Amicus Curiae Brief — Randy Johnson, Petitioner v. United States

Supreme Court briefApr 23, 2018

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No. 17-1349

IN THE

Supreme Court of the United States

RANDY JOHNSON,

UNITED STATES,

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF HOWARD UNIVERSITY SCHOOL OF

LAW, CIVIL AND HUMAN RIGHTS CLINIC IN

SUPPORT OF THE PETITIONER

AJMEL QUERESHI

Counsel of Record

HOWARD UNIVERSITY

SCHOOL OF LAW

2900 Van Ness St., N.W.

Washington, DC 20008

(202) 216-5574

Ajmel.Quereshi

@law.howard.edu

Attorney for Amicus Curiae

April 23, 2018

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................

iii

INTEREST OF AMICUS CURIAE ..................

INTRODUCTION AND SUMMARY OF

ARGUMENT................................................

ARGUMENT .....................................................

I. AN EXTENSION OF WHREN BEYOND

TRAFFIC VIOLATIONS WOULD GIVE

POLICE

OFFICIALS

UNCHECKED

AUTHORITY TO STOP INDIVIDUALS…...

II. AN EXTENSION OF WHREN WOULD

DISPROPORTIONATELY

IMPACT

AFRICAN AMERICANS ...............................

A. Police Disproportionately Stop AfricanAmerican Drivers…………………………..

B. Police Disproportionately Stop and

Search African Americans Outside of

The Traffic Context………………………...

C. The Increase in Stops of African

Americans Could Have Drastic

Consequences. ………………………………

i. North Charleston, South Carolina:

The Death of Walter Scott………………

ii. Waller County, Texas: The Death

Of Sandra Bland………………………….

iii. Columbia, South Carolina: The

Shooting of Levar Jones…………….......

III.THE VICTIMS WOULD BE LARGELY

POWERLESS

PROTECT

THEMSELVES ............................................

CONCLUSION .................................................

iii

TABLE OF AUTHORITIES

CASES:

PAGE(S)

Burgis v. New York City Dept. of Sanitation,

798 F.3d 63 (2d Cir. 2015)…………………... …….. 20

Dods v. State,

240 P.3d 1208 (Wyo. 2010)…………………………….6

McCleskey v. Kemp,

481 U.S. 279 (1987)…………………………………...18

People v. Haywood,

944 N.E.2d 846 (Ill. App. Ct. 2011)………………….6

State v. Batchili,

865 N.E.2d 1282 (Ohio 2007)…………………………6

State v. Brunner,

No. 2007CA00285, 2008 WL 4118902 (Ohio Ct. App.

Aug. 29, 2008)…………………………………………...6

United States v. Avery,

137 F.3d 343 (6th Cir. 1997)…………………………20

United States v. Bullock,

94 F.3d 896 (4th Cir. 1996)…………………………..20

United States v. Callarman,

273 F.3d 1284 (10th Cir. 2001)………………………..7

United States v. Harvey,

16 F.3d 109 (6th Cir. 1994)…………………………….6

United States v. Matias-Maestres,

738 F. Supp. 2d 281 (D.P.R. 2010)……………………7

United States v. Stafford,

No. 4:10-CR-75-FL, 2011 WL 2358058 (E.D.N.C.

June 9, 2011)…………………………………………….7

Utah v. Strieff,

579 U.S. ___, 136 S. Ct. 2056 (2016)………………….8

Washington v. Davis,

426 U.S. 229 (1976)……………………………….18, 19

Whren v. U.S.,

517 U.S. 806 (1996)…………………………… passim

CONSTITUTIONAL PROVISIONS & STATUTES:

U.S. Const., Amend. XIV………………………………..18

OTHER AUTHORITIES:

ALEXANDER, MICHELLE, THE NEW JIM CROW

(2010)…………………………………………………….8

Begel, Dave, Parking Tickets Are a Nightmare of Epic

Proportions, ONMILWAUKEE (Aug. 28, 2014),

https://onmilwaukee.com/buzz/articles/parkingticke

tnightmare.html............................................ ……….4

Binder, Alan, Michael Slager, Officer in Walter Scott

Shooting, Gets 20-Year Sentence, N.Y. TIMES (Dec. 7,

2017),

https://www.nytimes.com/2017/12/07/us/michaelslager-sentence-walter-scott.html................ ……...15

Bureau of Justice Statistics, Traffic Stops (Apr. 15,

2018),

https://www.bjs.gov/index.cfm?tid=702&ty=tp

………………………………………………...................2

Carter, Kathy Barrett and Ron Marsico, Whitman

Fires Chief of State Police, NEWARK STAR-LEDGER

(Mar. 1, 1999), at 1……………………………………..9

Donahue, Joe, Boss Warns Troopers: Don't Target

Minorities, NEWARK STAR-LEDGER, Feb. 28, 1999, at

1………………………………………………………..…9

Fletcher, Michael, Driven to Extremes: Black Men Take

Steps to Avoid Police Stops, WASH. POST (Mar. 29,

1996), at A13…………………………………………….9

Harris, David A., The Stories, the Statistics, and the

Law: Why "Driving While Black" Matters, 84 MINN.

