299 F.3d 197 | 3rd Cir. | 2002
BARRY, Circuit Judge:(cid:13) Much has been written about "border searches" and we(cid:13) will not break much new ground here. We believe it(cid:13) 2(cid:13) appropriate, however, particularly in light of the tragedy of(cid:13) September 11th and the anti-terrorism efforts being made(cid:13) in its aftermath, to reprise what has been written in the(cid:13) course of concluding that the border search at issue here(cid:13) was well within the bounds of law. The order of the District(cid:13) Court will, therefore, be affirmed.(cid:13) I.(cid:13) Introduction(cid:13) Yvette Bradley, an African-American woman, brought this(cid:13) Bivens action1 against the United States, the United States(cid:13) Customs Service, and a number of customs inspectors,(cid:13) supervisors, and officials. She alleged that her(cid:13) constitutional rights were violated when, on April 5, 1999,(cid:13) customs inspectors subjected her to a search of her(cid:13) suitcase, purse and backpack, as well as a patdown, when(cid:13) she arrived at Newark International Airport on a nonstop(cid:13) international flight from the island of Jamaica. Bradley(cid:13) argued that she was selected because of her race and(cid:13) gender, in violation of her equal protection rights under the(cid:13) Fifth and Fourteenth Amendments, and that the patdown(cid:13) was an illegal search under the Fourth Amendment. 2 The(cid:13) District Court granted defendants’ motion for summary(cid:13) judgment, and Bradley now appeals. The District Court had(cid:13) jurisdiction under 28 U.S.C. S 1331 and we have(cid:13) jurisdiction pursuant to 28 U.S.C. S 1291. We review the(cid:13) District Court’s grant of summary judgment de novo.(cid:13) Chisholm v. McManimon, 275 F.3d 315, 321 (3d Cir. 2001).(cid:13) _________________________________________________________________(cid:13) 1. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).(cid:13) 2. Bradley also raised a privacy claim under the Ninth Amendment, a(cid:13) procedural due process claim, a claim for supervisory liability, and(cid:13) various other claims against the United States under the Federal Tort(cid:13) Claims Act. She does not take issue with the District Court’s decision(cid:13) regarding these claims and, accordingly, they are waived. Nagle v.(cid:13) Alspach, 8 F.3d 141, 143 (3d Cir. 1993).(cid:13) 3(cid:13) II.(cid:13) The Patdown -- and the Fourth Amendment(cid:13) While Bradley refers in passing to the search of her(cid:13) luggage, her challenge is directed almost exclusively to the(cid:13) patdown, albeit what she describes as the "intrusive(cid:13) patdown," to which she was subjected at an immigration(cid:13) checkpoint at the Newark International Airport. She argues(cid:13) that in granting summary judgment, the District Court(cid:13) failed to construe the facts in the light most favorable to(cid:13) her as, of course, it was required to do given that she was(cid:13) the non-moving party. The facts as relevant to her Fourth(cid:13) Amendment claim are, however, largely undisputed. Those(cid:13) facts, viewed against well-settled law, defeat that claim.(cid:13) It is not disputed, for example, that Jamaica is(cid:13) considered by Customs to be a source country for narcotics(cid:13) and that Jamaica Airlines Flight 19, on which Bradley(cid:13) arrived, is considered by Customs to be a high risk flight(cid:13) for narcotics, although Bradley herself does not believe(cid:13) either to be so. It is also not disputed that Bradley was(cid:13) subjected to a patdown, and not a strip search, a body(cid:13) cavity search, or any other type of highly intrusive search.(cid:13) It is not disputed that the patdown was done over Bradley’s(cid:13) dress by a female inspector in the presence of a second(cid:13) female inspector and that Bradley’s skin was not directly(cid:13) touched in any intimate area. It is not disputed that when(cid:13) the patdown reached what Bradley calls her "groin area,"(cid:13) her internal genitalia were not penetrated through the(cid:13) dress. Crediting her version of the facts, the touching that(cid:13) occurred involved the inspector "us[ing] her fingers to(cid:13) inappropriately push on [Bradley’s] breasts and into the(cid:13) inner and outer labia," Bradley aff. P 28, the latter(cid:13) concededly part of the external genitalia of a woman.3(cid:13) _________________________________________________________________(cid:13) 3. We note, without further comment, that the"us[ing] her fingers to(cid:13) inappropriately push . . . into" language is a change from the "rub her(cid:13) hands . . . over" language in the Complaint and Amended Complaint.