C AMANDA MARTIN STEVENS MARTIN VAUGHN & TADYCH, PLLC 1101 Haynes Street Suite 100 RALEIGH, NC 27604−1455 919−582−2300 Fax: 866−593−7695 Email: amartin@smvt.com TERMINATED: 06/13/2014 ATTORNEY TO BE NOTICED

Date Filed 12/20/2012

# Docket Text
1 COMPLAINT against TERRY S. JOHNSON, filed by UNITED STATES OF AMERICA. (TREPEL, SAMANTHA) (Entered: 12/20/2012)

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12/21/2012 12/21/2012 01/02/2013 01/09/2013 01/15/2013 01/15/2013 01/30/2013 01/31/2013 02/05/2013
02/20/2013 02/20/2013
02/25/2013 03/12/2013 03/13/2013
03/14/2013
03/15/2013 03/15/2013

2 Summons Issued as to TERRY S. JOHNSON. (Garland, Leah) (Entered: 12/21/2012)
3 Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Garland, Leah) (Entered: 12/21/2012)
4 NOTICE of Appearance by attorney S. C. KITCHEN on behalf of Defendant TERRY S. JOHNSON (KITCHEN, S.) (Entered: 01/02/2013)
5 Declaration of Proof of Service served on Terry S. Johnson on January 2, 2013, filed by UNITED STATES OF AMERICA. (TREPEL, SAMANTHA) (Entered: 01/09/2013)
6 ANSWER to 1 Complaint by TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 01/15/2013)
7 NOTICE of Initial Pretrial Conference Hearing: Initial Pretrial Conference Hearing set for 2/21/2013 09:30 AM in Winston−Salem Courtroom #3 before MAG/JUDGE JOI ELIZABETH PEAKE. (Garrett, Kim) (Entered: 01/15/2013)
8 Rule 26(f) Report (Joint) filed by all parties by UNITED STATES OF AMERICA.(TREPEL, SAMANTHA) (Entered: 01/30/2013)
Motions Referred: RE: 8 Rule 26(f) Report (Joint) filed by all parties, to MAG/JUDGE JOI ELIZABETH PEAKE (Garrett, Kim) (Entered: 01/31/2013)
9 ORDER APPROVING JOINT RULE 26(f) REPORT signed by MAG/JUDGE JOI ELIZABETH PEAKE on 2/5/13, that the parties' Joint Rule 26(f) Report [Doc. # 8 ] is approved as submitted and as noted herein. Plaintiff's Amended Pleadings due by 3/7/2013. Defendant's Amended Pleadings due by 3/7/2013. Discovery due by 12/20/2013. Joinder of Parties for Plaintiff due by 3/7/2013. Joinder of Parties for Defendant due by 3/7/2013. Discovery shall be placed on a case−management track established as: Exceptional. Should the parties agree to conduct mediation, they shall select a mediator according to the process described in the Local Rules. The parties do not consent to referral to a Magistrate Judge. Trial of the action is expected to take approximately 15 days. Neither party has demanded a jury trial. (Law, Trina) (Entered: 02/05/2013)
10 MOTION for Judgment on the Pleadings by TERRY S. JOHNSON. Responses due by 3/13/2013 (KITCHEN, S.) (Entered: 02/20/2013)
11 BRIEF re 10 MOTION for Judgment on the Pleadings by TERRY S. JOHNSON. (Attachments: # 1 Exhibit Amended Complaint from prior case, # 2 Exhibit Motion to Dismiss from prior case, # 3 Exhibit DOJ Letter, # 4 Exhibit Order in prior case)(KITCHEN, S.) (Entered: 02/20/2013)
MAG/JUDGE JOE L. WEBSTER added as referral judge. MAG/JUDGE JOI ELIZABETH PEAKE no longer assigned to case. (Powell, Gloria) (Entered: 02/25/2013)
12 STIPULATION Regarding Discovery by UNITED STATES OF AMERICA. (TREPEL, SAMANTHA) (Entered: 03/12/2013)
13 RESPONSE entitled "MEMORANDUM IN OPPOSITION TO DEFENDANT'S 10 MOTION FOR JUDGMENT ON THE PLEADINGS" filed by UNITED STATES OF AMERICA. Replies due by 4/1/2013. (TREPEL, SAMANTHA) Modified on 3/14/2013 to edit text. (Lloyd, Donna) (Entered: 03/13/2013)
NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENT(S) re 12 Stipulation: Document must be filed as a Motion for Stipulation and Order Regarding Discovery. Please refile document as a motion. (Lloyd, Donna) (Entered: 03/14/2013)
14 JOINT MOTION for Order Regarding Discovery by UNITED STATES OF AMERICA. (Attachments: # 1 Stipulation Regarding Discovery) (TREPEL, SAMANTHA) (Entered: 03/15/2013)
ELECTRONIC NOTICE to Samantha Trepel, Esq re 14 JOINT MOTIONfor Order Regarding Discovery. Counsel is requested to submit the Stipulation in an editable format compatible with WordPerfect to jschroeder@ncmd.uscourts.gov. (Solomon,

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03/18/2013 03/19/2013 03/25/2013 03/26/2013 04/19/2013 04/23/2013 04/23/2013 04/29/2013 05/07/2013 05/08/2013 05/08/2013
05/13/2013 05/31/2013 05/31/2013 05/31/2013 06/24/2013 06/25/2013
06/25/2013

Dianne) (Entered: 03/15/2013)
Motions Referred: RE: 14 JOINT MOTIONfor Order Regarding Discovery, to MAG/JUDGE JOE L. WEBSTER (Solomon, Dianne) (Entered: 03/18/2013)
15 REPLY BRIEF IN SUPPORT OF 10 MOTION FOR JUDGMENT ON THE PLEADINGS filed by TERRY S. JOHNSON. (KITCHEN, S.) Modified on 3/21/2013 to edit text. (Lloyd, Donna) (Entered: 03/19/2013)
16 STIPULATION AND ORDER REGARDING DISCOVERY as set out herein signed by MAG/JUDGE JOE L. WEBSTER on 03/25/2013. Re 14 Joint Motion for Order Regarding Discovery (Taylor, Abby) (Entered: 03/25/2013)
Motions Submitted: 10 MOTION for Judgment on the Pleadings to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 03/26/2013)
17 Joint MOTION for Protective Order by UNITED STATES OF AMERICA. (Attachments: # 1 Proposed Order)(TREPEL, SAMANTHA) (Entered: 04/19/2013)
Motions Referred: RE: 17 Joint MOTION for Protective Order , to MAG/JUDGE JOE L. WEBSTER (Solomon, Dianne) (Entered: 04/23/2013)
18 JOINT CONFIDENTIALITY AND PROTECTIVE ORDER signed by MAG/JUDGE JOE L. WEBSTER on 4/23/2013, re: Confidential information, as set out herein. (Lloyd, Donna) (Entered: 04/23/2013)
19 MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 4/29/2013, that for the reasons set forth above, Johnson's motion for judgment on the pleadings (Doc. 10 ) is DENIED. (Lloyd, Donna) (Entered: 04/29/2013)
20 JOINT MOTION for a Court Order by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order) (TREPEL, SAMANTHA) (Entered: 05/07/2013)
Motions Referred: RE: 20 JOINT MOTION for a Court Order, to MAG/JUDGE JOE L. WEBSTER. (Solomon, Dianne) (Entered: 05/08/2013)
21 ORDER signed by MAG/JUDGE JOE L. WEBSTER on 5/8/2013, granting 20 Joint Motion for a Court Order; that the Defendant provide the information requested by the United States in Requests 26 and 27 of its First Request for Production. (Lloyd, Donna) (Entered: 05/08/2013)
22 NOTICE of Hearing: Bench Trial set for 7/7/2014 09:30 AM in Unassigned Courtroom before UNASSIGNED. Trial Briefs, etc. due 6/16/2014.(Solomon, Dianne) (Entered: 05/13/2013)
23 MOTION to Compel Discovery by TERRY S. JOHNSON. Responses due by 6/24/2013. (Attachments: # 1 Exhibit − Interrogatories) (KITCHEN, S.) Modified on 6/4/2013 to edit text. (Lloyd, Donna) (Entered: 05/31/2013)
24 SEALED Attachments to 23 MOTION to Compel Discovery. (Attachments: # 1 Supplemental Response) (KITCHEN, S.) Modified on 6/4/2013 to edit text. (Lloyd, Donna) (Entered: 05/31/2013)
25 DEFENDANT'S BRIEF IN SUPPORT OF 23 MOTION to Compel Discovery. (KITCHEN, S.) (Entered: 05/31/2013)
26 MOTION for Extension of Time to File Response/Reply as to 25 Brief by UNITED STATES OF AMERICA. (TREPEL, SAMANTHA) (Entered: 06/24/2013)
ELECTRONIC NOTICE to Samantha Trepel, Esq. re 26 MOTION for Extension of Time to File Response/Reply as to 25 Brief . Counsel is reminded to submit a Proposed Order in an editable format compatible with WordPerfect to jschroeder@ncmd.uscourts.gov. (Solomon, Dianne) (Entered: 06/25/2013)
Motions Submitted: 26 MOTION for Extension of Time to File Response/Reply as to 25 Brief to MAG/JUDGE JOE L. WEBSTER− (Solomon, Dianne) (Entered: 06/25/2013)

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06/25/2013 07/01/2013 07/01/2013
07/03/2013 07/05/2013 07/19/2013 07/19/2013 07/23/2013
07/23/2013 07/30/2013
07/30/2013
08/13/2013 08/13/2013
08/14/2013

27 ORDER signed by MAG/JUDGE JOE L. WEBSTER on 6/25/2013, that the United States of America shall submit its response to Defendant's Motion to Compel no later than July 1, 2013. Responses due by 7/1/2013. (Lloyd, Donna) (Entered: 06/25/2013)
28 MOTION to Seal by UNITED STATES OF AMERICA. Responses due by 7/25/2013 (Attachments: # 1 Exhibit U.S. Opposition to Def's Motion to Compel, # 2 Exhibit Exhibit A to U.S. Opposition, # 3 Exhibit Exhibit C to U.S. Opposition, # 4 Exhibit Exhibit E to U.S. Opposition)(SONGER, MICHAEL) (Entered: 07/01/2013)
29 RESPONSE entitled "MEMORANDUM IN OPPOSITION TO DEFENDANT'S 23 MOTION TO COMPEL" filed by UNITED STATES OF AMERICA. Replies due by 7/18/2013. (Attachments: # 1 Exhibit A − Declaration of Gregory Friel, # 2 Exhibit C − Def's interrogatories, # 3 Exhibit E − U.S. Supp Response to Interrogatories, # 4 Exhibit − In re Kleberg, # 5 Exhibit − U.S. v. Lakin, # 6 Exhibit − U.S. v. Bond) (SONGER, MICHAEL) Modified on 7/3/2013 to edit text to accurately reflect document title. (Lloyd, Donna) (Entered: 07/01/2013)
30 REPLY BRIEF to 29 RESPONSE to 23 MOTION to Compel filed by TERRY S. JOHNSON. (KITCHEN, S.) Modified on 7/8/2013 to remove duplicate text. (Lloyd, Donna) (Entered: 07/03/2013)
Motions Referred: RE: 28 MOTION to Seal , 23 MOTION to Compel , to MAG/JUDGE JOE L. WEBSTER (Solomon, Dianne) (Entered: 07/05/2013)
31 Joint MOTION to Modify 9 Rule 26f (Joint) by UNITED STATES OF AMERICA. Responses due by 8/12/2013. (SONGER, MICHAEL) (Entered: 07/19/2013)
Motions Referred: RE: 31 Joint MOTION to Modify 9 Rule 26f (Joint) to MAG/JUDGE JOE L. WEBSTER. (Solomon, Dianne) (Entered: 07/19/2013)
32 ORDER signed by MAG/JUDGE JOE L. WEBSTER on 7/22/2013, granting 31 Motion to Modify Rule 26f (Joint) as set out. Completion of general discovery period: October 4, 2013; Simultaneous submission of expert reports: November 8, 2013; Submission of rebuttal expert reports: December 20, 2013; Depositions of expert witnesses: December 20, 2013 − January 24, 2013; Completion of expert discovery period: January 24, 2014. (Lloyd, Donna) (Entered: 07/23/2013)
Reset Discovery Deadline: Discovery due by 1/24/2014. (Lloyd, Donna) (Entered: 07/23/2013)
33 ORDER signed by MAG/JUDGE JOE L. WEBSTER on 7/30/2013, granting 28 Motion to Seal; that the Court hereby grants the United States' motion to file Exhibits B and D under seal and to file a redacted version of its Response in Opposition. The Clerk of Court is directed to file the exhibits in accordance with this order. (Lloyd, Donna) (Entered: 07/30/2013)
34 ORDER signed by MAG/JUDGE JOE L. WEBSTER on 7/30/2013, that Defendant's Motion to Compel (Docket Entry 23 ) be GRANTED. Within twenty−one (21) days of the entry of this Order, Plaintiff shall provide full and complete responses to Defendant's Interrogatories No. 14, 15 and 16. Pursuant to the Joint Confidentiality and Protective Order in place, all confidential information shall be filed under seal. (Lloyd, Donna) (Entered: 07/30/2013)
35 MOTION to Seal by UNITED STATES OF AMERICA. Responses due by 9/6/2013 (Attachments: # 1 Exhibit Motion for Reconsideration, # 2 Exhibit Exhibit C to Motion for Reconsideration)(SONGER, MICHAEL) (Entered: 08/13/2013)
36 MOTION FOR RECONSIDERATION OF THE MAGISTRATE'S ORDER (doc. 34 ) TO DISCLOSE CONFIDENTIAL INFORMANTS by UNITED STATES OF AMERICA. Responses due by 9/6/2013. (Attachments: # 1 Exhibit C − Def's First Interrogatories) (SONGER, MICHAEL) Modified on 9/4/2013 to edit text. (Lloyd, Donna) (Entered: 08/13/2013)
37 MOTION to Stay by UNITED STATES OF AMERICA. Responses due by 9/9/2013. (Attachments: # 1 Exhibit − Motion for Reconsideration) (SONGER, MICHAEL) (Entered: 08/14/2013)

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09/03/2013
09/03/2013
09/04/2013 09/04/2013 09/04/2013
09/08/2013 09/08/2013 09/09/2013 09/12/2013 09/15/2013 09/15/2013 09/17/2013 09/17/2013 09/17/2013 09/24/2013 09/26/2013 09/30/2013

38 RESPONSE IN OPPOSITION to 36 MOTION FOR RECONSIDERATION OF THE MAGISTRATE'S ORDER (doc. 34 ) TO DISCLOSE CONFIDENTIAL INFORMANTS filed by TERRY S. JOHNSON. Replies due by 9/17/2013. (KITCHEN, S.) Modified on 9/4/2013 to add text. (Lloyd, Donna) (Entered: 09/03/2013)
39 SEALED EXHIBITS to 38 RESPONSE IN OPPOSITION to 36 MOTION FOR RECONSIDERATION OF THE MAGISTRATE'S ORDER (doc. 34 ) TO DISCLOSE CONFIDENTIAL INFORMANTS by TERRY S. JOHNSON. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Cert. of Service) (KITCHEN, S.) Modified on 9/4/2013 to add text. (Lloyd, Donna) (Entered: 09/03/2013)
40 NOTICE of Appearance by attorney C AMANDA MARTIN on behalf of Movant Boney Publishers, Inc. (MARTIN, C) (Entered: 09/04/2013)
41 MOTION to Intervene by Boney Publishers, Inc. Responses due by 9/30/2013. (MARTIN, C) (Additional attachment(s) added on 9/4/2013: # 1 Text of Proposed Order) (Israel, Lisa). (Entered: 09/04/2013)
42 MEMORANDUM IN SUPPORT OF 41 MOTION to Intervene entitled "MEMORANDUM IN SUPPORT OF ACCESS TO PUBLIC RECORDS AND JUDICIAL RECORDS" filed by Boney Publishers, Inc. (Attachments: # 1 Appendix) (MARTIN, C) Modified on 9/5/2013 to edit text. (Lloyd, Donna) (Entered: 09/04/2013)
43 RESPONSE in Opposition re 37 MOTION to Stay filed by TERRY S. JOHNSON. Replies due by 9/23/2013. (KITCHEN, S.) (Entered: 09/08/2013)
44 NOTICE OF SUBSTITUTION OF COUNSEL by UNITED STATES OF AMERICA. (SONGER, MICHAEL) Modified on 9/9/2013 to edit text. (Lloyd, Donna) (Entered: 09/08/2013)
Reset Reply Deadline to 43 RESPONSE in Opposition to 37 MOTION to Stay: Replies due by 9/25/2013. (Lloyd, Donna) Modified on 9/9/2013 to add text. (Lloyd, Donna) (Entered: 09/09/2013)
45 AMENDED CERTIFICATE OF SERVICE TO 44 NOTICE OF SUBSTITUTION OF COUNSEL by UNITED STATES OF AMERICA. (SONGER, MICHAEL) Modified on 9/13/2013 to edit text. (Lloyd, Donna) (Entered: 09/12/2013)
46 *** WITHDRAWN *** MOTION for Sanctions by TERRY S. JOHNSON. Responses due by 10/10/2013. (KITCHEN, S.) Modified on 11/14/2013 − See 67 Order for Court's ruling. (Lloyd, Donna) (Entered: 09/15/2013)
47 BRIEF IN SUPPORT OF 46 MOTION for Sanctions. (KITCHEN, S.) (Entered: 09/15/2013)
48 NOTICE of Appearance by attorney AARON S. FLEISHER on behalf of Plaintiff UNITED STATES OF AMERICA (FLEISHER, AARON) (Entered: 09/17/2013)
49 MOTION to Seal by UNITED STATES OF AMERICA. Responses due by 10/11/2013 (Attachments: # 1 Exhibit Reply in Support of Motion for Reconsideration)(SONGER, MICHAEL) (Entered: 09/17/2013)
50 REPLY to 38 RESPONSE to 36 MOTION for Reconsideration re 34 Order on Motion to Compel filed by UNITED STATES OF AMERICA. (SONGER, MICHAEL) Modified on 9/20/2013 to edit text. (Lloyd, Donna) (Entered: 09/17/2013)
51 REPLY to 43 RESPONSE to 37 MOTION TO STAY THE MAGISTRATE'S JULY 30, 2013 ORDER filed by UNITED STATES OF AMERICA. (SONGER, MICHAEL) Modified on 9/25/2013 to edit text. (Lloyd, Donna) (Entered: 09/24/2013)
Motions Submitted: 35 MOTION to Seal , 37 MOTION to Stay , 36 MOTION for Reconsideration re 34 Order on Motion to Compel, to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 09/26/2013)
52 RESPONSE re 41 MOTION to Intervene filed by UNITED STATES OF AMERICA. Replies due by 10/18/2013. (SONGER, MICHAEL) (Entered: 09/30/2013)