L. REV. 265 (1999)………………………………………9

Hassan, Carma and Holly Yan, Sandra Bland's

Family Settles for $1.9M in Wrongful Death Suit,

CNN

(Sept.

15,

2016),

https://www.cnn.com/2016/09/15/us/sandra-blandwrongful-death-settlement/index.html............15, 16

Hauser, Christine, Sandra Bland’s Family Settles 1.9

Million Civil Suit, N.Y. TIMES (Sept. 15, 2016),

https://www.nytimes.com/2016/09/16/us/sandrabland-family-settlement-19-million-lawsuit.html.

………………………………………………….............16

Hennessy-Fiske, Molly, and Michael Muskal, 'I Will

Light You Up,' Texas Officer Warns Sandra Bland

in Video of Controversial Arrest, L.A. TIMES (July 21,

2015), http://www.latimes.com/nation/la-na-sandrabland-jail-death-20150721-story.html...................16

Hunt, Dianna, Ticket to Trouble/Wheels of

Injustice/Certain Areas are Ticket Traps for

Minorities, HOUS. CHRON. (May 14, 1995), at 1

……………………….………………………………….20

Ianelli, Nick, DC Issued ‘Unparalleled’ Number’ of

Traffic Tickets Last Year, WTOP (Mar. 9, 2017),

https://wtop.com/dc-transit/2017/03/dc-issuedunparalleled-number-traffic-tickets-last-year/

....................................................................................5

Letter from Harvey Grossman, ACLU of Illinois, to

Rahm Emanuel, Mayor, City of Chicago (Jan. 15,

2013),

https://www.acluil.org/sites/default/files/aclu-letter-to-mayorsidewalk-stop-and-frisks-1-15-13.pdf.....................12

McFadden, Robert D., Whitman Fires Police Chief

Over Comments on Race, N.Y. TIMES, (Mar. 1, 1999),

at A23………………………………………………….....9

vii

McLeod, Harriet, Ex-South Carolina Trooper Sent to

Prison for Shooting Unarmed Black, Reuters (Aug.

15, 2017), https://www.reuters.com/article/us-southcarolina-shooting/ex-south-carolina-trooper-sent-toprison-for-shooting-unarmed-black-motoristidUSKCN1AV28J..............................................17, 18

Types and Costs of Parking Citations, Official Website

the

City

Milwaukee,

http://city.milwaukee.gov/ParkingServices/Parking

Citations/Parking-CitationTypes.htm#.WtiBGE0Y7X4......................................4

O'Driscoll, Patrick, Drug Profile Lawsuit Settled;

Minority Motorists Stopped, DENVER POST, (Nov. 10,

1995), at A1……………………………………. ……...19

O'Shea, Keith, Walter Scott Shooting: Officer Said His

Mind Was like 'Spaghetti', CNN (Nov. 30, 2016),

https://www.cnn.com/2016/11/29/us/michael-slagermurder-trial-walter-scott/index.html.....................14

Pierson, et al., A Large-Scale Analysis of Racial

Disparities in Police Stops Across the United States,

Stanford University (Aug. 2017)…………………8, 10

Stanford University Open Policing Project, Findings,

https://openpolicing.stanford.edu/findings/..............8

State to Challenge Ruling Troopers Targeted Drivers,

THE RECORD (Northern NJ) (May 2, 1996), at

A3……………………………………………………….20

Susskind, Randall S., Race, Reasonable Articulable

Suspicion, and Seizure, 31 AM. CRIM. L. REV. 327

(1994)…………………………………………………..19

viii

Top Ten Cities with Highest Revenues from

Parking Violations, Parking Panda (July 23, 2015),

https://www.parkingpanda.com/blog/post/top-10cities-with-highest-revenues-from-parkingviolations …………………………………....................5

Trujillo, Josmar, Broken Windows Breaks the Bank,

HUFFINGTON

POST

(Jan.

30,

2018),

https://www.huffingtonpost.com/josmartrujillo/broken-windows-breaksthe_b_14487326.html..............................................13

U.S. Dep't of Just. C. R. Div., Investigation of the

Baltimore City Police Department (2016),

https://www.justice.gov/opa/file/

883366/download…………………………. 9, 11, 12, 14

Vedantam, S and C. Benderev, T. Boyle, How A Theory

of Crime and Policing Was Born, And Went Terribly

Wrong,

NPR,

(Nov.

2016),

https://www.npr.org/2016/11/01/500104506/brokenwindows-policing-and-the-origins-of-stop-and-friskand-how-it-went-wrong...........................................12

Weiser, Benjamin, New York City to Pay Up to $75

Million Over Dismissed Summonses, N.Y. TIMES,

Jan.