(cid:13) JA129, 357. While the District Court appeared to concentrate on the(cid:13) language in the complaints rather than the affidavit, we will focus, as(cid:13) does Bradley, on the affidavit while reaching the same result the District(cid:13) Court reached.(cid:13) 4(cid:13) Bradley, we note, was not wearing underwear and does not(cid:13) dispute that had she been doing so, the additional layer of(cid:13) cloth would have reduced any intrusion that took place.(cid:13) And, of course, Bradley does not dispute that no drugs or(cid:13) other contraband were found.(cid:13) Neither does Bradley take issue with the law, nor could(cid:13) she, for courts, including our Court, have long held that(cid:13) routine searches at our nation’s borders are presumed to(cid:13) be reasonable under the Fourth Amendment. See , e.g.,(cid:13) United States v. Ramsey, 431 U.S. 606, 616 (1977); United(cid:13) States v. Hyde, 37 F.3d 116, 118-20 (3d Cir. 1994); United(cid:13) States v. Ezeiruaku, 936 F.2d 136, 140 (3d Cir. 1991).(cid:13) Immigration checkpoints at international airports are the(cid:13) functional equivalent of national borders. Almeida-Sanchez(cid:13) v. United States, 413 U.S. 266, 273 (1973). As a sovereign(cid:13) state, the United States has the right to "protect itself by(cid:13) stopping and examining persons and property crossing into(cid:13) this country." Ramsey, 431 U.S. at 616. 4 "Since the(cid:13) founding of our Republic, Congress has granted the(cid:13) Executive plenary power to conduct routine searches and(cid:13) seizures at the border, without probable cause or a(cid:13) warrant, in order to regulate the collection of duties and to(cid:13) prevent the introduction of contraband into this country."(cid:13) United States v. Montoya de Hernandez, 473 U.S. 531, 537(cid:13) (1985). For example, Congress has empowered border(cid:13) officials to detain and search "all persons coming into the(cid:13) United States from foreign countries." 19 U.S.C.S 1582; see(cid:13) also 19 U.S.C. S 1496 (authorizing customs officials to(cid:13) search the baggage of persons entering the country); 19(cid:13) C.F.R. S 162.6 (authorizing customs officials to inspect and(cid:13) search all persons, baggage, and merchandise arriving from(cid:13) foreign countries).(cid:13) It has, of course, also long been true that our nation’s(cid:13) historic concern for the integrity of its borders has been(cid:13) _________________________________________________________________(cid:13) 4. Courts have also long held that an individual’s reasonable expectation(cid:13) of privacy is lower at the border than in the interior of the country. See,(cid:13) e.g., Carroll v. United States, 267 U.S. 132, 154 (1925). "[T]he Fourth(cid:13) Amendment balance between the interests of the Government and the(cid:13) privacy right of the individual is . . . struck much more favorably to the(cid:13) Government at the border." United States v. Montoya de Hernandez, 473(cid:13) U.S. 531, 540 (1985).(cid:13) 5(cid:13) "heightened by the veritable national crisis in law(cid:13) enforcement caused by [the] smuggling of illicit narcotics."(cid:13) Montoya de Hernandez, 473 U.S. at 538 (citing United(cid:13) States v. Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J.,(cid:13) concurring). And it is beyond peradventure, as the Seventh(cid:13) Circuit has noted, that "the events of September 11, 2001,(cid:13) only emphasize the heightened need to conduct searches"(cid:13) at our borders. United States v. Yang, 286 F.3d 940, 944(cid:13) n.1 (7th Cir. 2002).(cid:13) In Montoya de Hernandez, the Supreme Court’s most(cid:13) recent case on border searches, the Court reiterated that,(cid:13) because the Fourth Amendment’s balance of(cid:13) reasonableness is qualitatively different at the international(cid:13) border than in the interior, "routine searches" of persons(cid:13) and their effects at the border "are not subject to any(cid:13) requirement of reasonable suspicion, probable cause, or(cid:13) warrant." 