Abundant Evidence of Discriminatory Practice at Port of Entry and by Officer Insufficient to Establish Discrimination, Says Divided Panel

Blackwell v. Strain, 2012 WL 3939917 (9/11/12) (N.M.) (unpub'd) - The plaintiff did not establish Officer Ben Strain was motivated by a discriminatory purpose when he decided to perform a Level II inspection on the plaintiff's tractor-trailer at the Lordsburg, NM Port Of Entry (POE). The statistical evidence of the officer's racism was not enough without other evidence of discriminatory purpose and there was no such additional evidence.

First, data showing vehicles operated by Black folks were inspected and searched at the POE at a much higher rate than vehicles operated by non-Blacks, (51.7% vs. 28.3%), is irrelevant to Officer Strain's particular state of mind. Second, data showing that the % of Blacks Strain arrests is higher than the % of Black truckers going through the POE, (30.6 vs. 14.6), doesn't show racism, absent a showing of what % of non-Blacks passing through the POE could have been arrested [good luck making that showing]. We can't presume that arrestable offenses are committed proportionately by all races. Third, the 10th was also not impressed by evidence that the % of Strain's Black arrestees at the POE are higher than the % of his Black arrestess when he's patrolling and presumably can't tell the race of the driver as easily. Although the 10th says this statistic is "curious," it wasn't so clear Strain would have more trouble determining the driver's race while on patrol and patrol arrestees were not all truck drivers, thus screwing up any comparison. In any event, the stats were not so compelling to show intentional discrimination. Finally, evidence that on one day Strain gave a Level II inspection to all 3 Black truckers he inspected, but only a lower Level III inspection to the 2 Whites he inspected, while relevant, is not a large enough sample to make the evidence reliable.

The 10th is equally unimpressed by the non-statistical evidence, although it acknowledges circumstantial evidence alone can show racism. The record did not support the Judge's conclusion that Strain assumed Black truckers are more likely than Whites to transport drugs. Strain's mistreatment of the plaintiff [making him wait long, accusing him of DUI, giving him a breathalyzer test, pressuring him to sign the citation, and acting with a hostile, aggressive, unprofessional and confrontational manner] did not show Strain acted this way because the plaintiff is Black. He may treat everyone this badly. And the presence of alcohol in the truck justified some of Strain's conduct. Evidence that other Black truckers felt discriminated against at the POE was irrelevant unless Strain was the officer who harassed them. That Black truckers were mistreated by Strain didn't show racial motivation because Strain may have treated non-Blacks just as badly. Evidence that agents and FPDs noticed almost all drug arrestees at the POE were Black did not show Strain in particular was racially motivated. The 10th noted there was "a generous amount" of evidence regarding discrimination at the POE, but evidence of Strain's racism was "entirely lacking."

Judge Holloway dissented. He chastises the majority [Murphy and Gorsuch] for discounting the district court's factual assumptions, which ordinarily in the summary-judgment appeal posture of a case is not done. He also thought evidence of Strain's treatment of other Black drivers was relevant.