Williams v. Hansen

KING, Circuit Judge,

dissenting:

The majority today concludes that, consistent with the precepts of equal protection, a chief of police who has received complaints of racial discrimination within his department may select all and only the alleged victims of the discrimination — the department’s African-American officers— as targets of an investigation into the complaints. Even if the selection of the African-American officers under these circumstances did not constitute an express racial classification, Chief Hansen nonetheless should not be awarded qualified immunity: Williams and Reaves have alleged specific facts indicating that Hansen’s facially neutral classification was both injurious and motivated by discriminatory animus. Under clearly established principles of equal protection, these allegations, if proven, set forth valid claims for the deprivation of a constitutional right. Thus, in my judgment, the district court correctly held that Hansen had not carried his burden of establishing his entitlement to qualified immunity, and it properly denied his motion for summary judgment. With all respect to my distinguished colleagues in the majority, I dissent.

I.

In concluding that Hansen is entitled to summary judgment on the basis of qualified immunity, the panel majority engages in a traditional Adarand analysis, assessing whether Hansen employed an expressly discriminatory classification. Its opinion reasons that “the black and white officers for the purposes of that matter into which Hansen was inquiring, ie., was there discrimination against black officers in his department, were not similarly situated.” Supra at 576. As a result, “Hanson could treat the groups differently in directing that officers be interviewed without violating the Equal Protection Clause,” and Williams and Reaves “do not set forth valid claims for the deprivation of a constitutional right.” Supra at 576. According to the majority, there was no express racial classification because Hansen selected not all and only the African-Americans, but rather all and only the alleged victims of intradepartmental discrimination. That those alleged victims were all African American officers did not, on this reasoning, render the classification expressly discriminatory.

The majority opinion goes on to note that “even if plaintiffs’ claims charged that officers who in fact were similarly situated were treated differently on the basis of their race, ... the alleged disparate treatment would survive a strict scrutiny analysis.” Supra at 578. Finally, it holds in the alternative that “the equal protection right that plaintiffs advance was not clearly established when Hansen directed that the black officers be interviewed [since] it would be a remarkable extension of equal protection principles to hold that the very act of questioning the members of a racial group as to whether they perceived discrimination against the members of that group was in itself unlawful.” Supra at 581.

The majority’s analysis, while perhaps correct on its own terms, leaves unexplored an important aspect of the officers’ allegations against Hansen. As its opinion acknowledges, the “plaintiffs question the bona fides of Hansen’s stated motive for pursuing the inquiry, ie., that he would not tolerate discrimination within the department and desired to take any necessary corrective measures.” However, the panel majority dismisses the issue of intent out of hand, stating that “[t]he existence of a factual dispute regarding Hansen’s motives does not preclude us from entertaining this appeal even though we *583cannot resolve disputes of fact.” Supra at 574-575.

In my assessment, the dispute of fact as to Hansen’s motives in selecting all and only the African-American officers in his department as targets of his investigation cannot so easily be brushed aside. The plaintiffs may fairly be understood to allege that, even if Hansen employed a facially neutral policy in responding to complaints of discrimination by interviewing all and only those who were within the class of purported victims, that policy both was motivated by discriminatory animus toward African-Americans and adversely effected this group. Thus, even if the majority is correct to conclude that Hansen’s selection of interviewees was facially neutral, it remains to be determined whether he is entitled to the protection of qualified immunity.

II.

As the majority opinion acknowledges, supra at 574, Williams and Reaves were entitled to prevail against Hansen’s motion for summary judgment only if: (1) they had alleged facts setting forth valid claims for the deprivation of a constitutional right, Saucier v. Katz, 538 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); and (2) the right was clearly established at the time of the alleged violation such that a reasonable person would have known of it, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

Taking the facts, as we must, in the light most favorable to the parties asserting the injury, Williams and Reaves have alleged the violation of a clearly established constitutional right. Twenty-six years ago, the Supreme Court made clear that a facially neutral administrative action that disparately impacts members of a particular racial group will violate the Equal Protection Clause if the plaintiff demonstrates that the .action was motivated, at least in part, by an “invidiously discriminatory” intent. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (remanding equal protection challenge to local authorities’ refusal to rezone land to permit racially integrated low-income housing for inquiry into discriminatory intent). The protection against invidious discrimination that hides behind facially neutral policies has become only more firmly entrenched. See, e.g., Shaw v. Reno, 509 U.S. 630, 644, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993); Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985); Rogers v. Lodge, 458 U.S. 613, 618, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982); Smith v. Town of Clarkton, 682 F.2d 1055, 1066 (4th Cir.1982); see also Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 819 (4th Cir.1995). Because the plaintiffs have made out valid claims for the denial of a clearly established constitutional right, the district court correctly denied Hansen’s motion for summary judgment on the basis of qualified immunity.