473 U.S. at 538 (citing Ramsey, 431 U.S. at 616-(cid:13) 19; Almeida-Sanchez, 413 U.S. at 272-73; and Carroll, 267(cid:13) U.S. at 154). The Court had not previously determined what(cid:13) level of suspicion would justify the detention of an incoming(cid:13) traveler in a nonroutine border search and inspection. In(cid:13) Montoya de Hernandez, however, the Court concluded that(cid:13) an alimentary canal search was not "routine" and is(cid:13) justified only if customs agents reasonably suspect that the(cid:13) traveler is smuggling contraband in his or her alimentary(cid:13) canal. "Reasonable suspicion" was defined as" ‘a(cid:13) particularized and objective basis for suspecting the(cid:13) particular person’ " of smuggling contraband. Id. at 541(cid:13) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)).(cid:13) The Court explicitly declined, however, to determine, "what(cid:13) level of suspicion, if any, is required for[other] nonroutine(cid:13) border searches such as strip, body-cavity, or involuntary(cid:13) x-ray searches." Id. at 541 n.4 (emphasis added).(cid:13) In the course of concluding that an alimentary canal(cid:13) search must be supported by reasonable suspicion, and(cid:13) that reasonable suspicion supported the search of the(cid:13) balloon swallower before it, the Court bemoaned the"subtle(cid:13) verbal gradations" being developed by courts of appeals to(cid:13) enunciate the Fourth Amendment standard of(cid:13) reasonableness which "may obscure rather than elucidate(cid:13) the meaning of the provision in question." 473 U.S. at 541.5(cid:13) _________________________________________________________________(cid:13) 5. The Court noted by way of example that the Ninth Circuit in Montoya(cid:13) de Hernandez used "clear indication" of smuggling language, 731 F.2d(cid:13) 6(cid:13) The Second Circuit viewed this statement as "warning"(cid:13) against the development of multiple gradations of suspicion(cid:13) to be applied to different types of border searches. United(cid:13) States v. Charleus, 871 F.2d 265, 268 n.2 (2d Cir. 1989).(cid:13) While we have not had the occasion to address the(cid:13) question left open in Montoya de Hernandez -- the level of(cid:13) suspicion, "if any," necessary to conduct at least certain(cid:13) types of nonroutine searches -- those court of appeals that(cid:13) have done so agree that reasonable suspicion is required.(cid:13) United States v. Gonzalez Rincon, 36 F.3d 859, 864 (9th(cid:13) Cir. 1994); United States v. Yakubu, 936 F.2d 936, 939 (7th(cid:13) Cir. 1991); United States v. Carreon, 872 F.2d 1436, 1442(cid:13) (10th Cir. 1989); Charleus, 871 F.2d at 267; United States(cid:13) v. Oyekan, 786 F.2d 832, 837-39 (8th Cir. 1986).(cid:13) We are not, of course, dealing here with a strip search or(cid:13) a body cavity search or any of the other typical nonroutine(cid:13) searches, but, rather, with a patdown. While the Supreme(cid:13) Court has never articulated what makes a border search(cid:13) routine and has never explicitly classified patdowns as(cid:13) routine, of those courts of appeals which have addressed(cid:13) the patdown issue since Montoya de Hernandez, none has(cid:13) held that a standard patdown at the border is a nonroutine(cid:13) search requiring reasonable suspicion and all have held(cid:13) _________________________________________________________________(cid:13) 1369, 1372 (9th Cir. 1984) and the Eleventh Circuit, on almost identical(cid:13) facts, adopted a reasonable suspicion standard. United States v.(cid:13) Mosquera-Ramirez, 729 F.2d 1352, 1355 (11th Cir. 1984). Prior to(cid:13) Montoya de Hernandez, varying levels of suspicion were found to justify(cid:13) various types of border searches. See, e.g., United States v. Dorsey, 641(cid:13) F.2d 1213, 1218-19 (7th Cir. 1981) (adopting a case-by-case balancing(cid:13) test to determine the precise level of suspicion needed to search and(cid:13) declining to label the requisite degrees of suspicion); United States v.(cid:13) Sandler, 644 F.2d 1163, 1166-69 (5th Cir. 1981) (requiring "mere(cid:13) suspicion" to justify a routine border search and"reasonable suspicion"(cid:13) for more intrusive searches such as a strip search); United States v.(cid:13) Grayson, 597 F.2d 1225, 1228 (9th Cir. 1979) (discussing a "mere(cid:13) suspicion" and "no suspicion" standard); United States v. Carter, 563(cid:13) F.2d 1360, 1361 (9th Cir. 1977) (holding that "mere suspicion" was(cid:13) necessary for patdown searches at the border); United States v. Kallevig,(cid:13) 534 F.2d 411, 413 n.4 (1st Cir. 1976) (a border search that is less(cid:13) intrusive than a strip search requires no level of suspicion).