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10/08/2013
10/08/2013 10/09/2013 10/09/2013
10/09/2013
10/10/2013
10/16/2013 10/17/2013 10/18/2013 10/18/2013 10/21/2013 10/21/2013
10/25/2013 10/25/2013 10/28/2013 10/31/2013 11/05/2013

53 RESPONSE in Opposition re 49 MOTION to Seal filed by TERRY S. JOHNSON. Replies due by 10/25/2013. (Attachments: # 1 Affidavit Declaration of Albright, # 2 Exhibit A −− News Story, # 3 Exhibit D −− Newspaper Article on e−mails, # 4 Supplement Allergan v Apotex)(KITCHEN, S.) (Entered: 10/08/2013)
54 SEALED EXHIBITS re 49 MOTION to Seal by Defendant TERRY S. JOHNSON, Plaintiff UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit C −− Public Records Letter)(KITCHEN, S.) (Entered: 10/08/2013)
55 CERTIFICATE re 54 SEALED Exhibits by Defendant TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 10/09/2013)
56 MOTION to Seal Four Exhibits to United States' Opposition to Defendant's Motion for Sanctions by UNITED STATES OF AMERICA. Responses due by 11/4/2013. (Attachments: # 1 Exhibit − Opposition to Motion for Sanctions, # 2 Exhibit B to Opposition to Motion for Sanctions) (SONGER, MICHAEL) Modified on 10/10/2013 to edit text. (Lloyd, Donna) (Entered: 10/09/2013)
57 RESPONSE in Opposition to 46 MOTION for Sanctions [Redacted] filed by UNITED STATES OF AMERICA. Replies due by 10/28/2013. (Attachments: # 1 Exhibit B) (SONGER, MICHAEL) Modified on 10/10/2013 to edit text. (Lloyd, Donna) (Entered: 10/09/2013)
58 ORDER signed by JUDGE THOMAS D. SCHROEDER on 10/10/2013, that the motion to stay is GRANTED to allow sufficient time for the court to consider the merits of the Motion for Reconsideration (Doc. 36 ) filed by the United States. (Daniel, J) (Entered: 10/10/2013)
59 REPLY to 52 RESPONSE to 41 MOTION to Intervene filed by BONEY PUBLISHERS, INC. (MARTIN, C) Modified on 10/17/2013 to edit text. (Lloyd, Donna) (Entered: 10/16/2013)
Motions Submitted: 41 MOTION to Intervene to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 10/17/2013)
60 NOTICE of Hearing: Motion Hearing set for 11/8/2013 02:00 PM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 10/18/2013)
Set/Reset Deadlines/Hearings: Motion Hearing set for 11/8/2013 02:00 PM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 10/18/2013)
61 MOTION FOR ORDER TO SHOW CAUSE by TERRY S. JOHNSON. Responses due by 11/15/2013. (Attachments: # 1 Exhibit A − Subpoena, # 2 Exhibit B − Transcript) (KITCHEN, S.) (Entered: 10/21/2013)
62 BRIEF IN SUPPORT OF 61 MOTION FOR ORDER TO SHOW CAUSE by TERRY S. JOHNSON. (Attachments: # 1 Appendix − Dunkin Donuts v. Three Rivers Entertainment) (KITCHEN, S.) Modified on 10/22/2013 to edit text. (Lloyd, Donna) (Entered: 10/21/2013)
63 MOTION to Seal by UNITED STATES OF AMERICA. Responses due by 11/18/2013 (Attachments: # 1 Exhibit U.S. Reply in Support of Motion to Seal)(SONGER, MICHAEL) (Entered: 10/25/2013)
64 REPLY to 53 RESPONSE to 49 MOTION to Seal filed by UNITED STATES OF AMERICA. (SONGER, MICHAEL) Modified on 10/29/2013 to edit text. (Lloyd, Donna) (Entered: 10/25/2013)
65 RESPONSE in Opposition re 63 MOTION to Seal filed by TERRY S. JOHNSON. Replies due by 11/15/2013. (KITCHEN, S.) (Entered: 10/28/2013)
Motions Submitted: 49 MOTION to Seal , 46 MOTION for Sanctions to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 10/31/2013)
66 Joint MOTION TO MODIFY EXPERT DISCLOSURE DEADLINES by UNITED STATES OF AMERICA. Responses due by 11/29/2013. (SONGER, MICHAEL) (Entered: 11/05/2013)

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11/08/2013 11/08/2013 11/14/2013
11/15/2013 11/25/2013 11/26/2013

Motions Submitted: 63 MOTION to Seal , 49 MOTION to Seal , 56 MOTION to Seal United States' Opposition to Defendant's Motion for Sanctions, 66 Joint MOTION to Modify Expert Disclosure Schedule to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 11/08/2013)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Motion Hearing held on 11/8/2013 re 63 MOTION to Seal filed by UNITED STATES OF AMERICA, 35 MOTION to Seal filed by UNITED STATES OF AMERICA, 56 MOTION to Seal United States' Opposition to Defendant's Motion for Sanctions filed by UNITED STATES OF AMERICA, 46 MOTION for Sanctions filed by TERRY S. JOHNSON, 36 MOTION for Reconsideration re 34 Order on Motion to Compel, filed by UNITED STATES OF AMERICA, 41 MOTION to Intervene filed by BONEY PUBLISHERS, INC., 49 MOTION to Seal filed by UNITED STATES OF AMERICA, 61 MOTION for Order to Show Cause filed by TERRY S. JOHNSON. Michael Songer, Esq. appeared on behalf of the Government, S. C. Kitchen, Esq. and C. Amanda Martin, Esq. appeared for Boney Publishers, Inc. The court heard from the parties on the various motions; written order to follow. (Court Reporter Nesbit.) (Solomon, Dianne) (Entered: 11/18/2013)
67 ORDER signed by JUDGE THOMAS D. SCHROEDER on 11/14/2013. On November 8, 2013, the court heard argument on several motions filed by the parties. The purpose of this Order is to memorialize the court's rulings during the hearing. During the hearing, the parties reached agreement on the Government's motion for reconsideration (Doc. 36 ) of the Magistrate Judge's ruling on discovery (Doc. 34 ) as set out herein; that given the resolution of the motion for reconsideration (Doc. 36 ), the court need not consider the motions to seal (Docs. 35 , 49 , 56 , and 63 ) insofar as none of those materials was necessary, and the motions and documents are deemed withdrawn upon the request of the filing party. The materials subject to the motions to seal shall be returned to the appropriate party. The court accepts the parties' redacted briefs; that the Defendant has also withdrawn the motion for sanctions (Doc. 46 ). Therefore, the court need not consider it further. The Defendant shall have until and through November 15, 2013, to review the list of former deputies/officers identified by the Government in response to interrogatory 16 to determine whether additional depositions will be required. The Defendant's request to reopen fact discovery for the limited reasons noted during the hearing is allowed, and the deadline for completion of that limited fact discovery and for all expert discovery shall now be January 24, 2014. That the parties' joint motion to modify expert disclosure deadlines (Doc. 66 ) will be granted, and the deadline for expert disclosures and reports is extended through November 15, 2013. That the court will refer disposition of the motion for order to show cause (Doc. 61 ) to Magistrate Judge Webster, who is overseeing discovery in the case. Finally, the motion of Boney Publishers, Inc. to intervene (Doc. 41 ) is GRANTED. Boney's counsel acknowledged that the motion for access to the documents filed with the motions to seal (Doc. 42 ) was moot in light of the agreement of the parties as to the claimed informants, as noted above. As to Boney's request to modify the Confidentiality Order entered into by the parties and approved by the Magistrate Judge (Doc. 18 ), such motion should be addressed by the Magistrate Judge in the first instance as he is overseeing discovery in this case and approved the parties' Confidentiality Order. Therefore, the court will coordinate with Magistrate Judge Webster for further proceedings as to this motion. (Lloyd, Donna) (Entered: 11/14/2013)
68 MOTION TO MODIFY EXPERT DISCLOSURE DEADLINE AS TO A SINGLE EXPERT by UNITED STATES OF AMERICA. Responses due by 12/9/2013. (SONGER, MICHAEL) Modified on 11/18/2013 to edit text. (Lloyd, Donna) (Entered: 11/15/2013)
69 RESPONSE in Opposition re 68 MOTION to Modify 67 Order on Motion to Seal, Order on Motion for Reconsideration, Order on Motion to Intervene, Order on Motion for Sanctions,,,, Order on Motion to Modify, filed by TERRY S. JOHNSON. Replies due by 12/12/2013. (Attachments: # 1 Appendix EEOC v Dolgencorp)(KITCHEN, S.) (Entered: 11/25/2013)
70 REPLY, filed by Plaintiff UNITED STATES OF AMERICA, to Response to 68 MOTION to Modify 67 Order on Motion to Seal, Order on Motion for Reconsideration, Order on Motion to Intervene, Order on Motion for Sanctions, Order on Motion to Modify, filed by UNITED STATES OF AMERICA. (Attachments: # 1

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 8 of 23

11/27/2013 11/27/2013 12/05/2013 12/11/2013
12/11/2013 12/17/2013
12/20/2013
12/20/2013 12/30/2013 12/30/2013 01/02/2014 01/06/2014

Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(SONGER, MICHAEL) (Entered: 11/26/2013)
Motions Submitted: 68 MOTION to Modify 67 Order on Motion to Seal, Order on Motion for Reconsideration, Order on Motion to Intervene, Order on Motion for Sanctions, Order on Motion to Modify to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 11/27/2013)
71 NOTICE of Appearance by attorney SILVIA J. DOMINGUEZ−REESE on behalf of Plaintiff UNITED STATES OF AMERICA (DOMINGUEZ−REESE, SILVIA) (Entered: 11/27/2013)
Motions Referred: RE: 61 MOTION for Order to Show Cause , to MAG/JUDGE JOE L. WEBSTER (Solomon, Dianne) (Entered: 12/05/2013)
72 ORDER TO SHOW CAUSE signed by MAG/JUDGE JOE L. WEBSTER on 12/11/2013, that JESSICA FLORES ROSALES appear before the United States District Court for the Middle District of North Carolina on the 22nd day of January, 2014, at 9:30 a.m., Courtroom No. 1, Second Floor, 323 East Chapel Hill Street, Durham, North Carolina, to show cause why she should not be held in civil contempt for disobeying a subpoena to appear and testify at a deposition served upon her on September 25, 2013. FURTHER, that a copy of this Order together with the Motion for Order to Show Cause (Docket Entry 61 ) and exhibits thereto, be personally served on JESSICA FLORES ROSALES before January 12, 2014, and that such service shall constitute notice thereof. (Lloyd, Donna) Modified on 12/11/2013 to add text. (Lloyd, Donna) (Entered: 12/11/2013)
Set/Reset Deadlines/Hearings: Show Cause Hearing set for 1/22/2014 at 9:30 AM in Durham Courtroom #1 before MAG/JUDGE JOE L. WEBSTER. (Lloyd, Donna) (Entered: 12/11/2013)
TEXT ORDER re: 68 Motion to Modify filed by the UNITED STATES OF AMERICA. Before the court is the motion of the United States for an extension of time to file its expert report of Margo Frasier. (Doc. 68 .) The matter is fully briefed. (Docs. 69 , 70 .) For the reasons set forth in the Government's motion, the court finds good cause for allowing the extension. Therefore, the Government's motion to extend until November 25, 2013, the time to produce the report of expert Frasier is GRANTED, and the Defendant's time to respond is extended to January 6, 2014. SO ORDERED. Signed by JUDGE THOMAS D. SCHROEDER on 12/17/2013. (Solomon, Dianne) (Entered: 12/17/2013)
Telephone Conference with Amanda Martin, Esq., S. C. Kitchen, Esq. and Michael Songer, Esq. held on 12/20/2013. Counsel notified that Judge Webster will address issues related to the Protective Order on 1/22/2014 09:30 AM in Durham, Courtroom No. 1. The court also requests that counsel file a motion addressing specific concerns with the protective order by 12/30/2013. Responses, if any, should be filed 1/7/2014 and Replies, if any, will be due 1/14/13. (Solomon, Dianne) (Entered: 12/20/2013)
73 Joint MOTION TO MODIFY THE EXPERT DISCOVERY SCHEDULE re 32 Order by UNITED STATES OF AMERICA. Responses due by 1/13/2014. (SONGER, MICHAEL) Modified on 12/26/2013 to edit text. (Lloyd, Donna) (Entered: 12/20/2013)
74 MOTION to Modify Joint Confidentiality and Protective Order by BONEY PUBLISHERS, INC. Responses due by 1/24/2014 (Attachments: # 1 Text of Proposed Order)(MARTIN, C) Modified on 1/7/2014 to remove duplicate text. (Garland, Leah) (Entered: 12/30/2013)
75 MEMORANDUM filed by Movant BONEY PUBLISHERS, INC. re 74 MOTION to Modify Joint Confidentiality and Protective Order filed by BONEY PUBLISHERS, INC.. (MARTIN, C) (Entered: 12/30/2013)
76 USMS Return of Service for Order to Show Cause served on Jessica Flores Rosales in person on 12/30/2013, filed by UNITED STATES OF AMERICA. (Taylor, Abby) (Entered: 01/02/2014)
77 RESPONSE in Opposition re 74 MOTION to Modify Joint Confidentiality and Protective Order filed by UNITED STATES OF AMERICA. Replies due by 1/24/2014. (SONGER, MICHAEL) (Entered: 01/06/2014)

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01/07/2014 01/08/2014 01/09/2014 01/10/2014 01/14/2014 01/14/2014 01/22/2014
02/04/2014 02/04/2014 02/05/2014 02/10/2014

78 NOTICE of Appearance by attorney KARLENE S. TURRENTINE on behalf of Defendant TERRY S. JOHNSON (TURRENTINE, KARLENE) (Entered: 01/07/2014)
Motions Referred: RE: 73 Joint MOTION to Modify 32 Order on Motion to Modify, Expert Discovery Schedule, to MAG/JUDGE JOE L. WEBSTER (Solomon, Dianne) (Entered: 01/08/2014)
TEXT ORDER granting 73 Motion to Modify the expert discovery schedule. For good cause shown, the parties shall have up to and including January 31, 2014 to complete expert discovery. Issued by MAG/JUDGE JOE L. WEBSTER on 1/9/2014. (Lee, Pedra) (Entered: 01/09/2014)
Set Deadlines. Discovery due by 1/31/2014. (Contreras, Jamie) (Entered: 01/10/2014)
79 REPLY, filed by Movant BONEY PUBLISHERS, INC., to Response to 74 MOTION to Modify Joint Confidentiality and Protective Order filed by BONEY PUBLISHERS, INC.. (MARTIN, C) (Entered: 01/14/2014)
Motions Referred: RE: 74 MOTION to Modify Joint Confidentiality and Protective Order, to MAG/JUDGE JOE L. WEBSTER (Solomon, Dianne) (Entered: 01/14/2014)
Minute Entry for proceedings held before MAG/JUDGE JOE L. WEBSTER: Show Cause Hearing held on 1/22/2014. For the reasons stated in open court, BONEY PUBLISHERS, INC.'s MOTION to Modify Joint Confidentiality and Protective Order shall be taken under advisement and the parties will be notified of the Court's ruling at a later date; the Court finds that Jessica Flores Rosales shall be held in contempt for failure to appear for deposition; the Court orders that Ms. Rosales shall appear for the next scheduled deposition and the parties are instructed to notify the Court in the event Ms. Rosales fails to appear; the Court will not require Ms. Rosales to pay Attorneys fees or any other costs at this time. (Attorney(s) Michael Songer and Silvia Dominguez−Reese appeared on behalf of plaintiff; Attorney(s) S.C. Kitchen and Karlene Turrentine appeared on behalf of defendant TERRY S. JOHNSON; Attorney C. Amanda Martin appeared on behalf of movant BONEY PUBLISHERS, INC.; Appearance made by Jessica Flores Rosales pursuant to the Order to Show Cause entered 12/11/2013; Max Roy Stawsky sworn as Spanish Interpreter; Proceedings Recorded) (Kemp, Donita) (Entered: 01/22/2014)
80 NOTICE of Intent to File Dispositive Motions by Plaintiff UNITED STATES OF AMERICA. (SONGER, MICHAEL) (Entered: 02/04/2014)
81 MOTION for Leave to File Excess Pages by UNITED STATES OF AMERICA. Responses due by 2/28/2014. (SONGER, MICHAEL) (Entered: 02/04/2014)
82 NOTICE of Intent to File Dispositive Motions by Defendant TERRY S. JOHNSON (KITCHEN, S.) (Entered: 02/05/2014)
83 ORDER signed by MAG/JUDGE JOE L. WEBSTER on 2/10/2014, that Intervenor's Motion to Modify Joint Confidentiality and Protective Order (Docket Entry 74 ) be DENIED. Although the pre− trial discovery documents are not exempted under the North Carolina General Statutes, the documents are not 'judicial records' that garner presumptive public access, nor does state law bind this Court. Thus, this Court had the power to issue the Protective Order, and continues to have the power to uphold it. The Protective Order is, however, MODIFIED, in the following ways. Paragraph 3(a) of the Protective Order will no longer implement an automatic confidential designation, but rather it is the responsibility of the parties to seal, redact, and/ or designate as confidential any documents they wish to keep from public access due to any "personally identifiable information". Paragraph 8 of the Protective Order only applies to non−judicial records, and does not shield documents used to adjudicate substantive rights or attached to dispositive motions. Upon a proper motion by a party to seal, redact, and/ or designate judicial records as confidential, a court "must (1) provide public notice of the request to seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the documents, and (3) provide specific reasons and factual findings supporting its decision to seal the documents and for rejecting the alternatives." &#8312 (Lloyd, Donna) (Entered: 02/10/2014)