23,

2017,

https://www.nytimes.com/2017/01/23/nyregion/newyork-city-agrees-to-settlement-over-summonsesthat-were-dismissed.html.......................................13

Williams, Timothy and Joseph Goldstein, In Baltimore

Report, Justice Dept. Revives Doubts About ZeroTolerance Policing, N.Y. TIMES (Aug. 10, 2016),

https://www.nytimes.com/2016/08/11/us/baltimorepolice-zero-tolerance-justice-department.html

………………………………......................................13

Wilson, Diane, 80,000+ Parking Tickets Issued in

Raleigh Last Year, ABC NEWS (May 11, 2017),

http://abc11.com/news/80000+-parking-ticketsissued-in-raleigh-last-year/1980768/........................5

INTEREST OF AMICUS CURIAE1

The Civil and Human Rights Clinic at Howard

University School of Law advocates on behalf of clients

fighting for their rights guaranteed by the United

States Constitution. The Clinic provides pro bono

legal services on a range of civil rights matters,

including but not limited to police brutality, racial

justice, mass incarceration, and other constitutional

and human rights violations. When such issues arise,

the Clinic regularly files amicus briefs with various

federal courts, including the United States Supreme

Court. As discussed below, the lower court’s decision

in U.S. v. Johnson – specifically its broad application

of the power to stop anyone suspected of a civil parking

violation – presents a grave threat to the communities

the Clinic serves.

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus state

that no counsel for a party authored this brief in whole or in part

and that no person other than amicus curiae, its members, or its

counsel made a monetary contribution to the preparation or

submission of this brief. All parties have consented to the filing of

this brief, which was timely sought in accordance with Rule 37.2.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Over the last three years, largely through the

expansion of social media, the public has become

increasingly aware of police violence directed towards

African-Americans. Though not every police official

acts with discriminatory intent – in fact, the vast

majority do not – it has become increasingly apparent

that police officers frequently treat African Americans

differently than their white counterparts.

Many of these interactions begin with a traffic

stop, often under questionable circumstances.

According to a 2011 survey, 26.4 million individuals

stated that their most recent interaction with police

occurred in the context of a traffic stop.2 Almost onethird of black drivers indicated that they believed they

were wrongfully stopped, compared with only sixteen

percent of white drivers who raised the same concern.3

Studies of police practices, as well as recent

investigations by the U.S. Department of Justice

(DOJ) confirm that these suspicions are not

unfounded. Rather, as DOJ concluded in its report on

the Baltimore Police Department, police officials

frequently stop black drivers without cause, and then

subject them to additional searches and arrests once

stopped. As investigation and litigation in Chicago, as

well as New York, have revealed, these concerns are

not limited to Baltimore.

Bureau of Justice Statistics, Traffic Stops (Apr. 15, 2018),

https://www.bjs.gov/index.cfm?tid=702&ty=tp.

3 Id.

Given this background, the extensive nature of

parking regulation in most metropolitan areas – big

and small – and the frequency at which parking

violations occur, an extension of Whren to civil parking

violations could prove disastrous. At a minimum, it

would lead to the unnecessary detention of countless

Americans – many of whom would be black.

Compounding matters, these victims would be

largely helpless to seek redress under the Equal

Protection Clause – the primary constitutional

protection for victims of racial profiling. Given the

requirement that individuals present specific evidence

of discriminatory intent, most victims of racial

profiling are unable to advance such claims

successfully. Officers, knowing that it could subject

them to potential liability, rarely admit that their

decisions were motivated by discriminatory intent,

and even when they do, victims generally do not have

access to these admissions.

Accordingly, were the Court to expand Whren to

immunize police officials’ decisions to stop individuals

suspected of civil parking violations, dangerous

consequences would ensue. As we have seen over the

last three years, and as many African-American

drivers – Walter Scott, Sandra Bland, and Levar

Jones, among others – have experienced, this would be

no small matter.

ARGUMENT

AN EXTENSION OF WHREN BEYOND

TRAFFIC VIOLATIONS WOULD GIVE

POLICE

OFFICIALS

UNCHECKED

AUTHORITY TO STOP INDIVIDUALS.

The expansion of Whren v. United States4 to

civil parking violations would constitute a repudiation

of the Fourth Amendment by providing officers

virtually unchecked discretion to stop individuals.

Giving the extensive scope of parking regulations in

most metropolitan areas, as well as the robust nature

of parking enforcement, were officers authorized to

stop individuals suspected of civil parking violations,

disastrous consequences would result.

A brief survey of the extensive regulation of

parking in Milwaukee – the City from which this case

arises – proves this point. The host of parking

violations in the city include parking in an

intersection, in a crosswalk, in a safety zone, on a

sidewalk, alongside a highway excavation, in a loading

zone, in an alley of a business district, in a recreational

area, in a taxi stand, on public property without a

permit and many others, including the infraction in

this case – parking less than fifteen feet from a

crosswalk.5 The majority of these offenses should

result in a fine of between twenty and sixty dollars—

not a stop by a police official.6 These provisions do not

exist simply to warn; they are vigorously enforced. In

2014, the city of Milwaukee generated $21,344,212 in

revenue from parking violations.7

4 Whren v. U.S., 517 U.S. 806 (1996).

5 Types and Costs of Parking Citations,͒Official Website of the

City

Milwaukee,

http://city.milwaukee.gov/ParkingServices/ParkingCitations/Par

king-Citation-Types.htm#.WsU4MmbMzwc.

6 Id.

7 Dave Begel, Parking Tickets Are a Nightmare of Epic

(Aug.