(cid:13) 7(cid:13) that such patdowns come within the "routine" border(cid:13) search category and, thus, require no suspicion whatsoever.6(cid:13) United States v. Beras, 183 F.3d 22, 26 (1st Cir. 1999);(cid:13) Gonzalez-Rincon, 36 F.3d at 864 (luggage searches and(cid:13) patdowns are routine and do not require reasonable(cid:13) suspicion); Carreon, 872 F.2d at 1442; Oyekan 786 F.2d at(cid:13) 835; c.f. Charleus, 871 F.2d at 268 (the patdown in that(cid:13) case was a routine border search requiring no level of(cid:13) suspicion at all).7 We now join those courts, although we do(cid:13) not foreclose the possibility that a patdown gone awry could(cid:13) become so intrusive as to become a nonroutine search(cid:13) requiring application of the reasonable suspicion standard.8(cid:13) _________________________________________________________________(cid:13) 6. The Second Circuit has also held that lifting a woman’s skirt at the(cid:13) border to look for contraband is a routine search not requiring any(cid:13) suspicion. See, e.g., Charleus , 871 F.2d at 268; see also United States v.(cid:13) Braks, 842 F.2d 509, 511-15 (1st Cir. 1988)(noting that the lifting of a(cid:13) woman’s skirt to check for contraband was a routine search not(cid:13) necessarily requiring any degree of suspicion).(cid:13) 7. Somewhat surprisingly, the government argues to us and argued(cid:13) before the District Court, with the District Court finding it "undisputed,"(cid:13) that "[a]t the border, Customs Inspectors can send someone for a(cid:13) patdown with mere suspicion." JA47. The argument that "mere(cid:13) suspicion" is required is presumably based on the U.S. Customs(cid:13) Service’s Personal Search Handbook that, in discussing "Procedures(cid:13) Applicable to Patdowns," states that "Some or Mere Suspicion is(cid:13) Required." The sole support for this statement, however, is a 1975 Ninth(cid:13) Circuit case which does not so clearly stand for the proposition for which(cid:13) it is cited and which, in any event, has been effectively overruled by the(cid:13) Ninth Circuit’s post-Montoya de Hernandez decision in Gonzalez-Rincon.(cid:13) 8. It appears that when the Seventh Circuit is called upon to decide the(cid:13) issue it, too, will join. The Court, in Saffell v. Crews, 183 F.3d 655 (7th(cid:13) Cir. 1999), although reviewing only a partial strip search, nonetheless(cid:13) observed that the patdown which had preceded the strip search revealed(cid:13) a bulge through Saffell’s clothes "in the most intimate area of her body,(cid:13) a place where drugs are sometimes known to be secreted by women."(cid:13) 183 F.3d at 657. It found that "there was justification" for the patdown,(cid:13) id., and did not even suggest that patting down the crotch area turned(cid:13) the patdown into an intrusive patdown search requiring reasonable(cid:13) suspicion. It is unclear, however, by the use of the word "justification"(cid:13) whether it believed that the balancing test adopted in its 1981 Dorsey(cid:13) case, see n.5 supra, continues to be viable after Montoya de Hernandez.(cid:13) It appears, however, that, while not ignoring Dorsey, the Court(cid:13) subsequently dropped that test when it held that there are but two(cid:13) 8(cid:13) This, says Bradley, was just such a case, with the(cid:13) patdown to which she was subjected so intrusive that,(cid:13) although it was concededly not a body cavity or strip(cid:13) search, it became "nonroutine," thereby requiring(cid:13) reasonable suspicion which, she argues, did not exist. We(cid:13) need not decide whether the customs inspectors reasonably(cid:13) suspected that Bradley was smuggling contraband because(cid:13) we conclude that the patdown was not so intrusive as to be(cid:13) transformed into a nonroutine border search.(cid:13) Bradley has not pointed us to any court of appeals’(cid:13) decision subsequent to Montoya de Hernandez which has(cid:13) held that on a border search even an "intrusive" patdown is(cid:13) nonroutine and must be supported by reasonable(cid:13) suspicion. See n.9 infra. Rather, she relies for this(cid:13) proposition on Anderson v. Cornejo, 199 F.R.D. 228 (N.D.