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02/24/2014 02/28/2014 02/28/2014 03/02/2014
03/02/2014 03/03/2014 03/03/2014
03/03/2014 03/04/2014 03/05/2014 03/05/2014

84 INTERVENOR'S OBJECTIONS TO MAGISTRATE JUDGE'S FEBRUARY 10, 2014 83 Order by Movant BONEY PUBLISHERS, INC. (MARTIN, C) Modified on 2/26/2014 to edit text. (Lloyd, Donna) (Entered: 02/24/2014)
Motions Referred: RE: 81 MOTION for Leave to File Excess Pages , to MAG/JUDGE JOE L. WEBSTER (Solomon, Dianne) (Entered: 02/28/2014)
85 RESPONSE in Opposition re 81 MOTION for Leave to File Excess Pages filed by TERRY S. JOHNSON. Replies due by 3/17/2014. (Attachments: # 1 Supplement unpublished case, # 2 Supplement unpublished case)(TURRENTINE, KARLENE) (Entered: 02/28/2014)
86 MOTION for Summary Judgment by TERRY S. JOHNSON. Responses due by 4/4/2014 (Attachments: # 1 Exhibit A − Response to Interrogatories, # 2 Exhibit B − Dep of Allen, # 3 Exhibit C − Dep of Harrison, # 4 Exhibit D − Dep of Johnson, # 5 Exhibit E − Dep of Britt, # 6 Exhibit F − Transcript of Meeting, # 7 Exhibit G − Dep of Serniak, # 8 Exhibit H − Presentation of Serniak, # 9 Exhibit I − Dep of Fichou, # 10 Exhibit J − Dep of Culler, # 11 Exhibit K − Dep of Guevara, # 12 Exhibit L − Complaint to BPD, # 13 Exhibit M − ICE Memo, # 14 Exhibit N − Dep of Cobb, # 15 Exhibit O − CV of Banks, # 16 Exhibit P − Expert Report of Banks, # 17 Exhibit Q − Dep of Crisp, # 18 Exhibit R − Dec of Dockery, # 19 Exhibit R − Ex 1, # 20 Exhibit R − Ex 2, # 21 Exhibit R − Ex 3, # 22 Exhibit R − Ex 4, # 23 Exhibit R − Ex 5, # 24 Exhibit R − Ex 6, # 25 Exhibit R − Ex 7, # 26 Exhibit R − Ex 8, # 27 Exhibit S − Dec of Anthony, # 28 Exhibit T − Dep of Anthony, # 29 Exhibit U − Dep of Rosales, # 30 Exhibit V − Dep of Coleman, # 31 Exhibit W − Dep of Arzola, # 32 Exhibit X − Dep of Crotts, # 33 Exhibit Y − Dep of Crotts, # 34 Exhibit Z − Dep of Keller, # 35 Exhibit AA − Dep of Wilson, # 36 Exhibit BB − Dec of Longamore, # 37 Exhibit CC − Dep of Fortner) (KITCHEN, S.) Modified on 3/3/2014 to remove duplicate text. (Lloyd, Donna) (Entered: 03/02/2014)
87 BRIEF IN SUPPORT OF 86 MOTION for Summary Judgment. (KITCHEN, S.) Modified on 3/5/2014 to edit text. (Lloyd, Donna) (Entered: 03/02/2014)
88 MOTION for Summary Judgment by UNITED STATES OF AMERICA. Responses due by 4/7/2014. (SONGER, MICHAEL) (Entered: 03/03/2014)
89 BRIEF IN SUPPORT OF 88 MOTION for Summary Judgment by UNITED STATES OF AMERICA. Responses due by 4/7/2014 (Attachments: # 1 Affidavit Songer Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44, # 46 Exhibit 45, # 47 Exhibit 46, # 48 Exhibit 47, # 49 Exhibit 48, # 50 Exhibit 49, # 51 Exhibit 50, # 52 Exhibit 51, # 53 Exhibit 52, # 54 Exhibit 53, # 55 Exhibit 54, # 56 Exhibit 55, # 57 Exhibit 56, # 58 Exhibit 57, # 59 Exhibit 58, # 60 Exhibit 59, # 61 Exhibit 60, # 62 Exhibit 61, # 63 Exhibit 62, # 64 Exhibit 63) (SONGER, MICHAEL) Modified on 3/5/2014 to edit text. (Lloyd, Donna) (Entered: 03/03/2014)
90 REPLY to 85 RESPONSE to 81 MOTION for Leave to File Excess Pages filed by UNITED STATES OF AMERICA. (SONGER, MICHAEL) Modified on 3/5/2014 to edit text. (Lloyd, Donna) (Entered: 03/03/2014)
Motions Referred: RE: 81 MOTION for Leave to File Excess Pages , to MAG/JUDGE JOE L. WEBSTER (Solomon, Dianne) (Entered: 03/04/2014)
Motions Submitted: 81 MOTION for Leave to File Excess Pages to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 03/05/2014)
NOTICE of Docket Text/Event Modification re 89 MOTION for Summary Judgment Brief in Support: Incorrect event was selected when document was filed setting this document as a motion. Event has been corrected and docket text has been modified to reflect document is "BRIEF IN SUPPORT OF 88 MOTION for Summary Judgment." (Lloyd, Donna) (Entered: 03/05/2014)

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 11 of 23

03/05/2014 03/17/2014 03/17/2014 03/27/2014 03/27/2014 04/04/2014 04/07/2014
04/08/2014 04/11/2014

91 ORDER signed by JUDGE THOMAS D. SCHROEDER on 3/5/2014, as to 81 Motion for Leave to File Excess Pages; that the motion is GRANTED, and each party is permitted to file principal summary judgment briefs of no more than 40 pages. (Lloyd, Donna) (Entered: 03/05/2014)
92 RESPONSE TO INTERVENOR'S 84 OBJECTIONS TO MAGISTRATE JUDGE'S FEBRUARY 10, 2014 83 ORDER filed by UNITED STATES OF AMERICA. (FLEISHER, AARON) Modified on 3/18/2014 to edit text and remove reply deadline. (Lloyd, Donna) (Entered: 03/17/2014)
CASE REFERRED to JUDGE THOMAS D. SCHROEDER 83 Order, 84 Objection, and 92 Response. (Solomon, Dianne) (Entered: 03/17/2014)
93 MOTION FOR ORDER REQUIRING PLAINTIFF TO PAY FEES FOR EXPERT DEPOSITION by TERRY S. JOHNSON. Responses due by 4/21/2014. (Attachments: # 1 Exhibit 1 − Expert Deposition Invoice)(TURRENTINE, KARLENE) Modified on 3/31/2014 to edit text to accurately reflect document title. (Lloyd, Donna) (Entered: 03/27/2014)
94 BRIEF IN SUPPORT OF 93 MOTION FOR ORDER REQUIRING PLAINTIFF TO PAY EXPERT DEPOSITION FEES. (TURRENTINE, KARLENE) Modified on 3/31/2014 to edit text. (Lloyd, Donna) (Entered: 03/27/2014)
95 RESPONSE in Opposition to 86 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA. Replies due by 4/21/2014. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(SONGER, MICHAEL) (Entered: 04/04/2014)
96 RESPONSE in Opposition re 88 MOTION for Summary Judgment filed by TERRY S. JOHNSON. Replies due by 4/24/2014. (Attachments: # 1 Exhibit A − Dep of Crain, # 2 Exhibit B − Dep of Allen, # 3 Exhibit C − Dep of Coleman, # 4 Exhibit D − Dep of Crowder, # 5 Exhibit E − Dep of Hoover, # 6 Exhibit F − Dep of Rossi, # 7 Exhibit G − Operation Plan, # 8 Exhibit H − Dep of Britt, # 9 Exhibit I − Dep of Lloyd, # 10 Exhibit J − Dep of Johnson, # 11 Exhibit K − Dep of Williams, # 12 Exhibit L − Dep of Wilson, # 13 Exhibit M − Dep of Evans, # 14 Exhibit N − Dep of Fortner, # 15 Exhibit O − Dep of Nicholson, # 16 Exhibit P − Dep of Randleman, # 17 Affidavit Q − Dec of Johnson, # 18 Exhibit R − Dep of Crotts, # 19 Exhibit S − Letter from Crotts, # 20 Exhibit T − Letter from Crotts, # 21 Exhibit U − Dep of Wiley, # 22 Affidavit V − Dec of Britt, # 23 Exhibit W − E−mail, # 24 Exhibit X − Dep of Snyder, # 25 Exhibit Y − Dep of Ray, # 26 Exhibit Z − Dep of Miles, # 27 Exhibit AA − Dep of Crabtree, # 28 Exhibit BB − Dep of Helms, # 29 Exhibit CC − Dep of Cobb, # 30 Exhibit DD − Dep of Lankford, # 31 Affidavit EE − Dec of Anthony, # 32 Exhibit FF − Dep of Lamberth, # 33 Affidavit GG − Dec of Dockery, # 34 Exhibit HH − Report of Banks, # 35 Exhibit II − Dep of Conklin, # 36 Affidavit JJ − Dec of Hall, # 37 Affidavit KK − Dec of Herron, # 38 Exhibit LL − Dep of Cruz, # 39 Exhibit MM − Dep of Davis, # 40 Exhibit NN − Dep of Mowbray, # 41 Exhibit OO − Dep of Terrell, # 42 Exhibit PP − Dep of Crisp, # 43 Exhibit QQ − Dep of Culler, # 44 Exhibit RR − Dep of Husser, # 45 Exhibit SS − Dep of Serniak, # 46 Exhibit TT − Dep of Fichou, # 47 Exhibit UU − Dep of Frasier, # 48 Affidavit VV − Dec of Welch, # 49 Affidavit WW − Dec of Marshall, # 50 Affidavit XX − Dec of Page, # 51 Affidavit YY − Dec of Jones, # 52 Affidavit ZZ − Dec of Carter, # 53 Exhibit AAA − Harassment Policy, # 54 Exhibit BBB − Complaint Policy, # 55 Exhibit CCC − Dep of Guevara, # 56 Exhibit DDD − Dep of Banks, # 57 Exhibit EEE − Alpert Group Report, # 58 Exhibit FFF − Travis County Web Page, # 59 Exhibit GGG − Dep of Lafferty, # 60 Exhibit HHH − Checkpoint Notice, # 61 Exhibit III − Scott v Cohen)(KITCHEN, S.) (Entered: 04/07/2014)
97 WITHDRAWAL of 93 MOTION FOR ORDER REQUIRING PLAINTIFF TO PAY FEES FOR EXPERT DEPOSITION filed by TERRY S. JOHNSON. (Attachments: # 1 Exhibit 1 − Plaintiff's Agreement to Pay) (TURRENTINE, KARLENE) Modified on 4/9/2014 to edit text. (Lloyd, Donna) (Entered: 04/08/2014)
98 MOTION TO EXTEND PAGE LIMITATION filed by UNITED STATES OF AMERICA. Responses due by 5/5/2014. (SONGER, MICHAEL) Modified on 4/14/2014 to edit text. (Lloyd, Donna) (Entered: 04/11/2014)

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 12 of 23

04/15/2014 04/20/2014 04/22/2014 04/22/2014 04/24/2014
04/29/2014 05/06/2014 05/06/2014 05/08/2014 05/08/2014
05/19/2014 05/20/2014 05/21/2014 05/22/2014 05/22/2014

ELECTRONIC NOTICE to Michael Songer, Esq. re 98 MOTION for Leave to File Excess Pages . Counsel is reminded to submit a Proposed Order in an editable format compatible with Word/WordPerfect to jschroeder@ncmd.uscourts.gov. (Solomon, Dianne) (Entered: 04/15/2014)
99 REPLY to 95 RESPONSE to 86 MOTION for Summary Judgment filed by TERRY S. JOHNSON. (Attachments: # 1 Exhibit A − Dep of Arndt, # 2 Exhibit Robinson v Bowser) (KITCHEN, S.) Modified on 4/21/2014 to remove duplicate text. (Lloyd, Donna) (Entered: 04/20/2014)
Motions Submitted: 98 MOTION for Leave to File Excess Pages to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 04/22/2014)
100 ORDER signed by JUDGE THOMAS D. SCHROEDER on 4/22/2014, that the motion (doc. 98 ) is GRANTED, and the United States of America is permitted to file a reply brief of no more than 20 pages. (Lloyd, Donna) (Entered: 04/22/2014)
101 REPLY to 96 RESPONSE to 88 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19) (SONGER, MICHAEL) Modified on 4/28/2014 to edit text. (Lloyd, Donna) (Entered: 04/24/2014)
Motions Submitted: 86 MOTION for Summary Judgment , 88 MOTION for Summary Judgment to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 04/29/2014)
102 MOTION FOR SPECIAL SETTING filed by UNITED STATES OF AMERICA. Responses due by 5/30/2014. (SONGER, MICHAEL) Modified on 5/7/2014 to edit text to accurately reflect document title. (Lloyd, Donna) (Entered: 05/06/2014)
Motions Submitted: 102 MOTION FOR SPECIAL SETTING to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 05/06/2014)
Motions No Longer Submitted 102 MOTION for Trial Special Setting for Trial to JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 05/08/2014)
103 ORDER signed by JUDGE THOMAS D. SCHROEDER on 5/8/2014, that before the court are cross−motions for summary judgment. (Docs. 86 , 88 .) The motions have been fully briefed. (Docs. 87 , 89 , 95 , 96 , 99 , 101 .) Defendant Terry S. Johnson asserted a statute of limitations defense in his answer (Doc. 6 at 8), and referred to that fact in his motion for summary judgment (Doc. 87 at 1). He provided argument regarding that defense for the first time in his reply. (Doc. 99 at 6−10.) Should the United States wish to reply to that argument, it may file a limited surreply of up to five pages by May 22, 2014. (Lloyd, Donna) (Entered: 05/08/2014)
104 MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 5/19/2014, Boney's objections 84 are overruled, and the Magistrate Judge's Amended Protective Order is affirmed.(Powell, Gloria) (Entered: 05/19/2014)
105 RESPONSE IN OPPOSITION TO 102 MOTION FOR SPECIAL SETTING filed by TERRY S. JOHNSON. Replies due by 6/6/2014. (Attachments: # 1 Exhibit 1 − Emails b/n Counsel) (TURRENTINE, KARLENE) Modified on 5/21/2014 to add text to identify exhibit. (Lloyd, Donna) (Entered: 05/20/2014)
106 SURREPLY IN SUPPORT OF 88 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA. (SONGER, MICHAEL) (Entered: 05/21/2014)
107 NOTICE of Trial Calendar Bench Trial set for 7/7/2014 09:30 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Williamson, Wanda) (Entered: 05/22/2014)
108 REPLY to 105 RESPONSE IN OPPOSITION TO 102 MOTION FOR SPECIAL SETTING filed by UNITED STATES OF AMERICA. (SONGER, MICHAEL) Modified on 5/27/2014 to edit text. (Lloyd, Donna) (Entered: 05/22/2014)

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 13 of 23

05/27/2014 05/29/2014
05/29/2014 06/02/2014 06/06/2014 06/06/2014 06/09/2014 06/09/2014 06/13/2014
06/13/2014 06/17/2014 06/20/2014 06/20/2014 06/20/2014 06/20/2014 06/22/2014