28,

2014),

Proportions,

ONMILWAUKEE

This situation is not unique to Milwaukee. In

Washington, DC, where Amicus and many of its clients

are located, the District processed over 1.5 million

parking tickets during the 2016 fiscal year.8 Similarly,

during the 2015 fiscal year, the city of Los Angeles

issued over 2.4 million parking citations.9 Likewise, in

2013, New York, Los Angeles and Chicago each

collected more than $175 million in parking

violations,10 with New York alone collecting more than

$534 million.11

These numbers are not limited to the nation’s

largest cities. In Raleigh, a city with a population of

less than 469,000, more than 80,000 parking tickets

were issued in 2016.12 Again, most of these violations

were for relatively trivial offenses which pose little or

no danger to public safety. Over 31,000 of the tickets

were issued for expired parking meters; approximately

17,000 tickets were issued to individuals whose

vehicles were parked in no parking zones; and almost

7,000 were issued to individuals who exceeded the

https://onmilwaukee.com/buzz/articles/parkingticketnightmare.h

tml.

8 Nick Ianelli, DC Issued ‘Unparalleled’ Number’ of Traffic Tickets

Last Year, WTOP, Mar. 9, 2017, https://wtop.com/dctransit/2017/03/dc-issued-unparalleled-number-traffic-ticketslast-year/.

9 Top Ten Cities with Highest Revenues from Parking Violations,

Parking

Panda

(July

23,

2015),

https://www.parkingpanda.com/blog/post/top-10-cities-withhighest-revenues-from-parking-violations.

10 Id.

11 Id.

12 Diane Wilson, 80,000+ Parking Tickets Issued in Raleigh Last

Year, ABC NEWS (May 11, 2017), http://abc11.com/news/80000+parking-tickets-issued-in-raleigh-last-year/1980768/.

amount of time they could remain parked in a

particular area.13

The government may legitimately ticket cars for

each of these offenses; however, any danger they pose

does not justify a stop. While some may question

whether officers would actually stop individuals for

each of these relatively trivial offenses, police officials’

actions post-Whren justify these concerns. Courts

have upheld officers’ decisions to detain motorists in

increasingly unusual and questionable circumstances.

These include: a) stopping a motorist who fails to

signal when entering or leaving a parking spot, even if

no other traffic is present;14 b) failing to signal during

a lane shift or crossing a marked line “when there is

no other traffic in sight”;15 and c) driving three miles

over the speed limit.16 Courts have gone as far as to

interpret minor traffic violations to include acts

unrelated to the movement of a vehicle, but rather the

physical condition of the vehicle while moving. For

13 Id.

14 See People v. Haywood, 944 N.E.2d 846 (Ill. App. Ct. 2011)

(upholding arrest based on statute that required a turn signal

when leaving a parallel-parking spot); State v. Brunner, No.

2007CA00285, 2008 WL 4118902, at *1 (Ohio Ct. App. Aug. 29,

2008) (upholding a stop in violation of Canton ordinance

requiring motorist to signal when moving toward the curb to

park).

15 See Dods v. State, 240 P.3d 1208 (Wyo. 2010) (holding

defendant’s one instance of crossing the fog line by approximately

eight inches for approximately five seconds violated the “single

lane of travel statute”); State v. Batchili, 865 N.E.2d 1282 (Ohio

2007) (crossing over marked lines violated R.C. 4511.33 which

constitutes a minor misdemeanor).

16 United States v. Harvey, 16 F.3d 109 (6th Cir. 1994).

example, courts have determined that the level of tint

on a driver’s car justifies a stop.17

Given the extensive nature of parking

regulation in most metropolitan areas, as well as the

frequency at which violations occur, and individuals

are cited for such, authorizing police officials to stop

individuals who commit civil parking violations would

constitute a massive and dangerous extension of

Whren which, more than likely, would result in the

additional and unnecessary detention of large groups

of Americans.

II.

AN EXTENSION OF WHREN WOULD

DISPROPORTIONATELY

IMPACT

AFRICAN AMERICANS.

Like other facially neutral policies that vest

police officials with vast discretion to stop and, if

necessary, detain individuals, an extension of Whren

to parking violations would disproportionately impact

African-Americans. As we have seen, in the traffic

context, the consequences could be serious and

potentially deadly.

17 See, e.g., United States v. Stafford, No. 4:10-CR-75-FL, 2011 WL

2358058, at *4 (E.D.N.C. June 9, 2011) (“[P]olice officers had

probable cause to initiate a traffic stop based on a suspected

window-tinting violation . . . ”); United States v. Matias-Maestres,

738 F. Supp. 2d 281, 293 (D.P.R. 2010) (“[T]he officers’

observation of the dark tint of the Ford Ranger’s windows gave

them probable cause to pull over the vehicle in order to

investigate a possible violation of Puerto Rico traffic law. Thus,

any ulterior motive of the officers for stopping the pickup is

irrelevant to the stop’s constitutionality.”); see also United States

v. Callarman, 273 F.3d 1284 (10th Cir. 2001) (upholding a stop

on the ground that the officer observed a twelve-inch crack in the

windshield).

