869 F.3d 442
6th Cir.2017Background
- Plaintiffs (two migrant-worker organizations) sued the U.S. Border Patrol alleging agents at the Sandusky Bay Station target persons of Hispanic appearance for encounters and stops.
- District court held a two-week bench trial and found Plaintiffs failed to prove a policy permitting racial targeting; Border Patrol judgment entered for defendant.
- Sandusky Bay agents patrol a 30-mile swath along ~150 miles of Lake Erie shoreline, including I-80/I-90 rest areas; agents often initiate consensual encounters that sometimes lead to arrests logged in an apprehension log.
- Plaintiffs relied on four specific encounters, expert statistical analysis of the apprehension log (Dr. Kara Joyner), and past use of derogatory terms by agents to show a custom or ratification of racial targeting.
- Court found supervisory testimony denying tolerance for racial profiling, determined the four encounters were initiated for non-racial, articulable reasons, rejected Joyner’s methodology (wrong numerator/denominator and inclusion of stops initiated by other agencies), and discounted past slur-usage as insufficient to justify injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Border Patrol has a policy (formal or informal) allowing race-based targeting | Sandusky Bay officials and agents permit or tolerate use of Hispanic appearance in decision to approach | Official Border Patrol policy prohibits race as a basis; supervisors deny tolerance; any past slurs not current policy | No policy proven; district court’s factual findings not clearly erroneous; judgment for Border Patrol |
| Whether ratification by final policymakers occurred | Testimony by some supervisors and deputies shows acceptance or permissive attitudes toward using race | Station and sector chiefs unequivocally denied toleration; deputies not final decisionmakers and did not ratify others’ conduct | No ratification: deputies’ testimony insufficient because not final policymakers |
| Whether a custom/widespread practice exists based on incidents and documents | Four encounters and historical emails/terms show a custom of targeting Hispanics | Encounters explained by non-racial investigative factors; slur-use was historic and addressed by the agency | No custom proven; encounters had articulable non-racial bases; past slang use insufficient now |
| Reliability of statistical evidence (Joyner) showing disparate stops | Apprehension log shows ~90% arrests from Hispanic countries vs. ~33% “at-risk” Hispanic population => targeting | Apprehension log records arrests (not initial approaches), includes stops initiated by other agencies, and Joyner’s denominator is speculative; methodology flawed | Expert statistics unreliable and inadmissible for proving targeting; court properly discounted the analysis |
Key Cases Cited
- Calloway v. Caraco Pharm. Labs., Ltd., 800 F.3d 244 (6th Cir. 2015) (standard of review for bench-trial factual findings and legal conclusions)
- D'Ambrosio v. Marino, 747 F.3d 378 (6th Cir. 2014) (ways to prove municipal or agency policy, including ratification and custom)
- United States v. Travis, 62 F.3d 170 (6th Cir. 1995) (statistical evidence based on arrests/incidents can be misleading when the data omit consensual encounters)
- Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658 (1978) (municipal liability standard for official policy, custom, or ratification)
- United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (appearance of Mexican ancestry may be a relevant factor in investigations but cannot alone justify stops)