Motions Submitted: 102 MOTION for Trial Special Setting for Trial to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 05/27/2014)
109 NOTICE of Hearing: Motion Hearing re: 86 MOTION for Summary Judgment filed by TERRY S. JOHNSON, 88 MOTION for Summary Judgment and 102 MOTION for Special Setting filed by UNITED STATES OF AMERICA set for 6/13/2014 10:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 05/29/2014)
Set/Reset Deadlines/Hearings: Motion Hearing set for 6/13/2014 10:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 05/29/2014)
110 NOTICE of Hearing: Settlement Conference set for 6/17/2014 01:30 PM in Durham Courtroom #1 before MAG/JUDGE JOE L. WEBSTER. (Garrett, Kim) (Entered: 06/02/2014)
111 Proposed Exhibit List of Defendant by TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 06/06/2014)
112 Witness List by TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 06/06/2014)
113 Proposed Exhibit List by UNITED STATES OF AMERICA. (SONGER, MICHAEL) (Entered: 06/09/2014)
114 Witness List by UNITED STATES OF AMERICA. (SONGER, MICHAEL) (Entered: 06/09/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER in Winston−Salem: Hearing held on 6/13/2014 re 88 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA, 86 MOTION for Summary Judgment filed by TERRY S. JOHNSON, 102 MOTION for Trial Special Setting for Trial filed by UNITED STATES OF AMERICA. Attorneys Songer, Mygatt, Kitchen and Turrentine present. Arguments presented. Court advises trial will be in August, 2014 ( plan on 8/4/2014) and will decide if in need of Final Pretrial Hearing. Extension granted to 6/27/2014 to file trial briefs, etc. Written Order forthcoming. (Court Reporter Briana Nesbit.) (Powell, Gloria) (Entered: 06/13/2014)
Set/Reset Trial Brief deadline to 6/27/2014. (see 6/13/2014 Minute Entry) (Powell, Gloria) (Entered: 06/13/2014)
Minute Entry for proceedings held before MAG/JUDGE JOE L. WEBSTER: Settlement Conference held on 6/17/2014. Attorneys present for plaintiff, Michael Songer, Timothy MyGatt and Anika Gzifa and for defendant S.C. Kitchen and Karlene Turrentine. Parties reached an impasse. (Garrett, Kim) (Entered: 06/17/2014)
115 MOTION to Exclude Expert report and testimony from Dr. David Banks by UNITED STATES OF AMERICA. Responses due by 7/14/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (SONGER, MICHAEL) (Entered: 06/20/2014)
116 MOTION to Exclude Expert testimony from Mark Dockery by UNITED STATES OF AMERICA. Responses due by 7/14/2014. (Attachments: # 1 Exhibit A) (SONGER, MICHAEL) (Entered: 06/20/2014)
117 OBJECTION TO DEFENDANT'S 111 TRIAL EXHIBIT LIST filed by Plaintiff UNITED STATES OF AMERICA. (SONGER, MICHAEL) Modified on 6/25/2014 to edit text. (Lloyd, Donna) (Entered: 06/20/2014)
118 MEMORANDUM OPINION AND ORDER re: 86 MOTION for Summary Judgment filed by TERRY S. JOHNSON and 88 MOTION for Summary Judgment filed by the UNITED STATES OF AMERICA as set out herein. Signed by JUDGE THOMAS D. SCHROEDER on 6/20/2014. (Solomon, Dianne) . (Entered: 06/20/2014)
119 OBJECTION TO PLAINTIFF'S 113 TRIAL EXHIBIT LIST filed by Defendant TERRY S. JOHNSON. (KITCHEN, S.) Modified on 6/25/2014 to edit text. (Lloyd, Donna) (Entered: 06/22/2014)

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 14 of 23

06/24/2014
06/27/2014 06/27/2014 06/27/2014 06/29/2014 06/29/2014 07/03/2014 07/06/2014 07/06/2014 07/10/2014 07/11/2014 07/11/2014 07/13/2014 07/13/2014 07/14/2014

120 Transcript of Proceedings held on 6/13/2014, before Judge Thomas D.Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 7/18/2014. Redacted Transcript Deadline set for 7/28/2014. Release of Transcript Restriction set for 9/25/2014. (Nesbit, Brianna) (Entered: 06/24/2014)
121 Proposed Findings of Fact and Conclusions of Law by TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 06/27/2014)
122 TRIAL BRIEF by Defendant TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 06/27/2014)
123 Proposed Findings of Fact and Conclusions of Law by UNITED STATES OF AMERICA. (SONGER, MICHAEL) (Entered: 06/27/2014)
124 MOTION to Exclude Testimony by Undisclosed Witnesses by TERRY S. JOHNSON. Responses due by 7/24/2014. (KITCHEN, S.) (Entered: 06/29/2014)
125 BRIEF IN SUPPORT OF 124 MOTION to Exclude Testimony by Undisclosed Witnesses. (Attachments: # 1 Exhibit A −− Dep of Roselle) (KITCHEN, S.) Modified on 6/30/2014 to remove duplicate text. (Lloyd, Donna) (Entered: 06/29/2014)
126 NOTICE of Appearance by attorney ANIKA GZIFA on behalf of Plaintiff UNITED STATES OF AMERICA. (GZIFA, ANIKA) (Entered: 07/03/2014)
127 MOTION IN LIMINE TO EXCLUDE EXPERT REPORTS AND TESTIMONY BY DR. JOHN LAMBERTH filed TERRY S. JOHNSON. Responses due by 7/31/2014. (KITCHEN, S.) Modified on 7/7/2014 to edit text. (Lloyd, Donna) (Entered: 07/06/2014)
128 BRIEF IN SUPPORT OF 127 MOTION IN LIMINE TO EXCLUDE EXPERT REPORTS AND TESTIMONY BY DR. JOHN LAMBERTH. (Attachments: # 1 Exhibit A By the Numbers, # 2 Exhibit B Dep of Frasier) (KITCHEN, S.) Modified on 7/7/2014 to edit text. (Lloyd, Donna) (Entered: 07/06/2014)
129 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Plaintiff UNITED STATES OF AMERICA. TIMOTHY MYGATT is substituted as counsel for Plaintiff. Attorney AARON S. FLEISHER terminated. (MYGATT, TIMOTHY) (Entered: 07/10/2014)
130 NOTICE of Appearance by attorney JUDE VOLEK on behalf of Plaintiff UNITED STATES OF AMERICA. (VOLEK, JUDE) (Entered: 07/11/2014)
131 MOTION in Limine for Adverse Inference by UNITED STATES OF AMERICA. Responses due by 8/4/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (SONGER, MICHAEL) (Entered: 07/11/2014)
132 RESPONSE in Opposition re 116 MOTION to Exclude Expert testimony from Mark Dockery filed by TERRY S. JOHNSON. Replies due by 7/31/2014. (Attachments: # 1 Exhibit A − Disclosure of Dockery) (KITCHEN, S.) (Entered: 07/13/2014)
133 RESPONSE in Opposition re 115 MOTION to Exclude Expert report and testimony from Dr. David Banks filed by TERRY S. JOHNSON. Replies due by 7/31/2014. (KITCHEN, S.) (Entered: 07/13/2014)
134 NOTICE of Hearing: Status and Pretrial Conference and Hearing on all Pending Motions set for 8/8/2014 10:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 07/14/2014)

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 15 of 23

07/14/2014 07/18/2014 07/18/2014 07/18/2014 07/23/2014
07/25/2014
07/30/2014 07/30/2014 07/31/2014
08/03/2014 08/04/2014
08/04/2014 08/05/2014 08/07/2014

135 NOTICE of Rescheduling: Bench Trial reset for 8/12/2014 09:30 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 07/14/2014)
136 Consent MOTION FOR LEAVE TO AMEND ITS WITNESS LIST by UNITED STATES OF AMERICA. Responses due by 8/11/2014. (Attachments: # 1 Exhibit A) (GZIFA, ANIKA) Modified on 7/21/2014 to add text. (Lloyd, Donna) (Entered: 07/18/2014)
137 BRIEF IN SUPPORT OF 136 UNOPPOSED MOTION FOR LEAVE TO AMEND ITS WITNESS LIST. (GZIFA, ANIKA) (Entered: 07/18/2014)
138 RESPONSE TO DEFENDANT'S 124 MOTION TO EXCLUDE TESTIMONY BY UNDISCLOSED WITNESSES filed by UNITED STATES OF AMERICA. Replies due by 8/4/2014. (GZIFA, ANIKA) Modified on 7/21/2014 to edit text. (Lloyd, Donna) (Entered: 07/18/2014)
TEXT ORDER granting 136 Consent Motion for Leave to Amend its Witness List filed by the United States of America. Based on the representations to the court and for good cause shown, IT IS ORDERED that the motion is GRANTED, and the United States of America is GRANTED leave to amend its witness list. (See Exhibit A). IT IS FURTHER ORDERED that Defendant's motion to exclude testimony by undisclosed witnesses [Doc. 124] is DENIED as moot. Signed by JUDGE THOMAS D. SCHROEDER on 7/23/2014. (Solomon, Dianne) (Entered: 07/23/2014)
139 RESPONSE in Opposition re 131 MOTION in Limine for Adverse Inference filed by TERRY S. JOHNSON. Replies due by 8/11/2014. (Attachments: # 1 Affidavit Dec of Albright, # 2 Exhibit Ex A − Notice of Appearance of Albright, # 3 Exhibit Ex B − Notice of Appearance of Kitchen, # 4 Exhibit Ex C − Notice of Appearance of Kitchen, # 5 Exhibit Ex D − Trepel e−mail, # 6 Exhibit Ex E − Kitchen e−mail, # 7 Exhibit Ex F − Crotts e−mail)(KITCHEN, S.) (Entered: 07/25/2014)
140 REPLY, filed by Plaintiff UNITED STATES OF AMERICA, to Response to 116 MOTION to Exclude Expert testimony from Mark Dockery filed by UNITED STATES OF AMERICA. (VOLEK, JUDE) (Entered: 07/30/2014)
141 REPLY, filed by Plaintiff UNITED STATES OF AMERICA, to Response to 115 MOTION to Exclude Expert report and testimony from Dr. David Banks filed by UNITED STATES OF AMERICA. (SONGER, MICHAEL) (Entered: 07/30/2014)
142 RESPONSE filed by Plaintiff UNITED STATES OF AMERICA re 127 MOTION to Exclude Expert Reports and Testimony of Lamberth filed by TERRY S. JOHNSON filed by UNITED STATES OF AMERICA. Replies due by 8/18/2014. (Attachments: # 1 Exhibit A, # 2 Errata B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(SONGER, MICHAEL) (Entered: 07/31/2014)
143 REPLY, filed by Defendant TERRY S. JOHNSON, to Response to 127 MOTION to Exclude Expert Reports and Testimony of Lamberth filed by TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 08/03/2014)
Motions Submitted: 116 MOTION to Exclude Expert testimony from Mark Dockery, 127 MOTION to Exclude Expert Reports and Testimony of Lamberth, 115 MOTION to Exclude Expert report and testimony from Dr. David Banks, 131 MOTION in Limine for Adverse Inference to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 08/04/2014)
144 SURREPLY filed by Plaintiff UNITED STATES OF AMERICA re 127 MOTION to Exclude Expert Reports and Testimony of Lamberth filed by UNITED STATES OF AMERICA. (SONGER, MICHAEL) (Entered: 08/04/2014)
145 REPLY, filed by Plaintiff UNITED STATES OF AMERICA, to Response to 131 MOTION in Limine for Adverse Inference filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(VOLEK, JUDE) (Entered: 08/05/2014)
146 MOTION in Limine by UNITED STATES OF AMERICA. (Attachments: # 1 Supplement Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(VOLEK, JUDE) (Entered: 08/07/2014)

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08/08/2014 08/08/2014
08/12/2014
08/12/2014 08/13/2014 08/13/2014 08/14/2014 08/14/2014 08/15/2014

Motions Submitted: 146 MOTION in Limine to JUDGE THOMAS D. SCHROEDER− (Solomon, Dianne) (Entered: 08/08/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Motion Hearing held on 8/8/2014 re 116 MOTION to Exclude Expert testimony from Mark Dockery, 146 MOTION in Limine re: authentication of documents , 115 MOTION to Exclude Expert report and testimony from Dr. David Banks, and 131 MOTION in Limine for Adverse Inference filed by UNITED STATES OF AMERICA and 127 MOTION to Exclude Expert Reports and Testimony of Lamberth filed by TERRY S. JOHNSON. Attorneys Songer, Volek, Gzifa and Mygatt appeared on behalf of the Plaintiff and Attorneys Kitchen and Turrentine appeared on behalf of the Defendant. The motions regarding Drs. Banks and Lamberth will be held in abeyance until the time of trial. The motion related to Mark Dockery will be taken on a question by question basis during the trial. The motion for adverse inference was taken under advisement at the conclusion of the evidence (See Exhibit and Witness List). Defense entered a stipulation on the record related to the documents discussed n 146 Motion in Limine. Estimated length of trial and procedures discussed with the parties; Bench Trial set for Tuesday, August 12, 2014 09:30 AM in Winston−Salem, Courtroom No. 2. (Court Reporter Nesbit.) (Solomon, Dianne) . (Entered: 08/08/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Bench Trial (Day #1) held on 8/12/2014. Attorneys Songer, Mygatt, Gzifa and Volek appeared for the Government and Attorneys Kitchen and Turrentine appeared for the Defendant. Defendant was also present. The representation of Mr. Kitchen was again addressed on the record; Opening Statements made; Evidence presented (See Exhibit and Witness List); request for Governemnt witness to appear in person held, the court ruled that the witness is to appear pursuant to the subpoena issued. Use of certain demonstrative exhibits held on the record, the parties to work to resolve and advise the court. Bench trial continues 08/13/2014 09:00 AM in Winston−Salem, Courtrooom No. 2. (Court Reporter Nesbit.) (Solomon, Dianne) (Entered: 08/12/2014)
Set/Reset Deadlines/Hearings: Bench Trial continues on 8/13/2014 09:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 08/12/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Bench Trial (Day #2) held on 8/13/2014. Attorneys Songer, Mygatt, Gzifa, and Volek appeared for the Government. Attorneys Kitchen and Turrentine appeared for the Defendant. Motion to Strike Testimony of Dr. Lamberth taken under advisement. Bench Trial continues 8/14/2014 09:00 AM in Winston−Salem, Courtroom No. 2. (Court Reporter Nesbit.) (Solomon, Dianne) (Entered: 08/13/2014)
Set/Reset Deadlines/Hearings: Bench Trial continues on 8/14/2014 09:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 08/13/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Bench Trial (Day #3) held on 8/14/2014. Attorneys Songer, Mygatt, Gzifa, and Volek for the Government. Attorneys Kitchen and Turrentine for the Defendant. Evidence entered (See Exhibit and Witness List). Matter continued to 8/15/2014 09:00 AM in Winston−Salem, Courtroom No. 2. (Court Reporter Nesbit.) (Solomon, Dianne) (Entered: 08/14/2014)
Set/Reset Deadlines/Hearings: Bench Trial continues on 8/15/2014 09:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 08/14/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Bench Trial (Day #4) held on 8/15/2014. Attorneys Songer, Gzifa, Volek and Mygatt appeared for the Plaintiff. Attorneys Kitchen and Turrentine for the Defendant. Evidence presented (See Exhibit and Witness List); due to lack of availability, no additional witnesses called; pending motions, potential witnesses and length of case discussed; court to reconvene on Monday, August 18, 2014 09:00 AM in Winston−Salem, Courtroom No. 2. (Court Reporter Nesbit.) (Solomon, Dianne) (Entered: 08/15/2014)

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 17 of 23

08/15/2014 08/16/2014
08/17/2014
08/18/2014
08/18/2014 08/19/2014 08/19/2014 08/20/2014

Set/Reset Deadlines/Hearings: Bench Trial continues on Monday, 8/18/2014 09:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 08/15/2014)
147 Transcript of Proceedings held on 8/12/2014, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 9/11/2014. Redacted Transcript Deadline set for 9/19/2014. Release of Transcript Restriction set for 11/17/2014. (Nesbit, Brianna) (Main Document 147 replaced on 8/18/2014) (Contreras, Jamie). (Entered: 08/16/2014)
148 Transcript of Proceedings held on 8/13/2014, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 9/11/2014. Redacted Transcript Deadline set for 9/22/2014. Release of Transcript Restriction set for 11/20/2014. (Nesbit, Brianna) (Entered: 08/17/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Bench Trial (Day #5) held on 8/18/2014. Attorneys Songer, Volek, Mygatt and Gzifa appeared for the Government. Attorneys Kitchen and Turrentine appeared for the Defendant. Evidence presented (See Exhibit and Witness List); Defendant objected to testimony of a witness; the court allowed the testimony subject to later motion by the Defendant. Government rested its case at 4:27 PM; Rule 52(c) motion made by Defendant; the court commenced hearing Defendant's motion to strike the testimony of Dr. Lamberth; the court indicated that a ruling from the bench is unlikely in a case of this nature and that the hearings would continue on Tuesday, 8/19/2014 09:00 AM. The parties to discuss witness issues and to be prepared to discuss 287(g) and its involvement in the case. (Court Reporter Nesbit.) (Solomon, Dianne) Modified to edit text on 8/19/2014 (Solomon, Dianne). (Entered: 08/18/2014)
Set/Reset Deadlines/Hearings: Bench Trial continues on 8/19/2014 09:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 08/18/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Bench Trial (Day #6) held on 8/19/2014. Attorneys Songer, Volek, Gzifa and Mygatt for the Plaintiff. Attorneys Turrentine and Kitchen for the Defendant. Defendant's motion to strike the testimony of Dr. Lamberth and Rule 52(c) motion heard by the court and taken under advisement; Defendant presented evidence (See Exhibit and Witness List); Bench trial set for 8/20/2014 09:00 AM in Winston−Salem, Courtroom No. 2. (Court Reporter Nesbit.) (Solomon, Dianne) (Entered: 08/20/2014)
Set/Reset Deadlines/Hearings: Bench Trial continues on 8/20/2014 09:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 08/20/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Bench Trial (Day #7) held on 8/20/2014. Attorneys Songer, Volek, Gzifa and Mygatt present on behalf of the Plaintiff. Attorneys Turrentine and Kitchen present on behalf of the Defendant. Defendant continued to present evidence (See Exhibit and Witness List); Bench trial set for 8/21/2014 09:00 AM in Winston−Salem, Courtroom No. 2.

