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Court limits use of statistics, officer testimony.

Byline: Rebecca M. Lightle

In a selective law-enforcement case asserting claims of race discrimination, the plaintiffs could use arrest records to show the defendant officer's intent to discriminate, but not to show a discriminatory effect on similarly situated individuals. In addition, the plaintiffs could offer testimony from other black citizens regarding other allegedly discriminatory conduct by the same officer. Background In 2014, Defendant Andrew Holmes, a police officer, pulled over Plaintiff Delmar Canada, who is black and was driving a BMW, and cited him for driving on a suspended license. Co-Plaintiff Bianca Johnson later arrived on the scene, and Holmes remarked she was driving a nice car. After the incident, Holmes obtained a search warrant for Plaintiffs' residence, ostensibly to search for notice of suspension that Canada denied receiving. Holmes executed the warrant late at night, finding neither the suspension notice nor any drugs. The remaining claim in this action is asserted under the Equal Protection Clause. Specifically, the Plaintiffs contend that Holmes was selectively using law-enforcement mechanisms because Holmes assumed that they were likely to be engaged in criminal drug activity because they were black citizens driving nice cars. The parties have filed cross-motions in limine as to evidence to be presented at the upcoming trial. Expertqualification Holmes has identified Richard Morrison as an expert witness. Morrison is a police officer who intends to opine on the meaning of statistics that the Plaintiffs hope to offer to show Holmes engaged in racially disparate citations and arrest of black individuals and on Holmes's racial motivation for his actions. Morrison appears to be qualified as an expert based on his training and experience in general police practices and could competently testify as to whether Holmes's actions complied with those practices. But his opinions regarding the interpretation of statistical data and of Holmes's intent are neither within his realm of expertise nor helpful to a jury. Although Morrison had some engagement with policing statistics in his career, he admitted that it was on the output end of the equation effectively, helping officers glean from statistics how to improve their policework. He has no experience with the collection, calculation, input, or generation of data. Additionally, while Morrison opines on what the data in this case means, neither his report nor his deposition details any principles or methods he used, how he applied them to the data, or whether any methods he might have used have been tested. Put simply, he has an opinion based on rather common-sense intuitions about statistics. He is not a statistician, criminologist, demographer, or, in the case of Holmes's intent, a psychologist. Therefore, the court will not permit him to testify about whether statistics the Plaintiffs seek to introduce illustrate a racially discriminatory intent or show the creation of a racially discriminatory effect, which are the elements of the Plaintiffs' selective-enforcement claim. Morrison is competent to testify about whether Holmes's actions in obtaining and executing the warrant followed proper protocol, but he has no basis to testify directly about Holmes's state of mind. Such testimony is not permissible as lay opinion under Federal Rule of Evidence 701, and Holmes has not offered any explanation pursuant to Rule 702 why the issue of Holmes's intent on the day in question is one of scientific, technical, or other specialized knowledge. That is a question well within the comprehension of the ordinary juror. Accordingly, Morrison may testify as to generally accepted police procedures and standards and whether Holmes's actions in this case complied with them. He may not testify about statistics or Holmes's intent. Statisticalevidence Holmes contests the admissibility of statistical evidence of his and other officers' citation and arrest records broken down by race. According to data from 2009 to 2016 obtained from Albemarle County's internal database, Holmes cited and arrested a greater percentage of black citizens than lived, per capita, within his designated geographic area and within Albemarle County generally. Second, in 2015 the year of the incident in question Holmes cited and arrested black citizens at a higher rate than his fellow officers did. Holmes argues that these statistics are irrelevant and lacking meaningful assistance to the jury, especially because Plaintiffs have not proffered an expert to explain the data. The data showing Holmes's comparably high arrest and citation rates of black citizens is somewhat probative of his intent, at least when combined with other evidence that the Plaintiffs may adduce at trial. Using such statistics to prove discriminatory effect, however, raises concerns about relevance, jury confusion, unfair prejudice, and lack of expert support. First, the court doubts the statistics are relevant to discriminatory effect because they contain nothing about individuals similarly situated to the Plaintiffs. All we know from the numbers is that Holmes cites and arrests more black individuals than his fellow officers do, and proportionally more than are contained in the population of his assigned area. Additionally, the numbers don't break down citations and arrests by particular kind of crime or account for potential racial disparities that might result from crime-based assignments, such as if Holmes or his fellow officers were directed to focus on one type of crime or another. Without these types of information, the raw statistics simply don't advance the ball, leaving the jury without any indication of whether distinguishable legitimate enforcement factors differentiate these Plaintiffs from some as-yet unidentified non-black citizen who hypothetically received different treatment. In an analogous case, the U.S. Supreme Court summarily reversed on the discriminatory-effect element when a lower court relied on statistics demonstrating that the U.S. charges black individuals with a death-eligible offense more than twice as often as it charges white individuals and that the U.S. enters into plea bargains more frequently with white defendants. Second, in the context of race-discrimination cases, courts frequently find raw statistical evidence inappropriate to place before a jury without guidance from the proponent's expert. The 4th Circuit's recent decision in United States v. Hare, 820 F.3d 93 (4th Cir. 2016), strongly supports the conclusion that statistics of the type the Plaintiffs seek to introduce simply cannot be used to show discriminatory effect. The balance of considerations tips to excluding the Plaintiffs' proffered statistics for the purpose of showing discriminatory effect, though they may be presented to show discriminatory intent. Prejudicialtestimony Holmes also moves to exclude the testimony of certain individuals who didn't witness the events at issue in this case, but who are black and would testify about various discriminatory police practices Holmes took against them. Ultimately, the question is whether this evidence should be admitted as bad acts under Rule 404(b). Precedent from the 4th Circuit favors admission of other acts of discrimination to prove a defendant's discriminatory intent in the present case. To assess Holmes's discriminatory intent, the jury can consider a pattern of race-based actions or a historical background of discrimination. Such evidence is also reliable because a juror could believe the witnesses' account of discrimination by Holmes. And although there are some differences between the circumstances, they are not far apart in time and generally map onto the Plaintiffs' theory about Holmes: That he uses police investigative techniques to harass black citizens, especially ones with nice cars, based on the pernicious assumption that they are likely involved in criminal drug activity. This testimony is strongly probative of Holmes's intent and state of mind, and while it may be somewhat prejudicial to Holmes, such prejudice can be reduced with a limiting instruction that the evidence is meant only to show intent. Moreover, it's not clear that it would be uinfair prejudice for witnesses to discuss other allegedly racially discriminatory instances when the very issue is whether Holmes acted with discriminatory intent. And while Holmes fears that the testimony will devolve into a series of mini-trials, this concern can be managed by the court and through conscientiousness from the Plaintiffs' counsel. Trafficstop Finally, Holmes argues that testimony about his traffic stop and citation of Plaintiff Canada should be excluded because the court already found it didn't violate the Fourth Amendment. The Plaintiffs didn't present any argument against this aspect of Holmes's motion, so it will be granted. Motions in limine granted in part and denied in part Johnson v. Holmes, Case No. 3:16cv16, Mar. 19, 2018. WDVA at Charlottesville (Moon). VLW No. 018-3-091, 16 pp.

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Author:Lightle, Rebecca M.
Publication:Virginia Lawyers Weekly
Date:Apr 2, 2018
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