A. Police Disproportionately Stop AfricanAmerican Drivers.

As Justice Sotomayor has stated, “[I]t is no

secret that people of color are disproportionate victims

of [police] scrutiny.”18 This is particularly true in the

context of traffic stops. On average, police officials

stop more than 20 million individuals every year.19

Researchers at Stanford University conducted a four

year study which analyzed disparities in police

interactions across twenty states.20 After controlling

for other factors such as age, stop time, and location,

researchers found that African Americans were

consistently stopped by police at a higher rate than

their white and Hispanic counterparts.21 Out of the 60

million police stops assessed, the study concluded that

African Americans were consistently cited, searched,

and arrested more often than white drivers.22

These findings were recently reaffirmed in a

comprehensive investigation of the Baltimore Police

Department (BPD) by the U.S. Department of Justice

(DOJ): “BPD . . . stops African American drivers at

disproportionate rates. African Americans accounted

for 82 percent of all BPD vehicle stops, compared to

only 60 percent of the driving age population in the

18 Utah v. Strieff, 579 U.S. __, 136 S. Ct. 2056, 2070 (Sotamayor,

J., dissenting) (citing MICHELLE ALEXANDER, THE NEW JIM CROW,

95-136 (2010)).

Stanford University Open Policing Project, Findings,

https://openpolicing.stanford.edu/findings/.

20 E. Pierson, et al., A Large-Scale Analysis of Racial Disparities

in Police Stops Across the United States, Stanford University

(Aug. 2017).

21 Id. at 5.

22 Id. at 6-7.

City and 27 percent of the driving age population in

the greater metropolitan area.”23

Police officials’ actions are often driven by the

false and discriminatory belief that stopping

individuals of color is appropriate because they are

more likely to possess narcotics. Lieutenant Ernest

Leatherbury, a spokesman for the Maryland State

Police Department, reasoned that stopping blacks at a

disproportionate rate was an “unfortunate byproduct

of sound policing” not racism.24 Likewise, the former

superintendent of the New Jersey State Police, Carl

Williams, stated that it is “most likely a minority

group that’s involved with [narcotics].”25 The end

result is that “[s]kin color becomes evidence, and race

becomes a proxy for general criminal propensity.

[Anyone] who is African-American is automatically [a]

suspect during every drive to work, the store, or a

friend’s house.”26

23 U.S. Dep't of Just. C. R. Div., Investigation of the Baltimore

City Police Department (2016) [hereinafter DOJ Baltimore

Report], at 8, https://www.justice.gov/opa/file/883366/download.

24 Michael Fletcher, Driven to Extremes: Black Men Take Steps to

Avoid Police Stops, WASH. POST, Mar. 29, 1996, at A13.

25 David A. Harris, The Stories, the Statistics, and the Law: Why

"Driving While Black" Matters, 84 MINN. L. REV. 265, 268 (citing

Joe Donahue, Boss Warns Troopers: Don't Target Minorities,

NEWARK STAR-LEDGER, Feb. 28, 1999, at 1.). Superintendent

Williams was later fired by Governor Christie Whitman for those

and other remarks in that interview. See Kathy Barrett Carter

& Ron Marsico, Whitman Fires Chief of State Police, NEWARK

STAR-LEDGER, Mar. 1, 1999, at 1; Robert D. McFadden, Whitman

Fires Police Chief Over Comments on Race, N.Y. TIMES, Mar. 1,

1999, at A23.

26 See Harris, supra note 25 at 268.

Not only are stops based on a driver’s race

discriminatory, the assumption underlying them is

patently false. Researchers comparing data from stops

across nine states – Colorado, Connecticut, Illinois,

North Carolina, Rhode Island, South Carolina, Texas,

Washington, and Wisconsin – found that searches of

black drivers stopped were no more likely to result in

the discovery of narcotics.27 Additionally, the study

found that a stop and search of a Hispanic driver was

less likely to uncover narcotics than a stop and search

of a white driver.28 Finally, the same study concluded

that police officials typically relied on a lower

evidentiary threshold when determining whether to

stop black and Hispanic drivers, as opposed to white

drivers.29

B. Police

Disproportionately

Stop and Search African

Americans Outside of the

Traffic Context.

Unfortunately, these disparities have not been

limited to the traffic context, but are endemic in other

areas in which police officials have been vested with

broad authority to stop individuals. As the United

States Department of Justice recently found, these

disparities are particularly present in the stop and

frisk context.

After completing a study of the City of

Baltimore’s policing practices, the Department found

that racial disparities in policing were present at every

27 See E. Pierson, supra note 20, at 9.

28 Id. at 9.

29 Id. at 11.

stage of the policing process from stops to arrests to

the use of force.30 For example, police officials in

Baltimore were three times more likely to stop

African-American residents than their white

counterparts.31

As in the traffic context, the Department of

Justice concluded that these disparities were not

justified by differences in criminal activity between

white and African-American individuals. BPD officers

recorded over 300,000 pedestrian stops between

January 2010 and May 2015.32 “These stops were

concentrated in predominantly African-American

neighborhoods and often lack[ed] reasonable

suspicion.”33 Only 3.7 percent of pedestrian stops

resulted in officers issuing a citation or making an

Many of those arrested based upon

arrest.34

pedestrian stops had their charges dismissed upon

initial review by either supervisors at BPD’s Central

Booking or local prosecutors.35 The report continued:

BPD’s pedestrian stops are concentrated

on a small portion of Baltimore residents.