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 18 of 23

08/21/2014
08/21/2014 08/21/2014 08/22/2014 08/25/2014
08/26/2014

(Court Reporter Briana Nesbit.) (Welch, Kelly) (Entered: 08/20/2014)
149 Transcript of Proceedings held on 8/14/2014, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 9/15/2014. Redacted Transcript Deadline set for 9/25/2014. Release of Transcript Restriction set for 11/24/2014. (Nesbit, Brianna) (Entered: 08/21/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Bench Trial (Day #8) held on 8/21/2014. Attorneys Songer, Gzifa, Volek and Mygatt appeared for the Government. Attorneys Kitchen and Turrentine for the Defendant. Evidence presented (See Exhibit and Witness List); objection to Government's rebuttal exhibit made; Objection sustained for reasons stated on the record; Defense rested; Government presented Rebuttal evidence. Matter continues on 8/22/2014 09:00 AM in Winston−Salem, Courtroom No. 2. (Court Reporter Nesbit.) (Solomon, Dianne) (Entered: 08/22/2014)
Set/Reset Deadlines/Hearings: Bench Trial continues on 8/22/2014 09:00 AM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER. (Solomon, Dianne) (Entered: 08/22/2014)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Bench Trial (Day #9) completed on 8/22/2014. Attorneys Songer, Volek, Gzifa and Mygatt for the Government and Attorneys Kitchen and Turrentine for the Defendant. The Government completed rebuttal evidence and rested; Closing Arguments made including motions to strike the testimony of Drs. Banks and Lamberth and multiple witnesses; counsel to submit Proposed Findings of Fact and Conclusions of Law by 10/17/2014. The question of what inference the court should draw based on the evidence before it to be addressed. Written opinion forthcoming. (Court Reporter Nesbit.) (Solomon, Dianne) (Entered: 08/25/2014)
150 Transcript of Proceedings held on 8/15/2014, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 9/18/2014. Redacted Transcript Deadline set for 9/29/2014. Release of Transcript Restriction set for 11/28/2014. (Nesbit, Brianna) (Entered: 08/25/2014)
151 Transcript of Proceedings held on 8/18/2014, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 9/19/2014. Redacted Transcript Deadline set for 9/29/2014. Release of Transcript Restriction set for 11/28/2014. (Nesbit, Brianna) (Entered: 08/26/2014)

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08/26/2014 08/28/2014 08/29/2014 09/01/2014 09/18/2014

152 Transcript of Proceedings held on 8/19/2014, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 9/19/2014. Redacted Transcript Deadline set for 9/29/2014. Release of Transcript Restriction set for 11/28/2014. (Nesbit, Brianna) (Entered: 08/26/2014)
153 Transcript of Proceedings held on 8/20/2014, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 9/22/2014. Redacted Transcript Deadline set for 10/2/2014. Release of Transcript Restriction set for 12/1/2014. (Nesbit, Brianna) (Entered: 08/28/2014)
154 Transcript of Proceedings held on 8/21/2014, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 9/22/2014. Redacted Transcript Deadline set for 10/2/2014. Release of Transcript Restriction set for 12/1/2014. (Nesbit, Brianna) (Entered: 08/29/2014)
155 Transcript of Proceedings held on 8/22/2014, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 9/25/2014. Redacted Transcript Deadline set for 10/6/2014. Release of Transcript Restriction set for 12/4/2014. (Nesbit, Brianna) (Entered: 09/01/2014)
156 Transcript of Proceedings held on 8/8/2014, before Judge Thomas D.Schroeder. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 20 of 23

10/17/2014 10/17/2014 08/07/2015
08/07/2015
09/02/2015
09/02/2015 09/02/2015
09/15/2015 09/15/2015 09/16/2015 09/17/2015
09/17/2015 09/17/2015

obtained through PACER.<P> Redaction Request due 10/14/2014. Redacted Transcript Deadline set for 10/23/2014. Release of Transcript Restriction set for 12/22/2014. (Nesbit, Brianna) (Entered: 09/18/2014)
157 Proposed Findings of Fact and Conclusions of Law by TERRY S. JOHNSON.(KITCHEN, S.) (Entered: 10/17/2014)
158 Proposed Findings of Fact and Conclusions of Law by UNITED STATES OF AMERICA.(SONGER, MICHAEL) (Entered: 10/17/2014)
159 MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 08/07/2015. IT IS ORDERED that the claims of the United states be DENIED. The judgment entered for Defendant Sheriff Johnson, and the Complaint 1 be DISMISSED WITH PREJUDICE. Any request for costs must be filed within thirty (30) days. A judgment in conformance with this Order will be entered simultaneously. (Coyne, Michelle) (Entered: 08/07/2015)
160 JUDGMENT Signed by JUDGE THOMAS D. SCHROEDER on 08/07/2015. IT IS ORDERED AND ADJUDGED that the claims of the United States be DENIED. The Judgment entered for Defendant Sheriff Johnson, and that the complaint 1 be DISMISSED WITH PREJUDICE. As per the Memorandum Opinion and Order entered on this date, any request for costs must be filed within thirty (30) days. (Coyne, Michelle) (Entered: 08/07/2015)
161 MOTION for Attorney Fees EAJA by TERRY S. JOHNSON. Responses due by 9/28/2015 (Attachments: # 1 Affidavit Johnson, # 2 Affidavit Roberts, # 3 Affidavit Turrentine, # 4 Exhibit Billing of Turrentine, # 5 Exhibit Paralegal Billing, # 6 Affidavit Kitchen, # 7 Exhibit billing of Kitchen, # 8 Exhibit Banks Invoices, # 9 Exhibit Heard Invoices, # 10 Affidavit Pierce, # 11 Exhibit Statement of Consultation)(KITCHEN, S.) (Entered: 09/02/2015)
162 BRIEF re 161 MOTION for Attorney Fees EAJA . (Attachments: # 1 Exhibit Internal Controls Article)(KITCHEN, S.) (Entered: 09/02/2015)
163 BILL OF COSTS by Defendant TERRY S. JOHNSON. Objection to Bill of Costs due by 9/21/2015. (Attachments: # 1 Exhibit Explanation of Transcript Cost, # 2 Exhibit Transcript and Witness Fees, # 3 Exhibit Transcript Bill for Graham Erlacher, # 4 Exhibit Bills for Pace Reporting, # 5 Exhibit Bills for Nesbit Reporting, # 6 Exhibit Bills for Powell Reporting, # 7 Exhibit Subpoenas showing witness fees, # 8 Exhibit Explanation of Interpreter Fees, # 9 Exhibit Summary of Interpreter Fees, # 10 Exhibit Interpreter Invoices, # 11 Affidavit Bruce Walker − Exemplification costs)(KITCHEN, S.) (Entered: 09/02/2015)
164 MOTION to Stay Defendant's Motions for Fees and Costs by UNITED STATES OF AMERICA. Responses due by 10/9/2015 (SONGER, MICHAEL) (Entered: 09/15/2015)
165 MOTION to Expedite Consideration of the United States' Motion for Stay by UNITED STATES OF AMERICA. (SONGER, MICHAEL) (Entered: 09/15/2015)
Motion Submitted to JUDGE THOMAS D. SCHROEDER: 165 MOTION to Expedite Consideration of the United States' Motion for Stay. (Engle, Anita) (Entered: 09/16/2015)
166 ORDER signed by JUDGE THOMAS D. SCHROEDER on 09/16/2015; that the motion to expedite (Doc. 165 ) is GRANTED, and Defendant shall file any response to the United States' motion to stay (Doc. 164 ) by noon on Friday, September 18, 2015, and that the United States shall file any reply by noon on Saturday, September 19, 2015. The previous deadline of September 21 for the United States' bill of costs is extended to and through Tuesday September 22, 2015, so the court can timely consider the motion to stay. (Garland, Leah) (Entered: 09/17/2015)
Reset Response/Reply Deadline re: 164 MOTION to Stay Defendant's Motions for Fees and Costs: Defendant's Responses due by noon 9/18/2015. United States Reply due by noon 9/19/2015. (Garland, Leah) (Entered: 09/17/2015)
Reset Deadline: Objection to Bill of Costs due by 9/22/2015. (See 166 Order) (Garland, Leah) (Entered: 09/17/2015)

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 21 of 23

09/17/2015 09/19/2015 09/21/2015 09/21/2015 09/21/2015
09/21/2015
09/21/2015 10/02/2015 10/05/2015 10/07/2015 10/16/2015 10/20/2015 10/22/2015 10/23/2015
10/28/2015 10/28/2015 11/04/2015

167 RESPONSE in Opposition re 164 MOTION to Stay Defendant's Motions for Fees and Costs filed by TERRY S. JOHNSON. Replies due by 9/19/2015. (KITCHEN, S.) (Entered: 09/17/2015)
168 REPLY, filed by Plaintiff UNITED STATES OF AMERICA, to Response to 164 MOTION to Stay Defendant's Motions for Fees and Costs filed by UNITED STATES OF AMERICA. (SONGER, MICHAEL) (Entered: 09/19/2015)
Motion Submitted to JUDGE THOMAS D. SCHROEDER: 164 MOTION to Stay Defendant's Motions for Fees and Costs. (Engle, Anita) (Entered: 09/21/2015)
Set Hearing: Telephone Conference set for 9/21/2015 at 04:00 PM in Winston−Salem Courtroom #2 before JUDGE THOMAS D. SCHROEDER on 164 MOTION to Stay Defendant's Motions for Fees and Costs. (Engle, Anita) (Entered: 09/21/2015)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Telephone Conference held on 9/21/2015 on 164 MOTION to Stay Defendant's Motions for Fees and Costs. (Court Reporter Briana Nesbit.) (Engle, Anita) (Entered: 09/21/2015)
169 ORDER granting in part 164 Motion to Stay Defendant's Motions for Fees and Costs. Time to respond to Defendants cost petition and motion for attorneys fees is STAYED until 10/13/2015. The court resets the deadlines for Plaintiffs Objection to Bill of Costs to 10/16/2015, and Plaintiffs Response to Defendants Motion for Attorney Fees to 10/22/2015. Signed by JUDGE THOMAS D. SCHROEDER on 9/21/2015. (Engle, Anita) (Entered: 09/21/2015)
Reset Deadlines: Plaintiffs Objection to 163 Bill of Costs due 10/16/2015 and Plaintiffs Response to 161 Defendants Motion for Attorney Fees due 10/22/2015. (Engle, Anita) (Entered: 09/21/2015)
170 NOTICE OF APPEAL as to 160 Judgment, 159 Memorandum and Opinion, Order,, by UNITED STATES OF AMERICA. (Attachments: # 1 Final Judgment, # 2 Memorandum Opinion)(SONGER, MICHAEL) (Entered: 10/02/2015)
171 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 170 Notice of Appeal as to 160 Judgment, 159 Memorandum and Opinion, Order. (Coyne, Michelle) (Entered: 10/05/2015)
172 NOTICE of Docketing Appeal from USCA re 170 Notice of Appeal filed by UNITED STATES OF AMERICA. USCA Case Number 15−2190. USCA Case Manager: T. Fischer. (Coyne, Michelle) (Entered: 10/07/2015)
173 RESPONSE re 163 Bill of Costs,, filed by UNITED STATES OF AMERICA. Replies due by 11/2/2015. (SONGER, MICHAEL) (Entered: 10/16/2015)
174 RESPONSE by Defendant TERRY S. JOHNSON re 163 Bill of Costs,, . (KITCHEN, S.) (Entered: 10/20/2015)
175 RESPONSE in Opposition re 161 MOTION for Attorney Fees EAJA filed by UNITED STATES OF AMERICA. Replies due by 11/9/2015. (Attachments: # 1 Exhibit A)(SONGER, MICHAEL) (Entered: 10/22/2015)
ORDER Staying Clerk's Consideration of 163 Bill of Costs. The Clerk will delay consideration of the Bill of Costs pending resolution of the 170 Notice of Appeal filed 10/2/2015. As a matter of practice, the Clerk in the Middle District of North Carolina stays consideration of all bill of costs pending appeal. Signed by John Brubaker, Clerk of Court, on 10/23/2015. (Brubaker, John) (Entered: 10/23/2015)
176 MOTION re Order, Staying Consideration of Bill of Costs by TERRY S. JOHNSON. Responses due by 11/23/2015 (KITCHEN, S.) (Entered: 10/28/2015)
177 Defendant's BRIEF re Order, Staying Consideration of Bill of Costs. (KITCHEN, S.) (Entered: 10/28/2015)
178 REPLY, filed by Defendant TERRY S. JOHNSON, to Response to 161 MOTION for Attorney Fees EAJA filed by TERRY S. JOHNSON. (KITCHEN, S.) (Entered: 11/04/2015)

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 22 of 23

11/06/2015 11/17/2015 11/17/2015 12/08/2015
01/12/2016 08/19/2016 05/25/2018 06/13/2018

179 RESPONSE in Opposition re 176 MOTION re Order, Staying Consideration of Bill of Costs filed by UNITED STATES OF AMERICA. Replies due by 11/23/2015. (SONGER, MICHAEL) (Entered: 11/06/2015)
Telephonic Notice From Attorney Kitchen on 11/17/2015. Defendant does not plan to file a Reply to 179 United States' Response to 176 Motion re Order Staying Consideration of Bill of Costs. (Engle, Anita) (Entered: 11/17/2015)
Motions Submitted to JUDGE THOMAS D. SCHROEDER: 176 MOTION re Order Staying Consideration of Bill of Costs and 161 MOTION for Attorney Fees under EAJA. (Engle, Anita) (Entered: 11/17/2015)
180 MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 12/8/2015. Government's 164 motion to stay Defendant's petition for fees and costs is DENIED; Clerk's order staying consideration of bill of costs is LIFTED, Defendant's 161 motion for costs is GRANTED, and Defendant awarded $23,297.20 in costs; Defendant's 161 motion for attorney fees is DENIED.(Powell, Gloria) (Entered: 12/08/2015)
181 ORDER re 170 Notice of Appeal filed by UNITED STATES OF AMERICA. The court grants the motion to withdraw from further representation on appeal. USCA Case No.: 15−2190. (Coyne, Michelle) (Entered: 01/13/2016)
182 MANDATE of USCA as to 170 Notice of Appeal filed by UNITED STATES OF AMERICA. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (Coyne, Michelle) (Entered: 08/19/2016)
183 Exhibit Letter to Parties regarding Trial Exhibits Pursuant to Local Rule 79.4. (Engle, Anita) (Entered: 05/25/2018)
EXHIBITS from Bench Trial held 8/12/2014 − 8/22/2014 Destroyed Pursuant to to LR 79.4(c) and Letter filed 5/25/2018.(Engle, Anita) (Entered: 06/13/2018)

Case: 1:12-cv-1349 document<docnum> filed <datefiled> 23 of 23

 
 Justice Department Releases Investigative Findings on the Alamance County, N.C., Sheriff’s Office | OPA | Department of Justice

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Justice Department Releases Investigative Findings on the Alamance County, N.C., Sheriff’s Office
Findings Show Pattern or Practice of Discriminatory Policing Against Latinos
Following a comprehensive investigation, the Justice Department announced today its findings that the Alamance County Sheriff’s Office (ACSO) in North Carolina, under the leadership of Sheriff Terry S. Johnson, engages in a pattern or practice of misconduct that violates the Constitution and federal law. The department conducted its investigation, which it opened on June 2, 2010, pursuant to the Violent Crime Control and Law Enforcement Act of 1994 and Title VI of the Civil Rights Act of 1964 (Title VI).
The Justice Department finds reasonable cause to believe that ACSO engages in a pattern or practice of discriminatory policing against Latinos in violation of the Equal Protection Clause of the Fourteenth Amendment, the Fourth Amendment, the Violent Crime Control and Law Enforcement Act and Title VI. ACSO’s discriminatory policing activities include:
ACSO deputies target Latino drivers for traffic stops; A study of ACSO’s traffic stops on three major county roadways found that deputies were between four and 10 times more likely to stop Latino drivers than non-Latino drivers; ACSO deputies routinely locate checkpoints just outside Latino neighborhoods, forcing residents to endure police checks when entering or leaving their communities; ACSO practices at vehicle checkpoints often vary based on a driver’s ethnicity. Deputies insist on examining identification of Latino drivers, while allowing drivers of other ethnicities to pass through without showing identification; ACSO deputies arrest Latinos for minor traffic violations while issuing citations or warnings to non-Latinos for the same violations; ACSO uses jail booking and detention practices, including practices related to immigration status checks, that discriminate against Latinos; The sheriff and ACSO’s leadership explicitly instruct deputies to target Latinos with discriminatory traffic stops and other enforcement activities;

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Justice Department Releases Investigative Findings on the Alamance County, N.C., Sheriff’s Office | OPA | Department of Justice

The sheriff and ACSO leadership foster a culture of bias by using anti-Latino epithets; and ACSO engages in substandard reporting and monitoring practices that mask its discriminatory conduct.
Taken together, these practices undermine ACSO’s ability to serve and protect Alamance County’s Latino residents and the community at large.