A.

The Fourteenth Amendment to the Constitution declares that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To state a race-based claim under the Equal Protection Clause, a plaintiff must allege that a government actor intentionally discriminated against him on the basis of his race. See id. at 439-40, 105 S.Ct. 3249; Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); In re *584Long Term, Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 471 (4th Cir.1999); Sylvia Dev. Corp., 48 F.3d 810, 818-19.

There are several ways for a plaintiff to make out a valid claim of unconstitutional discrimination. A plaintiff can point to a law or policy that expressly classifies persons on the basis of race. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213, 227-29, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Or, a plaintiff can identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). A plaintiff can also allege that a facially neutral statute or policy that is neutrally applied nonetheless has an adverse effect on a protected group, and that the adoption of the statute or policy was motivated by discriminatory animus. See Arlington Heights, 429 U.S. at 264-65, 97 S.Ct. 555; see also Hunter, 471 U.S. at 233, 105 S.Ct. 1916 (holding that Alabama constitutional provision, which mandated disenfranchisement of those convicted of crimes of moral turpitude, violated equal protection, because provision was “motivated by a desire to discriminate against blacks on account of race”).

Regardless of which of these three forms of intentional discrimination is alleged, the Equal Protection Clause “does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes.” Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555 (emphasis added). Rather, a plaintiff need only establish that racial animus was one of several factors that, taken together, moved the decision-maker to act as he did. See Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 539 (6th Cir.2002) (holding that state trooper’s possession of some race-neutral basis for initiating investigation was insufficient, standing alone, to entitle trooper to qualified immunity from liability on plaintiff’s equal protection claims if plaintiff could demonstrate that trooper was partly motivated by discriminatory purpose).

Though a valid claim for a violation of equal protection need not allege discrimination as the defendant’s sole motive, it must allege the requisite discriminatory intent with more than mere conclusory assertions. Thus, to state valid claims for violation of equal protection and thereby to survive Hansen’s motion for summary judgment on the basis of qualified immunity, Williams and Reaves must put forward “specific, non-conclusory factual allegations that establish improper motive.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir.2001) (quoting Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (discussing plaintiffs pleading burden in face of defendant’s qualified-immunity-based summary judgment motion, in First Amendment retaliatory termination context)).

Even after a plaintiff has come forward with the requisite specific, non-conclusory factual allegations of an invidious discriminatory intent, determining whether official action was motivated by intentional discrimination remains “a sensitive inquiry.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. In delving in the minds of state officials, a court may look to “such circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. “[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [practice] bears more heavily on one race than another.” Washington, 426 U.S. at 242, 96 S.Ct. 2040. The Supreme Court has since provided further guidance regarding this “totality of the relevant facts” *585inquiry. First, and importantly, the Court has recognized that the direct impact of the challenged official action is frequently probative of why the action was taken, since people “usually intend the natural consequences of their actions.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (citing Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555). Other relevant considerations include: (1) the historical background of the decision, which may take into account any history of discrimination by the decisionmaking body or the jurisdiction it represents; (2) the specific sequence of events leading up to the particular decision being challenged, including any significant departures from normal procedures; and (3) contemporary statements by the decisionmaker. Arlington Heights, 429 U.S. at 266-68, 97 S.Ct. 555; see also Sylvia Dev. Corp., 48 F.3d at 819 (applying Arlington Heights to analyze intent in equal protection context); Talbert v. City of Richmond, 648 F.2d 925, 929 (4th Cir.1981) (same).

B.

To prevail on the merits of their equal protection claim, Williams and Reaves need only prove at trial that Hansen’s selection of the targets of his investigation was motivated in part by discriminatory intent.1 And at this qualified immunity stage of the suit, it is necessary only that they allege facts from which a jury could conclude that a part of Hansen’s motivation in selecting the targets of his investigation was discriminatory animus. Because they have made specific, non-con-clusory factual allegations, which, when viewed together and taken as true, raise a reasonable inference that the investigations were prompted at least in part by an illegal motive, Williams and Reaves are entitled to a trial on the merits of their equal protection claim.

The “important starting point” for assessing discriminatory intent under Arlington Heights is whether the challenged official action “bears more heavily on one race than another.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555 (citing Washington, 426 U.S. at 242, 96 S.Ct. 2040). Hansen’s purported policy of selecting for interviews only the alleged victims of in-tradepartmental discrimination bore not just more heavily on one race than another. By leading him to investigate all and only the African-American officers, Hansen’s policy bore exclusively on one race. Thus, under the first Arlington Heights criterion, Hansen’s decision to adopt the policy that he did strongly evinces a discriminatory intent.

