King v. City of Eastpointe

MOORE, Circuit Judge,

concurring in part and dissenting in part.

While I generally concur with the majority, I respectfully dissent from the majority’s holding that summary judgment was proper for the February 28, 1997, § 1981 selective-enforcement claim and the September 30,1996, § 1983 claim. Additionally, I agree that the district court erred in granting summary judgment on the April 4, 1996, § 1983 intentional-discrimination and search-and-seizure claims, but I write separately to explain a bit more fully my reasoning.

First, summary judgment is not appropriate regarding the Plaintiffs’ February 28,1997, § 1981 claim. The plaintiffs have presented evidence that the officers pursued the three African-American males, but not the group of white females, allegedly involved in the drug activity outside the Eastland Liquor Store, which creates a genuine issue of material fact. The 911 caller told the dispatcher, “[w]e’ve got a bunch of boys that are dealing drugs out here,” and later stated that “[t]here are three black males and four or five white girls.” Joint Appendix (“J.A”) at 405. After receiving a dispatch, Officer Reiser *813 pursued only Martez King’s vehicle. The 911 call alerted the police to two suspect groups of different racial makeup, yet the police detained only the black males.

The majority suggests that the plaintiffs have not presented evidence to support this claim. It is true that neither Keiser’s affidavit nor his police report from that night mention white females. However, Keiser’s affidavit is extremely terse, and it is a reasonable inference, that we must take in the light most favorable to the plaintiffs on summary judgment, that the 911 dispatcher relayed the entire contents of the citizen’s report to Keiser such that he knew about the white females. Second, the majority points out that Officer Ostrowski stopped at the store, did not see the white females, and spoke with the liquor store clerk who reported that there had been no problems outside the store (begging the question of why Officer Keiser continued to investigate and then proceeded to stop King’s ear if the liquor store clerk’s report that no incident had occurred was enough to prompt police to cease searching for the white females). Given that it was Officer Keiser who allegedly received the report about the two groups and chose to investigate only one, it is not clear how Ostrowski’s observations at the liquor store play a role. The plaintiffs have presented the necessary evidence to allow a reasonable jury to conclude that the police intended to and actually did discriminate on the basis of race.

Second, the question of whether the police had probable cause to arrest Charlie in the pizza parlor on September 30, 1996, involves a genuine issue of material fact that makes summary judgment improper. Taking the evidence in the light most favorable to the plaintiffs, we are presented with evidence that Charlie entered into “Da Pizza Joint” after Strong was already in the restaurant. Charlie arrived with several other African-American males, ordered pizza, and sat at a table on the opposite side of the restaurant from the couch on which Strong was resting. Charlie, who wore a black shirt, claimed that he did not speak to Strong in the pizza parlor and did not sit near Strong until the police officers ordered him to move. Based upon these facts, it is not clear whether there were “facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense,” Michigan v. DeFillippo, 443 U.S. 31, 37 , 99 S.Ct. 2627 , 61 L.Ed.2d 343 (1979), because there was only scant inculpatory evidence linking Charlie to the assault on Markham, which was countered by strong exculpatory evidence. Charlie was allegedly one of several African-Americans in the pizza establishment, he claimed that he did not sit with or speak with Strong, and the shirt he was wearing was as far from tan on the color spectrum as possible. See Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir.1999) (“[Officers, in the process of determining whether probable cause exists, cannot simply turn a blind eye toward potentially exculpatory evidence known to them in an effort to pin a crime on someone”).

The majority reaches the opposite conclusion because it relies on the police officers’ testimony that they saw Charlie and Strong talking and sitting next to each other through the restaurant window before the officers entered. Far from being “uncontradicted testimony,” as the majority labels it, Charlie’s deposition testimony clearly contradicts the officers’ rendition of events. Yet, even if Charlie and Strong had been observed conversing and sitting side-by-side, only Charlie’s skin color matched the description of the suspect available to the officers, and the officers appeared to ignore that Charlie was wear *814 ing a different colored shirt than the perpetrator. Furthermore, the majority remarks that Charlie has not presented evidence that any of the other black males in the pizza shop “better matched the description of the second suspect.” Op. at 808. Yet, it is not Charlie’s burden to prove that other potential suspects better fit the limited description with which the officers were working; it is the responsibility of the officers to demonstrate they had a reasonable belief that Charlie was their target.