(cid:13) Ill. 2000), a decision which simply does not do for Bradley(cid:13) what it did for the one named plaintiff in that class action(cid:13) who survived a motion for summary judgment. Viewing the(cid:13) facts in her favor, the District Court found that the plaintiff(cid:13) was subjected to an intrusive patdown search which(cid:13) involved the customs inspector pushing her hand through(cid:13) plaintiff ’s clothes and her finger into plaintiff ’s vagina six(cid:13) times causing pain. The Court found that this was"close(cid:13) enough to a cavity search and done repeatedly enough to(cid:13) be more than just a standard patdown search," 199 F.R.D(cid:13) at 260-61, and that reasonable suspicion did not exist. The(cid:13) Court noted two other types of conduct that, in its view,(cid:13) would cause a patdown to become so intrusive that it could(cid:13) be justified only by reasonable suspicion. First, it suggested(cid:13) that a patdown in which an "inspector reaches under the(cid:13) traveler’s clothes, particularly in the breast and crotch(cid:13) area" would require reasonable suspicion. Id. at 258. As an(cid:13) example, the Court cited an earlier incarnation of Saffell v.(cid:13) Crews, discussed above in note 8, where Saffell alleged (an(cid:13) _________________________________________________________________(cid:13) categories of border searches -- routine searches that require no(cid:13) suspicion and nonroutine searches that require reasonable suspicion.(cid:13) United States v. Johnson, 991 F.2d 1287, 1291-92 (7th Cir. 1993).(cid:13) Moreover, to employ a balancing test after Montoya de Hernandez would(cid:13) contravene the Supreme Court’s warning against multiple gradations of(cid:13) suspicion.(cid:13) 9(cid:13) allegation later disproved at a bench trial) that"the(cid:13) inspector reached under Saffell’s bra and under her(cid:13) underwear, examining Saffell’s entire pubic area and(cid:13) inserting her finger in Saffell’s vagina." Id. at 258 n.33.(cid:13) Second, the Court suggested that the "[f]ondling of a(cid:13) traveler’s genital area, breasts, or buttocks area during a(cid:13) patdown would also constitute an intrusive patdown." Id. at(cid:13) 258. The Court defined "fondling" as touching"in a sexual(cid:13) or sexually suggestive manner." Id. at 259. It noted,(cid:13) however, that even an "aggressive" patdown in the crotch or(cid:13) breast area would be sufficiently intrusive to require(cid:13) reasonable suspicion. Id.(cid:13) Anderson, we reiterate, is the sole decision on which(cid:13) Bradley’s argument depends. There is, however, nothing in(cid:13) Anderson, either in the conduct it was reviewing or in the(cid:13) conduct that it hypothesized could warrant relief, that(cid:13) comes close to that which Bradley describes. While, as the(cid:13) District Court observed in Bradley’s case, "[p]enetration of(cid:13) [a woman’s] internal genitalia, absent reasonable suspicion,(cid:13) would in all likelihood constitute an unreasonable search,"(cid:13) JA28-29, customs officials as a matter of standard(cid:13) procedure are permitted to feel over clothing for bulges in(cid:13) an area known by them as a common place for hiding(cid:13) contraband. JA29. That is precisely what they did here, and(cid:13) the District Court correctly rejected Bradley’s Fourth(cid:13) Amendment claim.(cid:13) This was, no doubt, a disagreeable experience for(cid:13) Bradley. That it was not, in our view, a constitutional(cid:13) violation does not mean, in the words of the Saffell Court,(cid:13) "that Customs agents have free license to exceed what is(cid:13) reasonable and proper under the law in order to accomplish(cid:13) their important responsibilities. They must be sensitive to(cid:13) their intrusive powers and not abuse and misuse those(cid:13) powers . . . ." Saffell, 183 F.3d at 659.(cid:13) One final note. The District Court concluded that even if(cid:13) Bradley had made out a prima facie claim of a(cid:13) constitutional violation, the three named customs(cid:13) inspectors would be entitled to qualified immunity. Given(cid:13) our conclusion that no Fourth Amendment violation was(cid:13) stated, we need not reach this issue. We note, however,(cid:13) that in April 1999, when Bradley arrived at the Newark(cid:13) 10(cid:13) International Airport, there was no law post-Montoya de(cid:13) Hernandez, much less "clearly established" law, that at our(cid:13) nation’s borders even an intrusive patdown search was(cid:13) anything other than "routine" such that it required(cid:13) reasonable suspicion.9(cid:13) III.