Additional factors that bear on our inquiry include “[t]he historical background of the decision,” “[t]he specific sequence of events leading up [to] the challenged decision,” and “contemporary statements by [decisionmakers].” Id. at 267-68, 97 S.Ct. 555. Under these factors, the plaintiffs have alleged specific facts that would sup*586port a finding that Hansen acted with discriminatory intent when he chose to direct his investigation at the victims of possible intradepartmental discrimination.

Viewed in the light most favorable to the plaintiffs, both the historical and the immediate backgrounds of Hansen’s investigation bolster their allegations of discriminatory intent. As an historical matter, in February 1996, when the challenged investigation occurred, the City of Fayetteville was under a longstanding consent order to eliminate racial discrimination within its workforce. In the weeks and months preceding Hansen’s decision to conduct his investigation, a number of African-American police officers had become increasingly concerned that the Police Department was taking deliberate steps to impede the progress of African-American officers. To address these concerns, the officers had formed a group called “Officers for Equality.” In forming this group, the officers intended to oppose acts of discrimination regarding assignments, promotions, and training. The members of the group believed that the Department had deliberately failed to comply with the terms of the consent order, and they had contacted counsel to learn what legal action could be taken to force the City into compliance. Among the group’s concerns was their belief that Hansen had pressured African-American officers, over their objections and with threat of termination, to prepare false written statements attesting to the Department’s efforts to comply with the consent order, and asserting that the order was no longer necessary.

In addition to these facts, which suggest both historical and immediate racial discrimination within the Police Department, the plaintiffs note several events contemporaneous with the investigation that is the subject of dispute. From these events, a jury could fairly infer that Hansen holds a general hostility toward the African-American officers and their concerns. Hansen learned of the group “Officers for Equality” over the weekend prior to his decision to initiate the challenged, African-Americans-only investigation. According to the plaintiffs, the questioning that occurred during the interviews was designed to uncover the identities of the members of the group. Furthermore, after requiring all of the African-American officers to participate in interviews regarding their perceptions of discrimination within the Department, Hansen ordered disciplinary action against those among them who were unable to furnish proof to substantiate the very perceptions that they had been required to disclose. Then, in a follow-up memo on the Moyd/Shambley interviews, Hansen instructed his senior staff not only to look for evidence to support the concerns expressed by some of the African-American officers during the interviews, but also to look for ways to “discredit” the officers’ concerns.

As the district court observed, while the purpose of the Hansen’s investigation was “ostensibly to discern the existence or prevalence of discriminatory or racist practices or conduct in the Department,” “[i]t seems clear from defendants’ statement ... that the Department was not intent on investigating the perceptions of discrimination but rather intent on investigating what the defendants involved considered ‘lies.’” Williams v. Fayetteville, Mem. Op., 5:99-CV-449-BR(2), at 22 n. 15 (E.D.N.C. May 13, 2002). The “tortuous machinations employed to transform descriptions of perceived discriminatory or retaliatory conduct into ‘lies,’ ” id., lend further credence to the plaintiffs’ contention that Hansen ordered the African-Americans-only interviews with discriminatory intent.

*587These facts, taken together and in the light most favorable to the plaintiffs, are more than adequate to support an inference that Hansen’s facially neutral policy of directing his investigation at the purported victims of racial discrimination within the Department was motivated by invidious discriminatory animus. Having made the requisite specific, nonconclusory factual allegations in support of their equal protection claim, the question of motive becomes one for the jury. See Farm Labor Org. Comm., 308 F.3d at 539 (upholding denial of qualified immunity premised on district court’s determination that plaintiffs had advanced sufficient evidence to support finding of discriminatory intent and holding that, once this initial burden of production is satisfied, “[t]he question of whether [an official’s] allegedly discriminatory motive played a determinative role in the decision to investigate the plaintiffs ... is a factual dispute best suited for resolution at trial”); cf. Koch v. Rugg, 221 F.3d 1283, 1297-98 (11th Cir.2000) (holding that court of appeals lacked jurisdiction over interlocutory appeal from denial of qualified immunity where defendants based their appeal solely on alleged lack of evidence to show racially discriminatory intent); Stella v. Kelley, 63 F.3d 71, 75 (1st Cir.1995) (upholding denial of qualified immunity on the ground that court of appeals “lack[s] the power to inquire into ... the fact-based question of what the evidence does (or does not) show concerning whether the [officials’] actions violated the asserted right — a question that depends, in this case, on the [officials’] motives”). Williams and Reaves have alleged specific facts from which it could be inferred that when Hansen selected all and only the African-Americans officers for his investigation, he was motivated at least in part by discriminatory animus.