Third, I agree with the majority’s holding that Officer Childs’s use of the word “boy” gives rise to a viable § 1983 racial discrimination claim, but I employ slightly different reasoning. A § 1983 claim for racial discrimination at the hands of the police can be raised as a specific selective-enforcement claim or as a more general claim under the Equal Protection Clause; the former is a subset of the latter, and each has its own distinct, but related line of precedent. The framework for analyzing selective-enforcement claims filed against police officers descends from selective-prosecution cases. See Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 533-34 (6th Cir.2002) (holding that a plaintiff who alleges selective enforcement of facially neutral laws must demonstrate that the offensive enforcement “ ‘had a discriminatory effect and that it was motivated by a discriminatory purpose’ ” (quoting Wayte v. United States, 470 U.S. 598, 608 , 105 S.Ct. 1524 , 84 L.Ed.2d 547 (1985))). Here, the plaintiffs’ § 1983 claim is of the more general variety, and the plaintiff must allege that a state actor intentionally discriminated against him or her, although the plaintiff does not have to demonstrate a pattern of discriminatory action by the police; “[a] single invidiously discriminatory governmental act ... would not necessarily be immunized by the absence of such discrimination in the making of other comparable decisions.” Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 , 266 n. 14, 97 S.Ct. 555 , 50 L.Ed.2d 450 (1977).

The use of racially discriminatory language can provide some evidence of a discriminatory purpose when that language is coupled with some additional harassment or constitutional violation. The use of a racial epithet by itself is not an actionable violation of the Equal Protection Clause. See Owens v. Johnson, No. 99-2094, 2000 WL 876766 , at *2 (6th Cir. June 23, 2000) (unpublished Order) (“The occasional or sporadic use of racial slurs, although unprofessional and reprehensible, does not rise to a level of constitutional magnitude.”); Williams v. Bramer, 180 F.3d 699, 706 (5th Cir.1999) (“[A]n 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.”) Yet, “[t]he use of an epithet ... is strong evidence that a comment or action is racially motivated,” Williams, 180 F.3d at 706 , and evidence of racial slurs can support a § 1983 Equal Protection Clause claim when they accompany some other prohibited behavior. Id.; Simmons v. O’Brien, 77 F.3d 1093 , 1094 n. 2 (8th Cir.1996); Smith v. Thornburg, 136 F.3d 1070, 1089-90 (6th Cir.1998) (Clay, J., dissenting) (asserting that alleged racial slurs standing alone form the basis for a equal protection claim); Usher v. City of Los Angeles, 828 F.2d 556, 561-62 (9th Cir.1987). Here, plaintiffs assert that Childs used a racial epithet in the midst of an allegedly unconstitutional seizure, calling Charlie “boy,” a word that a reasonable jury could conclude was racially charged, given the totality of the circumstances. See Booker v. Budget Rent-A-Car Sys., 17 F.Supp.2d 735, 743 (M.D.Tenn.1998). It is the confluence of a racial slur and a potentially illegal seizure that requires us to reverse the judgment *815 of the district court and remand for further proceedings.

Finally, for the April 4, 1996, § 1983 Fourth Amendment violation, both prongs of the Terry test, rather than just the second prong, are in dispute, because there was not a proper basis for the stop, considering the evidence in a light most favorable to the plaintiff and taking into account “whether the law enforcement officials were aware of specific and articulable facts which gave rise to a reasonable suspicion.” United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986). Both Officer Childs and Charlie testified that Childs stopped the teenagers on April 4 because “two black males had came over and stole bikes,” J.A. at 861, although there is evidence presented by the defendants and relied upon by the majority that Childs conducted his investigatory stop “solely on the grounds that the young men were truant from school.” Op. at 805 & n. 6. We must assume that Childs stopped the teenagers because he suspected they had stolen the bicycles, which I believe presents a genuine issue of fact regarding the reasonableness of the stop. While it may have been reasonable for Childs to have stopped two teenagers for truancy when he observed them around midday, it is not reasonable for Childs to have stopped the teenagers for suspicion of theft - when they did not engage in any other observed dubious behavior - merely because they were black and riding a bicycle.