In denying a petition for rehearing en banc, two of eleven judges of the Eighth Circuit question when pretext can be raised. Saunders v. Thies, 2022 U.S. App. LEXIS 25527 (8th Cir. Sep. 12, 2022), Grasz and Smith dissenting from the denial:
Because I believe this case presents important issues that should be addressed by the court sitting en banc, I would grant the petition for rehearing.
One issue is the applicable standard for equal protection claims alleging selective law enforcement based on race. When the district court granted summary judgment to the defendants on the plaintiff’s equal protection claims alleging racially discriminatory law enforcement it did so by relying on and applying a test that requires the challenged enforcement action to have been undertaken “solely on the basis of race.” I question whether this is an erroneous standard. Long before Clark v. Clark, 926 F.3d 972 (8th Cir. 2019) and Gilani v. Matthews, 843 F.3d 342 (8th Cir. 2016), this court held that claimants must only show the challenged enforcement action was “motivated by a discriminatory purpose.” United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996). See also Johnson v. Crooks, 326 F.3d 995, 1000 (8th Cir. 2003); United States v Brown, 9 F.3d 1374, 1376 (8th Cir. 1993). Not only does this test pre-date the more recent formulation, but it seems to be consistent with Supreme Court precedent. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977); United States v Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996).
The formulation of the applicable standard is of material importance to claimants. The difference between “solely on the basis of race” and “motivated by” race could be game-changing. When it comes to qualified immunity analysis, the first prong of the analysis requires identification of a constitutional violation and the second entails a determination of whether the right alleged to have been violated is “clearly established.” If race must be the “sole” basis of allegedly discriminatory law enforcement, an equal protection claim will rarely ever succeed. As in a Fourth Amendment unreasonable seizure claim, all that a rogue officer motivated by race would need to do is identify some other objectively sufficient justification for a stop—perhaps a small crack in a windshield or a defective license plate light bulb. See United States v. Benitez, 613 F. Supp. 2d 1099, 1101 (S.D. Iowa 2009) (“[E]ven if the decision to initiate a traffic stop was based upon a defendant’s race, no Fourth Amendment violation has occurred so long as probable cause existed for the stop.”). The “sole basis” test would appear to improperly morph equal protection analysis into something akin to Fourth Amendment review.
The question may be asked whether this is the ideal case in which to address this long-festering issue. Maybe not. But if not now, when? This uncertainly has gone unaddressed by our court for far too long, leaving both the public and the district courts to guess what the law is. Some might also point out this has all-to-familiar consequences for the second prong of qualified immunity analysis. How can the law ever be clearly established if we refuse to clarify the correct legal standard? From the public’s perspective this may produce a cynical perception that the law is a “heads I lose, tails you win” game. This has a necrotizing effect on the rule of law. Our court should give no credence to the notion that—however rare—selective enforcement of the law for “driving while black” is in any way tolerated or systematically protected by qualified immunity.
Perhaps there is some very reasonable response to all this. If so, I say that is all the more reason the case should be re-heard and the issues resolved in a reported en banc opinion.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)