BPD made roughly 44 percent of its stops

in two small, predominantly AfricanAmerican districts that contain only 11

percent of the City’s population.

30 DOJ Baltimore Report, supra note 23 at 3.

31 Id. at 7 (“BPD disproportionately stops African-American

pedestrians. Citywide, BPD stopped African-American residents

three times as often as white residents after controlling for the

population of the area in which the stops occurred.”).

32 Id. at 5.

33 Id.

34 Id. at 6.

35 Id.

Consequently, hundreds of individuals –

nearly all of them African-American –

were stopped on at least 10 separate

occasions from 2010-2015. Indeed, 7

African-American men were stopped

more than 30 times during this period.36

Rather than being the result of any difference in

criminal activity between African Americans and

whites, the report found the difference was the product

of “a policing strategy that, by its design, led to

differential

enforcement

African-American

communities.”37 A common form that this strategy has

taken in Baltimore, as well as other cities, is “broken

windows policing” – the vigorous enforcement of

quality of life crimes such as graffiti, loitering,

prostitution, and drug use based on the

unsubstantiated belief that a reduction in such

offenses would lead to a reduction in more serious

offenses, as well.38

36 Id. These problems are not limited to Baltimore. According to

an investigation by the American Civil Liberties Union of Illinois,

the Chicago Police Department, likewise, stops and frisks African

Americans without cause. See Letter from Harvey Grossman,

ACLU of Illinois, to Rahm Emanuel, Mayor, City of Chicago, Jan.

15, 2013, at 6, https://www.aclu-il.org/sites/default/files/acluletter-to-mayor-sidewalk-stop-and-frisks-1-15-13.pdf (recounting

litigation by three African Americans against the Chicago Police

Department which resulted in reform and data monitoring

regarding the use of stop and frisk).

37 DOJ Baltimore Report, at 8.

38 S. Vedantam, C. Benderev, T. Boyle. How A Theory of Crime

and Policing Was Born, And Went Terribly Wrong. NPR, Nov. 1,

2016,

https://www.npr.org/2016/11/01/500104506/brokenwindows-policing-and-the-origins-of-stop-and-frisk-and-how-itwent-wrong.

In a class action lawsuit against the state of

New York, plaintiffs argued that the aggressive

policing

policies

were

“selective[ly]

and

disproportionately

enforced

minority

The state settled for approximately

communities.”

$75 million for illegally issuing at least 900,000

criminal summons without legal justification.40 Police

officials in Baltimore have employed the practice in a

similarly discriminatory fashion.41

C. The Increase in Stops of

African Americans Could Have

Drastic Consequences.

The likely increase in the stopping of AfricanAmerican motorists would be no small matter. As DOJ

found in Baltimore, stops are often only the first step

in a series of escalating and intrusive actions:

Even where an initial frisk is justified, we

found that officers often violate the

Constitution by exceeding the frisk’s

permissible scope. We likewise found

39 Benjamin Weiser, New York City to Pay Up to $75 Million Over

Dismissed Summonses, N.Y. TIMES, Jan. 23, 2017,

https://www.nytimes.com/2017/01/23/nyregion/new-york-cityagrees-to-settlement-over-summonses-that-weredismissed.html.

40 Id. See also Josmar Trujillo, Broken Windows Breaks the Bank,

HUFFINGTON

POST,

Jan.

30,

2018,

https://www.huffingtonpost.com/josmar-trujillo/broken-windowsbreaks-the_b_14487326.html.

41 Timothy Williams and Joseph Goldstein, In Baltimore Report,

Justice Dept. Revives Doubts About Zero-Tolerance Policing, N.Y.

TIMES,

Aug.

10,

2016,

https://www.nytimes.com/2016/08/11/us/baltimore-police-zerotolerance-justice-department.html.

many instances in which officers strip

individuals

without

legal

justification. In some cases, officers

performed degrading strip searches in

public, prior to making an arrest, and

without grounds to believe that the

searched individuals were concealing

contraband on their bodies.42

Unfortunately, these are the least of the harms

that stopped individuals may suffer. As recent events

have shown, once police stop and search an African

American – especially if they have reason to believe

their stop was unjustified or the result of

discrimination – the risk increases that the encounter

may result in the use of physical force. The following

vignettes recount some of the most recent and tragic

occurrences.

i. North

Charleston,

South

Carolina: The Death of Walter

Scott

On April 4, 2015 Officer Michael Slager of the

North Charleston Police Department stopped Mr.

Walter Scott’s vehicle because of an alleged taillight

violation.43 During the encounter, Mr. Scott took off

running, attempting to flee from the scene of the

stop.44 Officer Slager ordered Mr. Scott to stop, and

when he did not, Officer Slager shot him in the back

42 DOJ Baltimore Report, supra note 23 at 6.

43 Keith O'Shea, Walter Scott Shooting: Officer Said His Mind

Was

'Spaghetti',

CNN,

Nov.