C.

When Hansen instituted this investigation almost a quarter of a century after the Supreme Court rendered its decision in Arlington Heights, it was eminently well established that a facially neutral administrative action that is undertaken with an intent to discriminate against a particular racial group is forbidden by the Constitution. Accordingly, the district court did not err in denying Hansen qualified immunity from the plaintiffs’ equal protection claims.

The “clearly established” prong of the qualified immunity inquiry requires that “the contours of the right ... be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “In determining whether a right was clearly established at the time of the claimed violation, ‘courts in this circuit [ordinarily] need not look beyond the decisions of the Supreme Court, this court of appeals, and the highest court of the state in which the case arose.’ ” Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir.1999) (quoting Jean v. Collins, 155 F.3d 701, 709 (4th Cir.1998) (en banc)) (alteration in original).

It is not essential that there exist a decided case that is on all fours with the facts at hand in order for public officials to be on fair notice that their conduct violates the Constitution. See Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (holding that precise conduct need not have been previously held unlawful in order for qualified immunity to be forfeited); Edwards, 178 F.3d at 251 (“[T]he nonexistence of a case holding the defendant’s identical conduct to be unlawful does not prevent denial of qualified immunity.”); see also Amaechi v. West, 237 F.3d 356, 362-63 (4th Cir.2001) (deny*588ing qualified immunity despite absence of factually similar precedent); McMillian v. Johnson, 88 F.3d 1554, 1565 (11th Cir.1996) (same). After all, “qualified immunity was never intended to relieve government officials from the responsibility of applying familiar legal principles to new situations.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir.2001) (Michael, J., concurring).

Under the Supreme Court’s decision in Arlington Heights, Hansen had fair notice that a facially neutral yet discriminatorily motivated administrative action violates equal protection. Indeed, given the unbroken and wide-ranging fine of equal protection decisions reaffirming and applying the Arlington Heights principle, it is difficult to imagine how the message might have been made clearer. See, e.g., Shaw, 509 U.S. at 644, 113 S.Ct. 2816 (applying Arlington Heights to analyze equal protection challenge to alleged racially discriminatory gerrymander of voting districts); Hunter, 471 U.S. at 233, 105 S.Ct. 1916 (“[Alabama’s disenfranchisement of persons convicted of crimes involving moral turpitude] was motivated by a desire to discriminate against African-Americans on account of race and ... continues to this day to have that effect. As such, it violates equal protection under Arlington Heights.”)-, Rogers v. Lodge, 458 U.S. 613, 618, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982) (applying Arlington Heights to evaluate equal protection challenge to alleged racially discriminatory vote dilution); Smith v. Town of Clarkton, 682 F.2d 1055, 1066 (4th Cir.1982) (applying Arlington Heights to analyze equal protection challenge to town officials’ withdrawal of town from multi-municipality low-income housing authority, holding district court’s finding of racially discriminatory intent not clearly erroneous, and affirming district court’s conclusion that town officials violated equal protection); see also Sylvia Dev. Corp., 48 F.3d at 819-24 (applying Arlington Heights to analyze national-origin equal protection challenge to county officials’ refusal to grant requested rezoning). Under these precedents, a reasonable person in Hansen’s position could make no mistake that to adopt with discriminatory animus a facially neutral policy that subjected all and only the African-Americans in his Department to investigation, would be to violate the equal protection rights of the targeted officers.2

D.

As the Supreme Court has observed, the central purpose of the Equal Protection Clause “is to prevent the States from purposefully discriminating between individuals on the basis of race.” Shaw, 509 U.S. at 642, 113 S.Ct. 2816 (citing Washington, 426 U.S. at 239, 96 S.Ct. 2040). Williams and Reaves have made out a claim for precisely this sort of purposeful, race-based discrimination, and they have supported that claim with specific factual allegations. Thus, because Hansen failed to meet his burden of proving that the plaintiffs asserted no valid claims for the violation of clearly established constitutional rights, Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980),- I must part company with my distinguished colleagues in the majority.

I respectfully dissent.

. Though the "clearly established” inquiry is an objective one, it is worth noting that Hansen himself has written and published on the topic of equal protection. See Carl Milazzo & Ronald Hansen, Racial Relations in Police Operations: A Legal and Ethical Perspective (Published manuscript from the 1999 Conference Materials, International Association of Chiefs of Police) (http://aele.org/los-race99.html).