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“The Alamance County Sheriff’s Office’s egregious pattern of racial profiling violates the Constitution and federal laws, creates distrust between the police and the community and inhibits the reporting of crime and cooperation in criminal investigations,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “Constitutional policing and effective law enforcement go hand-in-hand. We hope to resolve the concerns outlined in our findings by working collaboratively with ACSO, but we will not hesitate to take appropriate legal action if ACSO chooses a different course.”

The Justice Department’s thorough and independent investigation included an in-depth review of ACSO policies, procedures, training materials, and data on traffic stops, arrests, citations, vehicle checkpoints and other documentary evidence. Department personnel also conducted interviews with more than 125 individuals, including Alamance County residents and current and former ACSO employees.

Addressing these findings and creating sustainable reforms will require ACSO to commit to long term structural, cultural and institutional change. In particular, ACSO must develop and implement new policies, procedures and training in effective and constitutional policing. Any reform efforts must also include systems of accountability to ensure that ACSO has eliminated unlawful bias from its decision making at all levels.

The department will seek to obtain a court enforceable, comprehensive, written agreement remedying the violations and incorporating these reforms by attempting to work with ACSO officials.

The Special Litigation Section of the Civil Rights Division conducted this investigation with the assistance of consultants in law enforcement and statistical analysis. Members of the Alamance County community who wish to provide information to the department may call 1-877-871-9726 or email alamance.info@usdoj.gov . For more information on the Justice Department’s Civil Rights Division, please visit www.justice.gov/crt .
Related Materials:
Letter of Findings

12-1125

Civil Rights Division Updated October 8, 2014

https://www.justice.gov/opa/pr/justice-department-releases-investigative-findings-alamance-county-nc-sheriff-s-office[8/17/2016 1:52:06 PM]

 
 Justice Department Files Civil Rights Lawsuit Against the Alamance County, N.C., Sheriff’s Office | OPA | Department of Justice

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Justice Department Files Civil Rights Lawsuit Against the Alamance County, N.C., Sheriff’s Office
Complaint Alleges Pattern or Practice of Discriminatory Policing Against Latinos
The Justice Department today filed a civil rights lawsuit against Terry S. Johnson, in his official capacity as head of the Alamance County Sheriff’s Office (ACSO) in North Carolina. The complaint alleges that ACSO routinely discriminates against and targets Latinos for enforcement action, in violation of the U.S. Constitution and Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994.
The lawsuit follows a comprehensive investigation of ACSO’s police practices. The department’s investigation included interviews with over 125 individuals, a review of ACSO policies, procedures, training materials and analysis of data on traffic stops, arrests, citations, vehicle checkpoints, and other documentary evidence. On Sept. 18, 2012, the department issued a formal findings letter detailing ACSO’s discriminatory policing practices and inviting ACSO to negotiate a courtenforceable agreement to remedy the violations found. ACSO declined to enter into meaningful settlement negotiations.
The complaint alleges that ACSO engages in a pattern or practice of discriminatory policing against Latinos in violation of the Equal Protection Clause of the Fourteenth Amendment, the Fourth Amendment and the Violent Crime Control and Law Enforcement Act. The complaint alleges that ACSO’s discriminatory policing activities include:
·          ACSO deputies unlawfully target Latino drivers for traffic stops:

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Justice Department Files Civil Rights Lawsuit Against the Alamance County, N.C., Sheriff’s Office | OPA | Department of Justice

o    A study of ACSO’s traffic stops on three major county roadways found that deputies were between four and 10 times more likely to stop Latino drivers than non-Latino drivers;
o    ACSO deputies arrest Latinos for minor traffic violations while issuing citations or warnings to non-Latinos for comparable violations;

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o    ACSO deputies use vehicle checkpoints in a discriminatory manner to target Latinos.

·          ACSO uses jail booking and detention practices, including practices related to immigration
status checks, that discriminate against Latinos.
The complaint further alleges that these discriminatory practices are deeply rooted in a culture that begins with Sheriff Johnson and permeates the entire agency. For example:
·          The sheriff and ACSO’s leadership explicitly instruct deputies to target Latinos with
discriminatory traffic stops and other enforcement activities;
·          The sheriff and ACSO leadership foster a culture of bias by using anti-Latino epithets; and
·          ACSO engages in substandard reporting and monitoring practices that mask its
discriminatory conduct.
Taken together, these practices violate the constitutional and federal rights of Latinos in Alamance County and undermine ACSO’s ability to serve and protect Alamance County’s Latino residents and the community at large.
“This is an abuse of power case involving a sheriff who misuses his position of authority to unlawfully target Latinos in Alamance County,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “Sheriff Johnson’s directives and leadership have caused ACSO to violate the constitutional rights of Latinos in Alamance County and eroded public trust in ACSO.”
In this lawsuit, the Justice Department seeks a court enforceable, comprehensive, written agreement that will ensure long term structural, cultural and institutional change at ACSO. In particular, ACSO must develop and implement new policies, procedures and training in effective and constitutional policing. Any reform efforts must also include systems of accountability to ensure that ACSO has eliminated unlawful bias from its decision making at all levels.
https://www.justice.gov/opa/pr/justice-department-files-civil-rights-lawsuit-against-alamance-county-nc-sheriff-s-office[8/17/2016 1:57:54 PM]

Justice Department Files Civil Rights Lawsuit Against the Alamance County, N.C., Sheriff’s Office | OPA | Department of Justice

Members of the Alamance County community who wish to provide information to the Department may call 1-877-871-9726 or email alamance.info@usdoj.gov . For more information on the Justice Department’s Civil Rights Division, please visit www.justice.gov.crt .
Related Materials:
ACSO Complaint

12-1534

Civil Rights Division Updated October 8, 2014

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 Justice Department Files Lawsuit Against the Alamance County, North Carolina, Sheriff’s Office | OPA | Department of Justice

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Justice Department Files Lawsuit Against the Alamance County, North Carolina, Sheriff’s Office
Justice Department Seeks Judicial Declaration to Permit Interviews of Sheriff’s Office Personnel
WASHINGTON– The Justice Department filed a lawsuit today against the Alamance County Sheriff’s Office (ACSO), Alamance County and Alamance County Sheriff Terry Johnson seeking a judicial declaration that department attorneys may interview particular ACSO personnel outside the presence of ACSO’s counsel. The relevant North Carolina rule of professional conduct permits department attorneys to interview current non-command staff and all former ACSO employees outside the presence of ACSO’s counsel.
The Department of Justice is currently investigating allegations that ACSO, Alamance County and Sheriff Terry Johnson have engaged in discriminatory policing and unconstitutional searches and seizures. In the complaint, the department alleges that numerous current and former ACSO personnel are fearful that if they cooperate with the United States' investigation, they may be subject to retaliation. Therefore, the department’s ability to conduct interviews outside the presence of ACSO’s counsel is necessary to ensure that former and current employees feel free to openly share information with the government concerning ACSO practices.
“It is unfortunate that the department was forced to resort to litigation when the applicable ethical rules are so clear in this instance,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “A judicial decision will allow the department to move forward with the investigation.”
The department filed today’s lawsuit after exhausting all cooperative measures to negotiate access

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Justice Department Files Lawsuit Against the Alamance County, North Carolina, Sheriff’s Office | OPA | Department of Justice

to the interviews with ACSO. The department has attempted to secure voluntary compliance with its investigation since July 2010.

The department’s investigation remains open and ongoing. For more information on the Justice Department’s Civil Rights Division, please visit www.justice.gov/crt

11-830

Civil Rights Division Updated September 15, 2014

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 AGREEMENT BETWEEN THE UNITED STATES AND 
 ALAMANCE COUNTY SHEIDFF TERRY JOHNSON 

1 


UNITED STATES OF AMERICA,
Plaintiff v.
ALAMANCE COUNTY SHERIFF TERRY JOHNSON,
Defendant
SETTLEMENT AGREEMENT 

I. Introduction
The United States of America and Sheriff Terry Johnson of Alamance County (collectively, "the Parties") enter into this agreement ("Agreement") to further their mutual goal of ensuring that the people of Alamance County are served effectively and in compliance with the Constitution and laws of the United States and State of North Carolina.
The Parties have reached this accord in response to the district court's judgment in favor of Sheriff Johnson in United States v. Johnson, No.1 :12-cv-1349 (M.D.N.C. Aug. 7,2015). The United States issued a findings letter on September 18,2012, alleging that the Alamance County Sheriff s Office had engaged in a pattern and practice of discriminatory law enforcement activities in violation of the United States Constitution, and the United States made the same allegations in the complaint that it filed against Sheriff Johnson in December 2012. After a two­ week trial, the district court dismissed the United States' lawsuit, holding that the Alamance County Sheriffs Office's "law enforcement practices do not constitute an unlawful 'pattern or practice' of constitutional deprivations in violation of federal law." United States v. Johnson, 2015 WL 4715312, at *94. Although the United States filed a notice of appeal of the district court's decision, the United States agrees as part of this settlement to dismiss the appeal, and to accept the district court's judgment. The United States further agrees that, in light of the district court's judgment and this settlement agreement, the allegations in the United States' Findings Letter and complaint do not provide a basis for denying to the Alamance County Sheriff s Office any federal financial assistance to which it may otherwise be entitled.
II. The ACSO Bias-Free Initiative
The Alamance County Sheriffs Office ("ACSO" or the "agency") agrees to undertake a new Bias-Free Initiative to demonstrate its ongoing commitment to bias-free policing. The components of this Bias-Free Initiative are:
2 


1. Bias-Free Policing Policy: The ACSO will adopt and implement the bias-free policing policy (the "Bias-Free Policing Policy") that is attached to this Agreement as Exhibit A. Allegations of bias-based profiling or discriminatory practices, real or perceived, critically injure the relationship between the ACSO and the community it is entrusted to protect and serve. The ACSO does not endorse, train, teach, support, or condone any type of bias, stereotyping, or racial, cultural/ethnic, and gender profiling by its members. The ACSO has an obligation and is committed to identifying and eliminating any instances of bias-based policing in all areas. ACSO leadership and supervising officers will continue to unequivocally and consistently reinforce to subordinates that such biased policing is unacceptable.
2. Complaint Policy: The ACSO will implement a revised policy on intake and investigation of complaints related to the ACSO's policing activities. The revised complaint policy (the "Revised Complaint Policy") is attached as Exhibit B. The Revised Complaint Policy enumerates specific investigative procedures and documentation requirements for investigating complaints of biased policing. After a complaint is received, the individual conducting the investigation should conduct as necessary the following investigatory steps: (a) interview the complainant (unless the complaint is filed anonymously) and any witnesses; (b) interview the officer(s) involved; (c) gather and review any relevant evidence, including CAD reports, traffic stop reports, C-COM recordings, and video evidence; and (d) document the interviews and analysis of the evidence and explain the reasoning for the Complaint Finding (Exonerated, Sustained, Unfounded, Unresolved). The Revised Complaint Policy also defines the categories of complaints subject to these procedures to ensure that all complaints of activity that may possibly involve bias will be thoroughly investigated using these procedures. These categories include, for example, allegations of civil rights violations, violations of the Bias-Free Policing Policy, use of derogatory language or racial/ethnic slurs, or a traffic enforcement action that was taken without a valid basis.
3. Data Collection and Analysis:
A. The ACSO will continue to collect and analyze data on its traffic enforcement operations. The ACSO will continue to use the North Carolina Traffic Stop Form, attached as Exhibit C, to collect information about each person stopped by ACSO deputies. This information includes the race, gender, and ethnicity of each person stopped; the reason for the stop; whether ACSO deputies issued a traffic citation, made an arrest, or took other enforcement action during the stop; whether ACSO deputies conducted a search during the stop; and whether any contraband was found during such a search. The ACSO will continue to post summary information from these stop records on its website on a monthly basis and provide all required information to the North Carolina State Bureau of Investigation.
B. The ACSO will continue to collect information utilizing the Checking Station Authorization Form, attached as Exhibit D, to record the location, authorizing official, and purpose of each checkpoint the agency conducts. All stops of
3

individual vehicles during checkpoints will be recorded on the North Carolina Traffic Stop Form, which will indicate that the stop was made at a vehicle checkpoint.
C. As part of this Agreement, Sheriff Johnson will extend the ACSO's current internal quantitative review practices and will incorporate such extensions into his Bias-Free Initiative. Specifically, the ACSO will analyze data on deputies' stops, searches, and arrests by: (1) tracking stops and searches by ethnicity at the individual deputy level; (2) matching deputies by area and/or duty assignment to compare the activities of deputies with similar assignments; and (3) comparing deputy behavior within area and/or duty assignment to identify possible disparities or outliers. Where any potential disparities or outliers are identified, the ACSO will conduct further analysis and investigation, including a comprehensive review of a deputy's policing activities. This method of internal benchmarking serves as a starting point for inquiry and possible intervention and does not conclusively establish that any noted disparity in deputy behavior is the result of bias.
D. Where this review determines that bias may impact particular actions, the ACSO leadership will take appropriate corrective action, including the disciplinary actions available under Section YeA) of the Revised Complaint Policy.
E. In addition to conducting proactive internal analysis of ACSO's own data, Sheriff Johnson will provide raw data on the ACSO's traffic enforcement activities to the U.S. Department of Justice ("DOJ"). The data available to DOJ will include:
a. Native data for all fields shown on the North Carolina Traffic Stop Form;
b. The following data on complaints filed against ACSO deputies:
1. The annual statistical summary, required by Section VII of the ACSO's Revised Complaint Policy, that aggregates all complaints made against the ACSO;
ii. The total number of civil rights complaints per officer, as defined by Section I.B(8) of the Revised Complaint Policy;
111. The total number of civil rights complaints sustained and not sustained;
IV. The total number of civil rights complaints that were "Immediately resolved" and "Forwarded to Chief Deputy for assignment," as specified in the Revised Complaint Policy; and
v. Anonymized data from complaint forms relating to civil rights complaints (as defined by Section I.B(8) of the Revised Complaint
4

Policy) filed against ACSO deputies. This data will be provided in accordance with N.C. Gen. Stat. l53A-98(c)(5) (2015).
c. The ACSO will provide the above data to the United States upon request, up to two times per year.
4. Access for the Spanish Speaking Community: The ACSO will implement procedures to ensure that all community members continue to be able to file complaints with the agency and that such complaints are investigated and tracked effectively. Specifically, theACSO will create and maintain a Spanish-language web presence and will post a Spanish-language version of its Citizen Complaint Form on its website. The ACSO will allow for complaints to be submitted in person, via email, or on the agency's website. In addition, the ACSO will produce a brochure in both English and Spanish explaining how to complete and file the Citizen Complaint Form. The ACSO will make the brochure available on its website in both English and Spanish.
III. Training
A. The ACSO will fully train all employees - including patrol deputies, detention officers, and deputies assigned to any specialized units - on the agency's Bias­ Free Initiative. This shall include training on the Bias-Free Policing Policy and the Revised Complaint Policy.
B. Within 30 days of the Parties executing this Agreement, Sheriff Johnson will implement the Bias-Free Initiative and distribute the Bias-Free Policing Policy and the Revised Complaint Policy to all ACSO personnel. All current ACSO personnel will be trained on these policies and procedures within 90 days of the execution of this Agreement. All new employees hired by the ACSO - including officers hired on a part-time or reserve basis - will be trained on these policies and procedures within 60 days of beginning work at the ACSO.
IV. Federal Financial Assistance
The United States further agrees that, in light of the district court's judgment and this settlement agreement, the allegations in the United States' Findings Letter and complaint do not provide a basis for denying to the Alamance County Sheriff s Office any federal financial assistance to which it may otherwise be entitled.
5 


V. Implementation
A. The ACSO will designate a point of contact for its Bias-Free Initiative who will respond to all inquiries from the United States related to the Initiative and requests for documents, data, or other access.
B. This Agreement will last for five (5) years from the date it is finalized and signed by all Parties and shall immediately terminate at the expiration of five (5) years without need for further action by the parties.
C. Upon execution of this Agreement, the United States affirms that the Findings Letter and the complaint in this case will not provide a basis for denying applications from the Alamance County Sheriffs Office for federal financial assistance. The Civil Rights Division of the Department of Justice will coordinate with other federal agencies to ensure they understand that the Findings Letter and judgment do not provide a basis for denying the ACSO any federal financial assistance to which it may otherwise be entitled.
D. Each party will bear its own costs, fees, and expenses associated with the appeal and any remaining matters in the district court concerning this action, United States v. Alamance County Sheriff Terry Johnson, No. 15-2190 (4th Cir.) and No. 1: 12-cv-1349 (M.D.N.C.). The United States shall promptly move to pay the court costs awarded by the district court in United States v. Johnson, No.1: 12-cv­ 1349 (M.D.N.C.) in its order dated December 8, 2015.
E. The Civil Rights Division will post on the Division's website the district court's opinion in this matter, United States v. Johnson, 2015 WL 4715312, as well as this Agreement.
F. This Agreement constitutes the entire agreement between the Parties, and it supersedes any and all prior representations and agreements, whether oral or written, between the Parties regarding the claims in this case. No such prior representations or agreements may be offered or considered to vary the terms of this Agreement, or to determine the meaning of any of its provisions.
G. In the event that any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding will not affect the remaining provisions of this Agreement.
H. If a Party determines that the other Party is not in compliance with the Agreement in any respect, the Party will notify the other party of the alleged non-compliance. Any notification of alleged non-compliance will be in writing and will identify the specific non-compliance and the factual basis for any alleged non-compliance. The Parties will first attempt to resolve any dispute informally by notification and conferral. If the Parties are unable to agree on a resolution of the dispute concerning the alleged non-compliance within 60 days after initial conferral, the
6

Party alleging non-compliance may, without further notice to the other Party, seek enforcement of this Agreement with the United States District Court for the Middle District of North Carolina through any appropriate form of relief. Any motion or action to enforce this Agreement will be brought within one year of the occurrence of any alleged non-compliance.

