dissenting:
I dissent because the record discloses a genuine issue of material fact within the meaning of Rule 56 of the Federal Rules of Civil Procedure. Therefore, the district court erred in granting summary judgment.
In Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886), the court said:
Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.
The allegations of racial discrimination in Esther Butler’s pro se complaint, supplemented by the records of the Portsmouth police department and her affidavits, disclose facts which, if proven at trial, would constitute a violation of the fourteenth amendment’s equal protection clause as interpreted in Yick Wo.
The police arrested Butler, a fifty-year-old widow, for selling two cans of beer in her home. She was charged with selling alcoholic beverages in violation of state law1 and with maintaining a disorderly house in violation of a city ordinance.2 On three occasions she appeared in court, accompanied by her counsel and a privately engaged court reporter. Each time, the case was continued on motion of the prosecution over her objection. After the last continuance, a police officer suggested that she plead guilty to a lesser offense. Upon her refusal, she was convicted in the magistrate’s court, fined $200, and sentenced to 60 days in jail. Ultimately, the case was dismissed on appeal because the police failed to file the search warrant as required by law. She charged that the prosecution was conducted in bad faith because of her support for civil rights. She alleged that the continuances were typical of trial delays forced on black defendants to coerce them to plead guilty to lesser charges.
In her complaint, Butler asserted a class action on behalf of all black persons similarly situated in Portsmouth. She alleged that approximately one-third of the city’s population of 117,000 are black. She charged that despite this ratio, 98% of the people *649arrested for the sale of legal whiskey without a license are black. Amplifying this charge, she explained:
Members of the Black race have their own social clubs such as the Elk's Club, Masonic Temple, American Legion, etc. Members of the White race have their own social clubs such as the Elk’s Club, Masonic Temple, American Legion, etc. Black undercover police officers are used to infiltrate the Black operated social clubs, especially the American Legion for Blacks, in order to obtain violations of 4-58 ABC Code. As a result, many Blacks are arrested in social clubs and placed in jail for violation of 4-58 ABC Code. Since the inception of the Portsmouth Police Department, the Police Department has never infiltrated and arrested any members of the White race in an Elk’s Masonic or American Legion Club operated by members of the White race for violation of the 4-58 ABC Code. As a result, 4-58 ABC Code is being used to disapportionately, capriciously and arbitrarily arrest the Plaintiff and other members of the Black race.
The police records corroborate Butler’s charge of disparity in the enforcement of liquor laws. Over a 20-month period, approximately 84% of the persons arrested for violating these laws were black.3 Moreover, in many months, the ratio approached or exceeded 98%, as Butler alleges. For example, in October, 1973, all 39 people arrested for running a disorderly house were black. Similarly, in April, 1974, all 45 people arrested for this offense were black, and in June, 1974, all 57 arrested were black. Arrests for violations of the state ABC laws i show a similar disparity. Thus, in November, 1973, all six of the persons arrested for violating these laws were black. The next month, all 13 arrested were black, and in January, 1974, only one out of the 17 persons arrested was white. The next month, all 16 of the persons arrested were black.
In contrast, the records show that for other crimes, including such related offenses as drunk driving and public drunkenness, there is no marked disparity between the number of black and white citizens arrested.
The appellees denied that they conspired to discriminate against Butler or members of her class. They have not explained, however, the disproportionate number of black people arrested for the unlicensed sale of legal whiskey.
In American Fidelity and Casualty Co. v. The London and Edinburgh Insurance Co., 354 F.2d 214, 216 (4th Cir. 1965), the court said with respect to granting a motion for summary judgment:
Not merely must the historic facts be free of controversy but also there must be no controversy as to the inferences to be drawn from them. It is often the case that although the basic facts are not in dispute, the parties nevertheless disagree as to the inferences which may properly be drawn. Under such circumstances the case is not one to be decided on a motion for summary judgment.
That principle of law is applicable to this case where the parties disagree as to the inferences which may reasonably be drawn from the pleadings, affidavits, and exhibits. Furthermore, there is a direct conflict between the charge and the denial of utilizing undercover agents for the selective prosecution of black citizens.
Under the principles set forth in Yick Wo, Butler has established a cognizable claim that the police infringed rights secured by the equal protection clause. Therefore, she should be allowed to proceed to discovery.
Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), on which the appellees rely, is not to the contrary. In that case, the district court held a full evidentiary hearing. The Supreme Court noted that 250 witnesses were heard. It explained:
*650As the facts developed, there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners — express or otherwise — showing their authorization or approval of such misconduct. 423 U.S. at 371, 96 S.Ct. at 604.
Rizzo does not hold that statistics indicating a pattern of discrimination are insufficient to defeat a motion for summary judgment. Rather, in Rizzo the complainants failed to prove their allegations after a full evidentiary hearing. Unlike the complainants in Rizzo, Butler has not even been given a chance to proceed to discovery, much less to prove her case at trial.
Despite the suggestion to the contrary, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), does not support the grant of summary judgment. The Supreme Court described the deficiency of the complaint in that case as follows:
It is not stated whether the failure to proceed against other three-time offenders was due to lack of knowledge of the prior offenses on the part of the prosecutors or was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons. 368 U.S. at 456, 82 S.Ct. at 505-506.
In contrast, Butler has alleged — and reaffirmed in subsequently filed affidavits— that the appellees’ selective prosecution of black persons resulted from a deliberate policy of racially motivated enforcement.
Never before have we required proof of racial discrimination before permitting a plaintiff to go to trial in a § 1983 action. Rather, we have adhered to the sound principle that trial should be ordered, and summary judgment denied, when the record discloses a genuine issue as to any material facts, or to the inferences that may reasonably be drawn from them about such discrimination. Butler has satisfied this test. Therefore, I would vacate the judgment of the district court and remand the case for further proceedings, including disposition of the defenses of privilege. Butler’s allegations, if true, would prove a serious violation of the constitutional rights of many people. For this reason, I would direct the district court to appoint a lawyer to represent her, if she is unable to retain one, so that her evidence can be intelligently marshalled and presented to the court.
. Va.Code Ann., § 4-58 provides in part:
If any person who is not licensed under the provisions of this chapter to sell alcoholic beverages in this State shall sell any alcoholic beverages other than permitted by the provisions of this chapter, he shall be guilty of a misdemeanor.
. Portsmouth Code, § 21-95 provides in part:
(a) It shall be unlawful for any person in the city to keep, maintain or operate for himself or for any other person or as an officer of or agent for any corporation, association, club, lodge or other organization or under the guise of any corporation, association, club, lodge or other organization any disorderly house or place of illegally dispensing or indulging in intoxicating liquors, gaming or boisterous or other disorderly conduct. Each day’s keeping of any such place shall constitute a separate offense, and in any prosecution for this offense, the general reputation of such place may be proved. Violation of this section shall be punished as a Class 1 misdemeanor.
. During the 20-month period from September, 1973, through April, 1975, the police issued 1200 warrants for the unlicensed sale of alcoholic beverages and the maintenance of disorderly houses. One hundred eighty-seven of the warrants (15.6%) were issued against white people; 1013 (84.4%) were issued against black people.