30,

2016,

https://www.cnn.com/2016/11/29/us/michael-slager-murder-trialwalter-scott/index.html.

44 Id.

five times, killing him.45 During his trial for use of a

weapon during the commission of a violent crime and

obstruction of justice, Officer Slager testified that he

shot Mr. Scott after a physical confrontation during

which Mr. Scott prevailed.46 However, video footage of

the incident revealed that Mr. Scott was more than

seventeen feet away from Officer Slager when he

opened fire and more than double that distance when

he finished firing.47 Officer Slager later admitted that

Mr. Scott did not pose a threat to him when he opened

fire and that, in fact, Mr. Scott was harmlessly fleeing,

some distance away.48 Officer Slager was convicted

and received a 20-year prison sentence for Mr. Scott’s

death.49

ii. Waller County, Texas: The

Death of Sandra Bland

On July 13, 2015, Ms. Sandra Bland failed to

use her turn signal at the proper juncture while

driving.50 Once Officer Brian Encinia stopped Ms.

Bland’s vehicle, he ordered her to put out the cigarette

she was smoking. When she refused, Officer Encinia

ordered Ms. Bland out of the vehicle.51 After she

45 Id.

46 Id.

47 Id.

48 Id.

49 Alan Binder, Michael Slager, Officer in Walter Scott Shooting,

Gets 20-Year Sentence, N.Y. TIMES, Dec. 7, 2017,

https://www.nytimes.com/2017/12/07/us/michael-slagersentence-walter-scott.html.

50 Carma Hassan & Holly Yan, Sandra Bland's Family Settles for

$1.9M in Wrongful Death Suit, CNN, Sept. 15, 2016,

https://www.cnn.com/2016/09/15/us/sandra-bland-wrongfuldeath-settlement/index.html.

51 Id.

refused, Officer Encinia drew his taser, pointed it

towards Ms. Bland, and stated “I will light you up! Get

out! Now!”52 After she exited the vehicle, Officer

Encinia violently forced Ms. Bland to the ground.53

When Ms. Bland asked Officer Encinia why he had

arrested her, he refused to answer.54 Ms. Bland was

subsequently booked and transported to the Waller

County Jail where, three days later, she was found

hanging in her cell.55 In his report, Officer Encinia,

stated “Force was used to subdue Bland to the ground,

after which Ms. Bland continued to fight back.”56 A

Waller County grand jury later indicted Office Encinia

for perjury and the Texas Department of Public Safety

subsequently fired him.57 The mystery surrounding

Ms. Bland’s controversial arrest and subsequent death

incited a wrongful death suit by Ms. Bland’s family

and a $1.9 million settlement with the Waller County

Jail and the Texas Department of Public Safety.58 To

this day, the motivations behind Ms. Bland’s arrest

remain unknown. The only certainty is that if not for

the traffic stop and Officer Encinia’s subsequent

actions, Ms. Bland would still be alive.

52 Molly Hennessy-Fiske and Michael Muskal, 'I Will Light You

Up,' Texas Officer Warns Sandra Bland in Video of Controversial

Arrest,

L.A.

TIMES,

July

21,

2015,

http://www.latimes.com/nation/la-na-sandra-bland-jail-death20150721-story.html.

53 See Hassan, supra note 50.

54 Id.

55 Id.

56 Id.

57 Id.

58 Christine Hauser, Sandra Bland’s Family Settles 1.9 Million

Civil

Suit,

N.Y.

TIMES,

Sept.

15,

2016,

https://www.nytimes.com/2016/09/16/us/sandra-bland-familysettlement-19-million-lawsuit.html.

iii. Columbia, South Carolina:

The Shooting of Levar Jones

In September 2015, Mr. Levar Jones, an

African-American man, was stopped by Officer Sean

Groubert for not wearing a seatbelt while driving.59

Mr. Jones complied with Officer Groubert’s request

and pulled into a nearby gas station, where Mr. Jones

exited his car.60 Mr. Jones reached into his car to grab

his wallet, but before he could finish, Officer Groubert

opened fire.61 Officer Groubert continued firing,

unloading four shots into Mr. Jones as he backed away

with his hands raised.62 One of the bullets struck Mr.

Jones in the hip, causing him to collapse to the ground

where he asked the officer “what did I do?”63 Officer

Groubert attributed his decision to fire to his

misreading of Mr. Jones’ body language.64 Officer

Groubert then handcuffed Mr. Jones and left him on

the ground bleeding until an ambulance arrived.65

Officer Groubert is currently serving a twelve-year

prison sentence for aggravated assault and battery.66

What started as a traffic stop for supposedly failing to

wear a seatbelt almost resulted in Mr. Jones’

unnecessary death.

59 Harriet McLeod, Ex-South Carolina Trooper Sent to Prison for

Shooting Unarmed Black, REUTERS, Aug. 15, 2017,

https://www.reuters.com/article/us-south-carolina-shooting/exsouth-carolina-trooper-sent-to-prison-for-shooting-unarmedblack-motorist-idUSKCN1AV28J.

60 Id.

61 Id.

62 Id.

63 Id.

64 Id.

65 Id.

66 Id.

III.

THE VICTIMS WOULD BE LARGELY

POWERLESS

PROTECT

THEMSELVES.