I. The Settlement Agreement is binding upon all Parties hereto, by and through their officials, agents, employees, and successors. The Settlement Agreement is enforceable only by the Parties. No person or entity is intended to be a third-party beneficiary of the provisions of the Settlement Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under the Settlement Agreement.

1. The Settlement Agreement is not intended to impair or expand the right of any person or organization seeking relief against the United States of America, the ACSO, or any officer or employee thereof, for their conduct or the conduct of any employee. Accordingly, it does not alter legal standards governing any such claims by third parties, including those arising from state or federal law. The Settlement Agreement does not expand, nor will it be construed to expand, access to any of the Parties' documents, except as expressly provided by the Settlement Agreement, by persons or entities other than the Parties. All federal and state laws governing the confidentiality or public access to such documents are unaffected by the terms of the Settlement Agreement.

K. The Patiies agree to defend the provisions of the Settlement Agreement. The Parties will notify each other of any court or administrative challenge to the Settlement Agreement. In the event any provision of the Settlement Agreement is challenged in any state, county or municipal court, removal to the federal court in the Middle District of North Carolina will be sought by the Parties.

L. The Parties agree that, as of the date of entry ofthis Agreement, litigation is not "reasonably foreseeable" concerning the matters described in this Agreement. To the extent that either Party previously implemented a litigation hold to preserve documents, electronically stored information, or things related to the matters described in this Agreement, the Party is no longer required to maintain such a litigation hold. Nothing in this paragraph relieves any Party of any other obligations imposed by this Agreement, including the document creation and retention requirements described herein.

J Executed

this

~~\(jay

~
of V ...-;- 2016

7 


For the UNITED STATES OF AMERICA:

For TERRY S. JOHNSON, IN HIS OFFICIAL CAPACITY AS SHERIFF OF ALAMANCE COUNTY, ON BEHALF OF THE ALAMANCE COUNTY SHERIFF'S OFFICE

STEVEN H. ROSENBAUM Chief Special Litigation Section
Timothy D. Mygatt, Deputy Chief Michael 1. Songer, Attorney United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel. (202) 514-6255 Fax. (202) 514-4883

8 


Exhibit A 

ALAMANCE COUNTY SHERIFF'S OFFICE (ACSO) 
 BIAS-FREE POLICING POLICY 

I. PURPOSE 

A. The purpose of this directive is to set forth the policies and procedures of the ACSO regarding the ACSO's prohibition against any form of discriminatory practices, particularly as it relates to all forms of bias-based policing.
II. POLICY
A. The ACSO is committed to protecting the constitutional and civil rights of all persons.
B. It is the policy of the ACSO to prohibit all police practices involving profiling or other biased-based decisions. No ACSO officer or employee may take an enforcement action based upon any common trait shared by any group of people, which is not in itself indicative of criminal activity. Violations of this policy shall result in disciplinary action up to and including dismissal from the department.
III. DEFINITIONS OF TERMS
A. Bias-Based Policing: The intentional selection of individuals for detention, interdiction or other disparate treatment based on a common trait of a group that includes, but is not limited to, race, ethnic background, gender, sexual orientation, religion, age, cultural group, or any other identifiable characteristic that is a prohibited basis for disparate treatment.
B. Bias-Based Profiling: The practice of detaining or stopping a suspect based on a broad set of criteria, which casts suspicion on an entire class of people without any individualized suspicion of the particular person being stopped.
C. Suspect Specific Incident: An incident in which an ACSO deputy is lawfully attempting to detain, apprehend, or otherwise be on the lookout for one or more specific suspects who have been identified or described in part by race, ethnic background, gender, sexual orientation, religion, age, cultural group, or any other identifiable characteristic.
IV. GENERAL CONSIDERATIONS AND GUIDELINES
A. The ACSO does not condone the use of any bias-based profiling in its enforcement programs as it may lead to allegations of violations of the constitutional rights of the citizens we serve, undermine legitimate law enforcement efforts, and may lead to
1

claims of civil rights violations. Additionally, bias-based profiling alienates citizens, fosters distrust of law enforcement by the community, invites media scrutiny, invites legislative action, and invites judicial intervention.
B. Bias-based policing creates an increased safety risk to ACSO deputies and citizens and is a misuse of valuable ACSO resources. Such practices may lead to increased exposure to liability.
C. Bias-based policing undermines the ability of the ACSO to realize its mission of protecting public safety and pursuing justice.
D. It is imperative that the ACSO clearly demonstrates a process for preventing such practices. Allegations of bias-based profiling or discriminatory practices, real or perceived, critically injure the relationship between the ACSO and the community it is entrusted to protect and serve.
E. This depmtment does not endorse, train, teach, SUppOlt, or condone any type of bias, stereotyping, or racial, cultural/ethnic, and gender profiling by its members. While recognizing that most members of the department perform their duties in a professional, ethical. and impartial manner, this department has an obligation and is committed to identifying and eliminating any instances of bias-based policing in all areas.
V. OPERATIONAL PROCEDURES
A. The ACSO prohibits officer use of proxies for demographic category, including language ability, geographic location, or manner of dress.
I. When officers are seeking one or more specific persons who have been identified or described by their demographic category, or any proxy thereto, officers may rely on these descriptions only when combined with other appropriate identifying factors, and may not give exclusive attention or undue weight to demographic category.
B. Preventing Perceptions of Bias-Based Policing
I. As a means of offsetting and preventing inappropriate perceptions of biased law enforcement, each officer is expected to adhere to following protocols whenever engaging the general pUblic.
a. Each stop shall conform to department policy and procedures and comply with General Statutes.
b. Be courteous and act professionally at all times.
c. Introduce him or herself to the individual(s); providing the officer's title, name, and agency affiliation; and state the reason for the interaction, as soon 2

as practical and appropriate to do so, unless providing such information will compromise the officer's safety or public safety. During the course of motor vehicle stops, the officer should provide this information before asking the driver for his or her license and registration.
d. Ensure that the detention is no longer than necessary to take appropriate action for the known or suspected offense, and ensure that the individual understands the purpose of any delays that might be encountered.
e. Answer any questions the individual(s) may have, including explaining options for traffic citation disposition, if relevant.
1'. Provide your name and badge number when requested, in writing or orally.
g. Explain the reasons why an individual may have been stopped or detained, especially if no other official action is being taken (e.g., the officer determines that the person being detained is not the patiy being sought, if there was an investigative detention that did not yield any evidence of criminality or offense, etc.).
C. Identification of Possible Profiling.
1. To guard against and protect members of the department from allegations of bias­ based policing, and to demonstrate for those who may make such allegations, supervisory personnel of the depatiment will take the following steps.
a. It is the responsibility of supervisory personnel to continually assess and monitor the performance of those members of the department who are under their direction and supervision to always be aleli for any forms of behavior or patterns of behavior that an employee may be engaged in and intercede when appropriate.
b. Often times, it is the direct supervisor who first becomes aware of a potential problem either by way of his or her observations of an officer's performance, enforcement actions, or when there appears to be a pattern of complaints that seem to be emerging.
c. At times it might even be triggered just in conversation when an employee speaks disparaging of persons of any particular race, ethnic group or cultural background, gender, sexual orientation, religion, economic status, age, or any other identifiable group (in which case, such type of behavior should be corrected).
d. Whenever a concern does arise, it is the duty and obligation of that supervisor to, at the very least, discuss such concerns with that employee. Often speaking with an employee in the form of informal counseling may be what is needed to rectify or clarify any concerns. 3

e. Any confirmed or suspected acts leading a supervisor to believe that an employee may be engaging in some form of bias-based policing or discriminatory practices must be forwarded to the Internal Affairs Officer (lAO).
f. All complaints of alleged bias-based policing or discriminatory practices against a member of this department are to be fully investigated (no matter the source) by the Internal Affairs Officer.
D. Response to Incidents Indicating Bias-Based Policing.
1. Generally speaking, when bias-based policing does take place, it is the result of one of three causative factors that include the following:
a. Intentional Acts: In any instance in which a member of this department is found by the lAO to have engaged in some form of bias-based policing or discriminatory practice. such behavior will result in the appropriate form of disciplinary action by the Sheriff.
b. Unintentional Acts: In such cases. the employee may receive additional training, guidance, supervisory review, additional monitoring for a specified period oftime, as may be directed by a commanding officer in consultation with the Sheriff.
c. Institutional Practices: In the event that the department practices are discovered to promote or allow bias-based policing, the Sheriff shall address such practices through policy review and training.
VI. DATA COLLECTION
A. Officer Reporting Requirements
1. Officers shall complete the traffic stop form immediately following every traffic stop. The traffic stop data will be completed and submitted electronically, if feasible. In the case where the data cannot be submitted electronically, a paper form will be submitted.
2. Officers also shall complete an incident report following a traffic stop whenever:
a. A person is handcuffed or taken into custody.
b. There is a use of force by any officer.
c. There is any property seized.
4

B. Responsibilities of the Supervisors
1. It is the responsibility of all supervisory personnel to ensure that officers under
their direct supervision, regardless of their assignment, are familiar with this directive and are adhering to the requirements of this directive. Supervisory personnel are also responsible for the following:
a. Ensure that all citations and summons are completed (particularly as it relates to whether or not a search was performed during the course of the motor vehicle stop).
b. Any incomplete citations or traffic stop data forms should be returned to the submitting officer for completion prior to their submission to the Records Division.
c. Ensure that officers complete any missing traffic stop data.
C. Processing by the Records Division
1. The Records Division shall maintain a database for all submitted citations. The Records Division serves as the repository for motor vehicle citations/summons and the traffic stop data. In addition to these functions, the Records Management Unit also shall be responsible for the following:
a. Maintain a database of all Traffic Stop Data.
b. Record the data obtained on the form in a computerized database.
c. Review all submitted motor vehicle citations and traffic stop data for accuracy and completeness.
1) Any forms found to be incomplete, inaccurate, or illegible will first be copied prior to returning the copied form back through appropriate chain of command to the officer to make the necessary corrections.
2) The original copy of the returned forms will remain in the Records Division.
VII. AGENCY-WIDE REVIEW AND CONTINUOUS IMPROVEMENT
The department will continue to improve its practices in all aspects of preventing bias-based policing as we learn from regular data collection, analysis, and evaluation and by:
1. Monitoring any legislative changes or court rulings that might impact the scope and procedural guidelines within this directive.
5

2. Identifying any updates on the evolution of interpreting bias-based policing data collection methods and procedures.
3. Identifying any training opportunities that might be useful in further educating officers on the implications of bias-based policing.
4. Coordinating with the Training Officer in determining the appropriate frequency of review of this policy, legal updates, and other associated training opportunities.
6 


Exhibit B 


ALAMANCE COUNTY SHERIFF'S OFFICE 
 REVISED COMPLAINT POLICY 


PURPOSE: The purpose of this standard is to establish guidelines and procedures for receiving, reporting, investigating, and adjudicating allegations and complaints against Alamance County Sheriffs Office personnel.

POLICY: The internal affairs function is important for the maintenance of professional conduct in a law enforcement agency. The integrity of the agency depends on the personal integrity and discipline of each employee. To a large degree, the public image of the agency is determined by the quality of the internal affairs function in responding to allegations of misconduct by the agency or its employees.

It is the policy of the Alamance County Sheriffs Office to investigate, where feasible, all allegations of employee misconduct, whether received from a citizen or an employee ofthis agency and whether the complainant is known or anonymous. In addition, the agency conducts administrative investigations into certain incidents due to the sensitivity and/or magnitude of the incident, even when a complaint is not received.

PROCEDURE:

I.

INVESTIGATIONS

A. Supervisory Investigations

Supervisory employees (Captains/Lieutenants or a Sergeant acting in their absence) shall conduct investigations into the following:

1) Routine citizen complaints 2) Minor violations of policy and procedure (subject to the discretion ofthe Chief
Deputy) 3) Insubordination 4) Employee misconduct of a less than serious nature.

B. Office of Professional Standards Investigations

The Office of Professional Standards shall conduct internal administrative investigations into the following:

1) Inmate deaths 2) Inmate escapees 3) Gross misconduct 4) Use of deadly force 5) Allegations of the use of excessive force or brutality 6) Allegations of domestic violence

1

7) Allegations of sexual harassment 8) Allegations of civil rights violations, violations of the Bias-Free Policing
Policy, use of derogatory language or racial/ethnic slurs, or a traffic enforcement action that was taken without a valid basis 9) Allegations of corruption 10) Incidents requiring investigations that are extremely lengthy, time consuming, involve multiple divisions/sections, or when other investigative resources are unavailable. 11) Any other investigations assigned by the Sheriff or Chief Deputy.
II. COMPLAINT PROCESSING
A. Complaints shall be accepted from any source, whether made in person, by mail, or over the telephone. Where feasible, an inquiry will be made of all complaints and where warranted a formal investigation will be conducted, whether the complainant is known or not. All complaints shall be documented on the "Alamance County Sheriff s Office Citizen Complaint" form.
B. All agency members are charged with the responsibility of courteously receiving all complaints which may be lodged against the agency or any member thereof, whether made in person, by mail, or telephone, regardless of nature.
C. All persons making complaints shall be interviewed and a complaint form shall be prepared and processed. Anonymous complaints shall be received and processed as any other complaint.
D. A parent or legal guardian must accompany minors that wish to file a complaint.
E. Any non-ranking or nonsupervisory member of the agency receiving a complaint about a Sheriffs Office employee from a citizen which may constitute misconduct or violation of agency orders, policy, or procedures, shall immediately notify his or her respective supervisor. In the absence ofthe employee's supervisor, the next ranking supervisor within the chain of command shall be notified.
F. The supervisor processing the complaint shall record pertinent information concerning the complaint on the Citizen Complaint form and make a preliminary determination as to responsibility for follow-up on the complaint. When appropriate, the supervisor shall conduct a preliminary investigation, including interviewing the complainant and any witnesses readily available. The Citizen Complaint form will be forwarded to the Chief Deputy within 24 working hours of the receipt of any complaint. When circumstances warrant differently, verbal notification ofthe Chief Deputy or an administrative staff member acting in his behalf, is acceptable prior to completing and forwarding the Citizen Complaint form. Further notification of any other personnel will be made as is deemed appropriate and necessary in each instance, but such additional notification(s) shall not be in written form.
G. Whenever practical, supervisors shall take corrective action to resolve minor complaints which result from a misunderstanding, or which need little or no investigation to resolve
2

the issue. In this circumstance, the results and the findings will be documented and forwarded to the Chief Deputy using the Citizen Complaint form. If the supervisor does not satisfactorily resolve the complaint, or if the Chief Deputy does not concur with supervisor's findings, the Chief Deputy will direct the supervisor to conduct further investigation, will reassign the investigation to another supervisor, or will direct the investigation to the Office of Professional Standards, as is deemed appropriate.
III. PROFESSIONAL STANDARDS ADMINISTRATIVE INVESTIGATIONS
A. Investigative Process
1) An individual holding the rank of Captain or above wi 11 be responsible for the Office of Professional Standards; this individual will answer directly to the Chief Deputy and will be responsible for conducting investigations assigned to that division.
2) The chain of command will normally be utilized to inform the Sheriff of complaints against the agency or its employees. Nothing herein prevents employees with information about misconduct from going directly to the Sheriff, however.
3) The individual conducting the investigation should conduct as necessary the following investigatory steps: (a) interview the complainant (unless the complaint is filed anonymously) and any witnesses; (b) interview the officer(s) involved; (c) gather and review any relevant evidence, including CAD reports, traffic stop reports, C-COM recordings, and video evidence; and (d) document the interviews and analysis of the evidence and explain the reasoning for the Complaint Finding (Exonerated, Sustained, Unfounded, Unresolved)."
B. Employee Requirements
Employees who are interviewed about any matter under administrative investigation:
Shall not refuse to answer questions related to the matter under investigations, shall not withhold any information, and must be truthful, as described in the Employees General Rules of Conduct and the Law Enforcement Code of Ethics.
Are prohibited from discussing the matter in question with other personnel or persons other than their attorney, counselor, and/or immediate family, while the investigation is active, including showing any documentation in reference to the matter.
Shall submit to all testing methods for the detection of illegal drugs and/or alcohol, when directed, at the expense ofthe Sheriffs Office.
3

• May be required to be photographed, fingerprinted, or participate in a 

lineup. 