(cid:13) Equal Protection Violation(cid:13) The fact that there was no Fourth Amendment violation(cid:13) does not mean that one was not discriminatorily selected(cid:13) for a search. Bradley alleges that the defendants violated(cid:13) her right to equal protection under the Fifth and(cid:13) Fourteenth Amendments to the United States Constitution(cid:13) when customs officials selected her for a luggage and then(cid:13) a patdown search because she was an African-American (cid:13) female.10 To make an equal protection claim in the profiling(cid:13) context, Bradley was required to prove that the actions of(cid:13) customs officials (1) had a discriminatory effect and (2)(cid:13) were motivated by a discriminatory purpose. Arlington(cid:13) Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-66(cid:13) (1977) (race discrimination); Washington v. Davis, 426 U.S.(cid:13) 229, 239-42 (1976) (race discrimination); Chavez v. Illinois(cid:13) State Police, 251 F.3d 612, 635-36 (7th Cir. 2001) (racial(cid:13) profiling) (citing Personnel Adm’r of Mass. v. Feeney, 442(cid:13) U.S. 256, 272-74 (1979) (gender discrimination). Bradley’s(cid:13) equal protection claim is bereft of proof.(cid:13) _________________________________________________________________(cid:13) 9. Aside from Anderson, Bradley cites three post-Montoya de Hernandez(cid:13) cases for the proposition that "[i]n April 1999, the law was clearly(cid:13) established that reasonable suspicion was required to conduct an(cid:13) intrusive patdown search." App. Br. at 17. None stands for that(cid:13) proposition. One involved the search of a suitcase, not a patdown; the(cid:13) second involved an alimentary canal search, with the patdown that(cid:13) preceded that search not challenged; and the third, our decision in(cid:13) United States v. Hyde, specifically stated that"[w]e have no occasion(cid:13) here to speak to [that issue]." 37 F.3d at 118 n.1.(cid:13) 10. Bradley also avers that black women are generally targeted by(cid:13) customs officials for airport searches at Newark International Airport. As(cid:13) the District Court properly noted, however, this is not a class action.(cid:13) 11(cid:13) To prove discriminatory effect, Bradley had to show that(cid:13) she is a member of a protected class and that she was(cid:13) treated differently from similarly situated individuals in an(cid:13) unprotected class. Chavez, 251 F.3d at 636; see also United(cid:13) States v. Armstrong, 517 U.S. 456, 469 (1996); Andrews v.(cid:13) City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990).(cid:13) Bradley, an African-American woman, is clearly a member(cid:13) of a protected class. Thus, our sole inquiry under this(cid:13) prong of the analysis is whether Bradley submitted(cid:13) evidence that customs officials treated her differently from(cid:13) similarly situated members of an unprotected class.(cid:13) Discriminatory effect may be proven by naming similarly(cid:13) situated members of an unprotected class who were not(cid:13) selected for the same search or, in some cases, by(cid:13) submitting statistical evidence of bias. Chavez , 251 F.3d at(cid:13) 636.11(cid:13) While her primary complaint is, again, directed to the(cid:13) patdown, Bradley also argues that customs officials(cid:13) selected her for the luggage search based on the fact that(cid:13) a group of unidentified but similarly situated white males(cid:13) -- similarly situated because they were wearing baseball(cid:13) caps while she was wearing a wool designer hat with two(cid:13) braids hanging down the sides -- were not selected to have(cid:13) their luggage searched. Even if we assume that the white(cid:13) males were similarly situated, an assumption we are(cid:13) somewhat loathe to make, Bradley failed to submit any(cid:13) evidence that she was unfairly singled out. The mere fact(cid:13) _________________________________________________________________(cid:13) 11. In profiling cases, where it is often difficult to submit direct evidence(cid:13) that members of an unprotected class were not targeted for a search,(cid:13) statistical evidence of discrimination may be the only means of proving(cid:13) a discriminatory effect. As the Seventh Circuit explained:(cid:13) In a meritorious selective prosecution claim, a criminal defendant(cid:13) would be able to name others arrested for the same offense who(cid:13) were not prosecuted by the arresting law enforcement agency;(cid:13) conversely, plaintiffs who allege that they were stopped due to racial(cid:13) profiling would not, barring some type of test operation, be able to(cid:13) provide the names of other similarly situated motorists who were not(cid:13) stopped.