The Court in Whren advised that the proper

means of redress for victims of discrimination is the

Equal Protection Clause of the Fourteenth

Amendment.67 However, largely as a result of the

Fourteenth Amendment’s requirement that victims

present proof of discriminatory purpose, the Equal

Protection Clause provides insufficient protection to

victims of racial discrimination. This requirement,

combined with the myriad of other procedural and

substantive barriers to relief, leaves victims of racial

discrimination virtually powerless.

The Fourteenth Amendment states that “No

State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.”68 The

purpose of the Equal Protection Clause is to prevent

official conduct that discriminates on the basis of

race.69 However, a defendant who alleges an equal

protection violation must show the existence of

purposeful discrimination.70 Discriminatory purpose

implies more than intent as volition or intent as

awareness of consequences.71 It implies that the

officer selected or reaffirmed a particular course of

action because of and not merely in spite of its adverse

effects on that individual defendant.72

67 Id. at 812.

68 U.S. CONST. Amend. XIV.

69 Washington v. Davis, 426 U.S. 229, 239 (1976).

70 McCleskey v. Kemp, 481 U.S. 279, 292 (1987).

71 Id. at 298.

72 Id.

It is particularly difficult, if not impossible, to

make a showing of discriminatory intent in the traffic

context.

As Justice Stevens stated in Davis,

frequently, the only probative evidence available is

“evidence of what actually happened rather than

evidence describing the subjective state of mind of the

actor.”73 As an initial matter, officers are careful not

to express their true motivations for a stop, knowing

that it may subject them to liability.74 Even if an

officer does express discriminatory intent, it is

unlikely that the victim will be privy to such as he or

she will be in his or her respective vehicle. Nor is it

any more likely that an officer will admit afterwards

that their actions were racially motivated. Officers

will instead suggest that the motorist was chosen

based on other factors such as the type of car being

driven, the age of the car, temporary license plates,

cars traveling or having license plates from known

drug-source states, tinted windows, or radar

detectors.75

73 Washington, 426 U.S. at 253 (Stevens, J., concurring).

74 See Randall S. Susskind, Race, Reasonable Articulable

Suspicion, and Seizure, 31 AM. CRIM. L. REV. 327, 341 (1994)

(asserting that “[t]he problem with trying to prove that police

officers treat racial minorities differently is that it is almost

impossible to find concrete evidence of the discrimination” and

that police officers and judges rarely admit when race is used as

a factor in the decision-making process).

75 See Patrick O'Driscoll, Drug Profile Lawsuit Settled; Minority

Motorists Stopped, DENVER POST, Nov. 10, 1995, at A1 (revealing

that the police use the following factors in deciding whom to stop

on the highway: race or ethnicity of the driver; temporary license

plates; vehicles from known drug-source states; tinted or

curtained windows; radar detectors; “visible” air fresheners; and

fast-food wrappers on the floor).

Unable to uncover such evidence, victims have

attempted to prove intent through the use of statistics

demonstrating that police officials in particular

jurisdictions disproportionately stop minorities for

traffic violations.76 However, victims often struggle to

acquire the necessary information due to a lack of

cooperation from police departments, as well as

insufficient resources to gather such evidence.77

Furthermore, courts have hesitated to accept

statistical information as proof of discriminatory

intent.78

The end result is that individual victims are

largely powerless to seek redress for discriminatory

stops given the lack of credible evidence available to

them.

76 See United States v. Avery, 137 F.3d 343, 356 (6th Cir. 1997)

(“Avery contends that he has statistical evidence from which the

district court should have inferred a discriminatory selection of

persons, including himself, for drug investigation and consensual

encounter.”); see also State to Challenge Ruling Troopers Targeted

Drivers, THE RECORD, (Northern NJ), May 2, 1996, at A3

(reporting that a state court judge relied on statistics in his

decision that state troopers targeted minority motorists for traffic

stops on the New Jersey Turnpike).

See Dianna Hunt, Ticket to Trouble/Wheels of

Injustice/Certain Areas are Ticket Traps for Minorities, HOUS.

CHRON., May 14, 1995, at 1 (discussing the difficulty in obtaining

statistics from the Texas Department of Public Safety concerning

minorities and traffic violations).

78 See Burgis v. New York City Dept. of Sanitation, 798 F.3d 63,

69 n.5 (2d Cir. 2015) (“We have held that statistics alone are not

sufficient to allege discriminatory intent in § 1981 or Equal

Protection cases brought by an individual only on her own behalf

or in cases brought against a state official in her individual

capacity[.]” (internal citations omitted)); United States v. Bullock,

94 F.3d 896, 899 (4th Cir. 1996) (refusing to consider the arresting

officer's past history of stopping motorists on the basis of race).

CONCLUSION

For the reasons stated, Amicus respectfully

requests that the Court grant petitioner’s request for

certiorari.

Respectfully submitted,

AJMEL QUERESHI

Counsel of Record

HOWARD UNIVERSITY

SCHOOL OF LAW

2900 Van Ness St., N.W.

Washington, DC 20008

(202) 216-5574

Ajmel.Quereshi@law.howard.edu

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.