• May be required to submit financial disclosure statements
• May be required to submit to a polygraph, voice stress, or other truth
verification examination. Such examinations are only an investigative tool; questions shall relate specifically and narrowly to the investigation; the answers cannot be used against the employee in any subsequent criminal prosecution. (Current law does not allow for the termination of employees based on the results of these examinations alone).
• Do not have the right to have their attorneys, supervisors, or anyone else
present during any interview or inquiry.
• Privacy rights regarding Sheriffs Office or Alamance County property do not extend to any employee. Real and personal property including but not limited to desk, lockers, storage spaces, rooms, offices, equipment, work areas and vehicles are the property oftbis agency or the county and are subject to inspection or search to retrieve agency property or to discover evidence of misconduct, if there is reason to suspect evidence is there. Only those employees acting in their official capacity shall be authorized to search or inspect areas andlor property assigned to other employees.
• Refusing to cooperate or submit to a procedure herein described may 

result in disciplinary action, including termination. 

c. Employee Rights
• Employees shall be notified, in writing. by the Chief Deputy that they have become the subject of an internal administrative investigation, and shall be advised of the allegations, complaint, and/or the nature of the investigation against them.
• Prior to interviewing an employee uncleI' investigation, the Professional Standards investigator must read and have the employee sign an "Alamance County Sheriffs Office employee Administrative Rights and Responsibilities" form.
• Employees who arc being investigated administratively are entitled to know who file the complaint or initiated the investigation unless the investigator of the complaint believes that information will hindcr the investigation, or will have a severe detrimental effect on the agency or any person; ifso he may withhold that information from the accused employce, in which case the investigator must document in his
4
•

investigative report that this information was requested by the accllsed employee and was denied, and why.
• If the employee is gi ven a po lygraph, voice stress, or other truth
verification examination, the employee is entitled, upon request, to receive the results of such an examination after the agency receives same.
• Employees will be notified, in writing, of the findings of the
investigation at the conclusion of the investigation by the Chief Deputy.
• During criminal investigations, employees have all the rights and
privileges of the US Constitution and the NC Constitution, and any and all applicable laws, regulations, andlor ordinances.
IV. COMPLAINT/ADMlNISTRATlVE INVESTIGATION RESOLUTION
A. Criminal investigations conducted against employees will not be conducted by the Office of Professional Standards; such investigations will be conducted either by this agency's Criminal Investigation Division, or by an outside agency such as the NC State Bureau ofInvestigation, as is appropriate and is determined by the Sheriff andlor District Attorney. Administrative investigations which are conducted into potential or alleged criminal activities of Sheriff's Office employees will be coordinated and conducted by the Office of Professional Standards in such a manner so as not to interfere with any ongoing criminal investigation into that same matter.
B. As a general rule, supervisory complaint investigations will be completed within l5 working days. Professional Standards investigations will generally be completed within 45 working days. These investigations will be subnlitted, in writing, through the chain of command to the Chief Deputy. If necessary an extension of time for completing an investigation may be granted by tbe Chief Deputy.
C. Upon conclusion of the investigation, the complainant, if known, shall receive written notification that the investigation has been completed. A copy of the letter to the complainant will be forwarded to the employee involved in the complaint.
D. Completed complaint reports and Professional Standards investigation reports will be submitted to the Chief Deputy. Upon receipt of the completed complaint or Professional Standards investigation report, the Chief Deputy will complete the "Citizen Complaint" and "Notice of Findings of Investigation" forms as needed.
5 


E. Once the complaint/,lchninistrative investigation is completed and reviewed according to this procedure, the complaint and/or allegations will be classified as either.
• UI?!ounded -- the investigation revealed sufficient facts to indicate that
the incident did not occur. • Unresolved - the investigation disclosed insufficient evidence to clearly
prove or disprove the allegation.
• Exonerated - an incident occurred as described, but the employee was
found not to be negligent or at fault.
• Sustained -.. the investigation revealed sufficient fncts that the
allegation(s) were fOllnd to be true.
F. Sustained complaints or allegations will be handled in accordance with the Sheriffs Office "Rules of ConductlDisciplinary Procedures" policy, and documentation of same will be included in the employee's personnel file. If other violations of law or procedure are found during the course of any internal investigation other than the complaint being investigated, those violations will also be handled and investigated in accordance with this policy and procedure
G. When completed, all complaint and internal administrative investigation reports, forms and findings shall be maintained in the Oftlce of Professional Standards. The Sheriff shall be apprised of all findings and conclusions, and shall be updated on the progress of all investigations by the Chief Deputy.
V. DISCIPLINARY ACTIONS
A. One or more of the following disciplinary actions may be imposed against an employee as the result of a sustained complaint, allegations, or internal administrative investigation:
• Counseling: Corrective training to ensure the employee understands
proper procedure.
• Personal Performance Notification: Entry into the employee's
performance appraisal record.
• Letter of Reprimand: A written form of censLlre. • Suspension: The employee is sLlspended [rom duty without pay.
Demotion: The employee is reduced in rank and/or pay.
• Dismissal: The employee is separated from departmental employment.
B. Employees who receive any type of disciplinary action(s) have the right to appeal same in accordance with this department's "Grievance Procedures" policy within 5 standard business days. Probationary employees are not entitled to appeal termination. The Sheriff shall be consulted and shall concur with any and all disciplinary actions recommended against an employee. and
6 


may modify andlor suspend any disciplinary action(s) in view of mitigating circumstances or at his discretion. VI. COMPLAINTS ARISING FROM OFF-DUTY EMPLOYMENT OR ACTIVJTlES Citizen complaints or inquiries resulting fi'ol11 off duty employment or activities of Sheriffs office personnel will be handled in accordance with this policy and procedure. VII. ANNUAL STATISTICAL SUMMARIES A. By calendar year, the Office of Professional Standards shall compile statistical infOtmation bascd on records of complaints and Professional Standards investigation issues. This report shall be restricted to the following infol1l1ation:
J) The total number of complaints received. 
 2) The total number of internal affairs investigations conducted. 
 3) The total number of issues resolved as: 

a. Unfounded b. Sustained c. Exonerated d. Unresolved 4) If applicable, the number of training hours held pursuant to internal
affairs issues. 5) Any recurring issues recognized by the Office of Professional
Standards brought forth by internal affairs issues, and how these issues were resolved.
7
•

Alamance County Sheriff's Office 

Citizen Complaint Form 


I Date:

I Time:

I Method I DIn-Person D Phone D Letter D Email

I Documenting Employee I Name:

I Rank:

lID #:

Complaint Against I Name: Incident Details I Date:

I Time:

I Location:

I Rank:

lID #:

J Complainant Name:

Street Address:

Zip:

I Phone #:

I Employer:

I Race: I Sex: I DOB:

I City:

I State:

I Alternate Phone #:

Witness (Optional) I Name:

Street Address:

Zip:

I Phone #:

I Employer:

I Race: I Sex: I DOB:

I City:

I State:

I Alternate Phone #:

Witness 2 (Optional) I Name:

Street Address:

Zip:

I Phone #:

I Employer:

I Race: I Sex: I DOB:

I City:

J State:

I Alternate Phone #:

Narrative (Attach associated incident report or continuation pages if applicable)

Version 2.0

Alamance County Sheriff's Office 

Citizen Complaint Form 


Results of Initial Investigation
D Immediately resolved (detail in narrative) and forwarded to Chief Deputy for review. D Forwarded to Chief Deputy for assignment.

Results of Chief Deputy's Review
D No further investigation needed. D Assigned to employee's supervisor for further investigation. D Assigned to another supervisor for further investigation.
D Assigned to Office of Professional Standards for investigation.

Investigator Assigned I Name:
Complaint Investigation #:

I Date Assigned:

Date Complainant Notified of Conclusion of Investigation:

Date Notice of Findings Served on Employee:

I Rank:

lID #:

IDate Completed:

I Complaint Finding I D Exonerated

D Sustained

o Unfounded

D Unresolved

I Chief Deputy IName:

I Signature:

I Date:

Version 2.0

2

Alamance COllnty Shcnffs Onk~ Employc(.; 6~[n itlistratl \'i!:J~J.£h~,~ Ilnd f{c.sponsibiliJ!c;:~

1wish ttl advIst! you that you arc being questioned w; p;\rl oran offil.:i:d >lunllnisu;Jtivc

illvestlgation for theoAlamance County Sheriff's Office. You ilrc being questioned

rcg.mli n ______o ~L

._~_r"'o_.~.

0 0______

_~o _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .

---_..

---­

You will b~ asked questions 5pccltic~lly directed and nam:~wly rcJah~d to the issue{s) bejn~

jnv~tigllted.

Neither your statemcnts nor any information gained by r~h0n of such stalcmeonLS can be used agaiIl~t you in any suhsequent criminul proceedings, Inlhat regard, you arc nol being compelled to waive your Constitutional right agait:st sc1f·incliminnlino. Sillce no statement you makt:; nor infonl1ation resulting from it can be lLsed us pan of ucrirnin'll charge, YOil do not bavc the right 10 refuse to answer qlles~iolls in lhis strictiI'
admini5tralive inil;rvic\'i,

1advise you tbat if you refuse t.o answer questions relating to the.: performanc~ of your official dtl~ic~. you will be subjt'Cl to Sheriff's OHice disciplinary action, which could n,:s\llt in your dismissal from the agency,

I repeat Ulat neither yOUI' statements nor any infonnatioJl gained by rcason or such st;ttemcnts can be used against you in any subt'cqucnt crlmir:al pr<H.o,:~edingso These statements .md rt.!~1'J.1tjng infonnll.tion call, however, be used against you in regard to any acirninisrra:i\'e violalioTlS,

[ ad,,!};c you thul, as required by Sheriff's Oftice rules, all of your St:tteIHcnts must be truthfuL Any t::11rnthf\l!statcmcnl mny rC~\Jh in a SCJ111fl!.l1: Shenff's Office \1dmini~trilt; VI:) violation b~ing lodged against )'I..lU.

I advise you tllut y~lll an: Il{)t to discu$$ this itwestig[ltion with anyone other thaH ),()lU attorney. pror~s';'lunal COUlIst!()('. or member of your irnm\:xllal~ ramify \...·ithoul the specific pcml',SS~()n of the Intern»! Affairs fnvesiiga{o[" a!i~i~n\:J LV invcslig;ltc tillS invcstigatl()l~ Ot the Major of Administration uIltil this 111vcs:igatio!\ iii closed,

I undcrsHmd the! above information and realize that my statement is being given punmatlt to II Sheriffs Ofl\;c admini~lrativc invcstigmioll.

Will1~s!>; _ ....~ ._,__ 0_ _ _ _ _ _".

- , -_ _ .0'0 __,0-_0_._ _ _ ••
11""..[~hlJ!")

Alamance County Sheriff's Office
NOTICE OF FINDINGS OF COMPLAINT/INVESTIGATION

Employee:

Professional Standards File #:

You were recently the subject of an investigation concerning an allegation(s) of misconduct and/or policy and procedure violation. This investigation has been completed and the findings from that investigation have been discussed with the Sheriff. This notice is to inform you of the conclusions of this investigation with regard to each of these issues, and what, if any, actions are being taken toward you as a result of these findings:

Issue #1:
D Unfounded
Issue #2:
D Unfounded
Issue #3:
D Unfounded
Action Taken:

D Exonerated D Exonerated D Exonerated

D Sustained D Sustained D Sustained

D Unresolved D Unresolved D Unresolved

Supervisor Signature Chief Deputy Signature

Date Date

Alamance County Sheriff's Office 


TC'rry S. Johnson Sheriff
Tim Bl'itt Chief Deputy
Slwlton Brown Major
Monte Bolla nd lviajor
Alan "'lib Major

Dear:
This letter is to inform you that the complaint you filed against has been thoroughly investigated and appropriate action has been taken.
While North Carolina General Statue 153A-98 prohibits this office frol11 publicly commenting on personnel matters, 1want to thank you for bringing this incident to our attention since citizen complaints often aid this office in supervising our personnel in a proper and professional manner.
This office strives to maintain tbe highest standards in our employees' contact with citizens. The investigation ancl review of citizen complaints arc important palts of maintaining those standards. I hope that any further contacts you have with our employees will be of a positive nature.
If I can be of assistance, please feel free to contact me at 570-6309.
Sincerely,

Street & Ma iling Address 109 Somh Maple Street Gral1l1m, NC 27253
Office: (336) 570·6311 Fax: (336) 227-0614

Tim Britt Chief Deputy

• 


Exhibit C 
 NORTH CAROLINA TRAFFIC STOP REPORT FORM 


Acso
Agency Name
A100fDQtlc,,<:"
County of Stop
City of Stop

Date (Month/DaylYear) Officer 10 Number

Time

Initial Purpose of Traffic Stop (check only one)

0 Checkpoint 0 Driving While Impaired 0 Investigation

0 0 Other Motor Vehicle Violation

Stop Light / Sign Violation

0 Safe Movement Violation

0 Vehicle Equipment Violation

0 Seat Belt Violation

0 Vehicle Regulatory Violation

0 . Speed Limit Violation

Vehicle Driver Information

Native

0 0 Driver's Age _ __ Driver's Race

White

Black 0 American

o Asian 0 Other

Driver's Sex

o Male.

o Female

Driver's Ethniclty

o Non­

o Hispanic (Person of Mexican, Puerto Rican, Cuban, 


Hispanic

Central or South American, or other Spanish Culture) 


1I'i"

W*

•

Enforcement Action Taken as a Result of the Traffic Stop (checkonfyone)

o Citation Issued
o No Action Taken
1M

o On-View Arrest -----...~ If arrest made, who was arrested?

o Verbal Warning

0 Driver

o Written Warning

0 Passenger(s)

we

rtr

Physical Resistance Encountered

Did Officer(s) encounter any physical resistance from Driver and/or Passenger(s)? Did Officer(s) engage in the use offorce against the Driver and/or Passenger(s)? Did injuries occur to the Oftlcer(s) as a result of the stop? Did injuries occur to the Driver as a result of the stop?

D Yes 0 No 0 Yes 0 No 0 Yes 0 No 0 Yes 0 No

Did injuries occur to the Passenger(s) as a result of the stop?

0

.M e­

Vehicle/Driver/Passenger(s) Search

Was a search initiated subsequent to the traffic stop?

0

kif search was Initiated, complete Part 1\


VM @'6*&1'. . .e

i eN.'

enmeMe 1

~ " '. . .

Yes 0 No
it
Yes' 0 No 

M ,ett ! _WM1

r---~-'

Traffic Stop Report

III

Part II

..

Type of Search (check only one)
o .. Consent ,0 Search Warrant

0 Probable Cause

0 Search,lncldent to Arrest

0 Protec!lv~ Frisk

p'
Basis for Search
o Erratic/Suspicious Behavior o Informant's Tip

tt

•

0 Observation of Suspected Contraband 0 Other Qfficial Information

o Suspicious Movement o Witness Observation

AU !

4'*§'fMb ,

e 9&&

ew FE 


Person(s)Nehlcle Searched 


Was the Vehicle Searched? Was the Driver Searched? Was a Passenger(s) Searched? Were the Personal Effects of the Driver and/or Passenger(s) Searched?

III

III 8'i

Identify the sex, race, and ethnicity of each passenger searched

0 Yes D ) No D Yes D No 0 Yes D No D yes D No
B.

"
Passenger 1 Passenger 2
..Passenger :3 Passenger 4

Age

Sex

Race

Ethnicity

Native

Non-

Male Female White Black American Asian other, Hispanic Hispanic

--.

Contraband Found Contraband found as a result of the search:

o None OR complete the following:

0 Drugs 0 Alcohol 0 Money, 0 Weapons
,0 Other

Ounces
~--

Pounds

- - -Pints

- - -Gallons

- - -Dollar Amount

- - - 'Nu
mber of Weapons

Dollar Amount 


Property Seized

- - - Dos'ages

Grams

-

Property seized as a result of the search:

0 None OR complete the following:

o Motor Vehicle
f

0 0 Personal property

Other Property

,

Office Use Only

Date

Reviewed

<:::RI.1?? 1Rt:>1I 1?/f\Q\

Entered

Kilos
•
-
,Initials

Exhibit D 

ALAMANCE COUNTY SHERIFF'S OFFICE 
 CHECKPOINT AUTHORIZATION FORM 


Alamance County Sherifrs Office
Checkpoint Authorization Form

Primary Programmatic Purpose (Check One)
o 0 0 Driver's License I Registration I Seatbelt

10 Insurance

0I DWI

Details
Date:
Location: Participants (ID #'s):
(List Agency & Name ifnot ACSO.)
Supervisor (Name & ID):

I J Start Time:

J I End Time:
\ 0 Present

Shall ask the driver of every vehi~le for the following:

,

"

'

,

o Driver's License

o\ Registration

'::\ 0 Insurance

IAdditionall~structions 


----,
Basis for Checkpoint
;;
Location Selected By:
Reasoning for Location:
Reasoning for Time Span:

Alamance County SherifPs Office
Checkpoint Authorization Form

Considerations for Checkpoint

Potential for Traffic Interference:

Predetennined Checking Pattern: Every _ _ car will be checked.

Allow Stalled Traffic to Pass:

D

Appropriate Notice of Checkpoint: D Marked Patrol Vehicles D Emergency Lights On

Vehicle Checking Stations shall be operated pursuant to Policy #VIII-4, Alamance County Sheriff s Office Policy and Procedure Manual.

Authorizing Supervisor Signature Date

Primary Deputy Signature Date