(cid:13) Chavez, 251 F.3d at 640. And "[w]hile it is true that statistics alone(cid:13) rarely state a violation of equal protection . . . they can be sufficient to(cid:13) establish discriminatory effect." Id.(cid:13) 12(cid:13) that a few unidentified white males on a flight of many(cid:13) passengers were not selected when Bradley was does not,(cid:13) without more, demonstrate a discriminatory effect. As to(cid:13) her selection for a patdown search, Bradley has conceded(cid:13) that the only other person on her flight of whom she was(cid:13) aware who was selected for a patdown search was a white(cid:13) male who, we note, was found carrying drugs. This(cid:13) certainly does not indicate discrimination. Finally, Bradley(cid:13) failed to submit any statistical evidence of bias. There was,(cid:13) then, no evidence of discriminatory effect before the District(cid:13) Court.(cid:13) Bradley does not contest this conclusion; rather, she(cid:13) argues that she failed to meet her burden of proof because(cid:13) the District Court restricted discovery and then granted(cid:13) summary judgment prematurely. "[W]e review a claim that(cid:13) the district court has prematurely granted summary(cid:13) judgment for abuse of discretion." Pastore v. Bell Telephone(cid:13) Co. of Penn., 24 F.3d 508, 510 (3d Cir. 1994). Although(cid:13) Bradley claims that additional discovery was critical to her(cid:13) case, she failed to file an affidavit pursuant to Federal(cid:13) Rules of Civil Procedure 56(f) identifying "with specificity(cid:13) what particular information is sought; how, if uncovered, it(cid:13) would preclude summary judgment; and why it has not(cid:13) previously been obtained." St. Surin v. Virgin Island Daily(cid:13) News, Inc., 21 F.3d 1309, 1314 (3d Cir. 1994) (citation and(cid:13) internal quotations omitted). We have made clear that, in(cid:13) all but the most exceptional cases, failure to comply with(cid:13) Rule 56(f) is fatal to a claim of insufficient discovery on(cid:13) appeal. Pastore, 24 F.3d at 511 (citing Falcone v. Columbia(cid:13) Pictures Indus., Inc., 805 F.2d 115, 117 n.2) (3d Cir. 1986)).(cid:13) While Bradley argues that she constructively met the Rule(cid:13) 56(f) affidavit requirement, we have generally rejected(cid:13) constructive compliance arguments. See. e.g., Radich v.(cid:13) Goode, 886 F.2d 1391, 1394 (3d Cir. 1989). Given the(cid:13) strong presumption against a finding of constructive(cid:13) compliance with Rule 56(f), the District Court did not abuse(cid:13) its discretion when it granted summary judgment without(cid:13) allowing additional discovery.12(cid:13) _________________________________________________________________(cid:13) 12. And this is not one of the "exceptional" cases falling outside of the(cid:13) general rule that constructive compliance with Rule 56(f) will not suffice.(cid:13) 13(cid:13) The discovery Bradley now says she needed was discovery she had(cid:13) received, including the documents relating to her entry on April 5, 1999;(cid:13) discovery that was irrelevant to her case; or discovery that did not exist(cid:13) -- for example, ten years of "incident logs and Search and Seizure(cid:13) Reports" concerning passengers arriving on Flight 19 from Jamaica. The(cid:13) government has advised that there are no such records and, even if(cid:13) there were, prior to late 1999 "no notations of the race" -- or(cid:13) presumably, the gender -- "of passengers sent for secondary inspections(cid:13) and/or pat-down searches were required to be kept." Appellee’s Br. at(cid:13) 17.(cid:13) Evaluating the record that was before the District Court,(cid:13) we conclude that Bradley failed to present evidence that,(cid:13) when viewed in the light most favorable to her, would(cid:13) demonstrate a "discriminatory effect." Accordingly we need(cid:13) not determine, as the District Court did not need to(cid:13) determine, whether the customs officials acted with a(cid:13) "discriminatory purpose" when they selected Bradley for the(cid:13) luggage and patdown searches.(cid:13) IV.(cid:13) Conclusion(cid:13) The order of the District Court will be affirmed.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 14
