United States District Court, M.D. North Carolina
[Copyrighted Material Omitted]
For United States of America, Plaintiff: MICHAEL J. SONGER, LEAD ATTORNEY, AARON S. FLEISHER, SILVIA J. DOMINGUEZ-REESE, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC; .
For Terry S. Johnson, in his official capacity as Alamance County Sheriff, Defendant: S. C. KITCHEN, LEAD ATTORNEY, KARLENE S. TURRENTINE, Turrentine Law Firm, PLLC, Raleigh, NC.
MEMORANDUM OPINION AND ORDER
Thomas D. Schroeder, United States District Judge.
The United States of America (the " Government" ) allege that Defendant Terry S. Johnson, in his official capacity as Sheriff of Alamance County, North Carolina, engaged in a pattern or practice of discriminatory law enforcement activities directed against Latinos, in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution. The Government brings this action through Section 210401 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141. (Doc. 1.) Before the court are cross-motions for summary judgment. (Docs. 86, 88.) For the reasons set forth below, the Government's motion is denied and Johnson's motion is granted in part and denied in part.
Alamance County, located in central North Carolina, is home to approximately 154,000 people. U.S. Census Bureau, State & County QuickFacts, http://quickfacts.census.gov/qfd/states/37/ 37001.html (last revised June 11, 2014). Of that number, approximately 66.6% are white (non-Hispanic), 19.2% are black, and 11.6% are Hispanic. Id. The county's Hispanic population is a recent phenomenon, having
grown from 736 in 1990 to almost 17,000 in 2010. (Doc. 11-3 at 3; Doc. 1 ¶ 12.)
The Alamance County Sheriff's Office (" ACSO" ) is the largest law enforcement agency in the county and employs 266 total officers. (Doc. 89-2 at 7.) Johnson has been the sheriff since 2002. (Doc. 86-4 at 30.) On January 10, 2007, U.S. Immigration and Customs Enforcement (" ICE" ) entered into a Memorandum of Agreement (" MOA" ) with Johnson, which granted the ACSO limited authority to investigate and enforce immigration violations, pursuant to Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g) (" the 287(g) program" ). (Doc. 89-4.) In June 2010, the Government began investigating Johnson and the ACSO regarding " allegations of discriminatory policing and unconstitutional searches and seizures." (Doc. 89- 58 at 2; Doc. 11-3 at 1.) On September 18, 2012, the Government issued an 11-page summary of its investigation and detailed charges of discrimination, and it terminated the 287(g) program. (Doc. 1 ¶ 15; Doc. 11 at 8; Doc. 11-3.) This action followed. (Doc. 1 (filed Dec. 20, 2012).)
Generally, the Government contends that Johnson and the ACSO target Latinos for law enforcement actions, including traffic stops, vehicle checkpoints, and immigration referrals;  foster a culture of bias against Latinos; and fail to take commonly used measures to prevent discriminatory policing. (Docs. 1, 89.) The Government argues that such actions violate the Fourth and Fourteenth Amendments, denying the Latino population of Alamance County equal protection of the laws. Johnson denies those allegations, arguing that he and his office pursue criminals, whether or not they are Latino, and denying that he has made derogatory statements about Latinos or fostered a culture of bias against Latinos at the ACSO. (Docs. 6, 87.)
Both parties have moved for summary judgment. (Docs. 86, 88.) Both parties have responded (Docs. 95, 96) and replied (Docs. 99, 101). Pursuant to this court's May 8, 2014 order, the Government also filed a limited surreply on the issue of statute of limitations. (Doc. 106.) A hearing on the pending motions for summary judgment was held on June 13, 2014. As the case is highly fact-intensive and the parties dispute essentially all of the substantive facts, further factual discussion is not warranted. Facts will be introduced as needed in the legal analysis and construed in favor of the non-moving party, as appropriate.
A. Standard of Review
" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing that no genuine dispute of material fact remains. Where the non-moving party has the burden of proof, the moving party is entitled to summary judgment if it shows the absence of material disputed facts. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). For the purposes of these motions, the court regards statements of the non-moving party as true and draws all inferences in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But a non-moving party must establish more than the " mere
existence of a scintilla of evidence" to support his position. Id. at 252. If the evidence is " merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50. Ultimately, summary judgment is appropriate where the non-movant fails to offer " evidence on which the jury could reasonably find for the plaintiff." Id. at 252.
Both parties focus their motions for summary judgment on the two counts alleged in the Government's complaint -- violations of the Fourteenth and Fourth Amendments as brought through § 14141 -- but Johnson raises two partial defenses that should be addressed first: statute of limitations and mootness.
B. Statute of Limitations
Johnson asserts that the Government's action is subject to a four-year statute of limitations, 28 U.S.C. § 1658(a), and that the discriminatory acts alleged are discrete incidents rather than a continuing violation. (Doc. 99 at 6-10.) He therefore contends that the Government cannot predicate § 14141 liability on any acts that occurred prior to December 20, 2008.(Id.) The Government argues that no statute of limitations applies to § 14141 (Doc. 106 at 2-3) and, moreover, that its claims seek to remedy an ongoing pattern or practice of civil rights violations, for which no limitations period applies (id. at 3-5).
The parties agree that § 14141 contains no statute of limitations. The Government relies on a Magistrate Judge's report and recommendation in United States v. City of Columbus, Ohio, Civ. A. No. 2:99CV1097, 2000 WL 1133166 (S.D. Ohio Aug. 3, 2000), which concluded that § 14141 had no limitations period. Id. at *10. The Magistrate Judge rejected an argument that the two-year statute of limitations applicable to claims under 42 U.S.C. § 1983 applied to the § 14141 claims in that case, noting that " in actions brought in its sovereign capacity on behalf of the public interest, the United States is not bound by any limitations period . . . unless Congress explicitly provides otherwise." Id. Finding -- without discussion - no express statute otherwise, the court declined to impose any limitation but quickly noted that the motion to dismiss stage was not " the proper vehicle for invoking such principles." Id. Thus, the court's conclusion is dicta and omits any discussion of § 1658's four-year limitations period.
Section 1658 is entitled " Time limitations on the commencement of civil actions arising under Acts of Congress" and provides:
Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.
28 U.S.C. § 1658(a). The statute was enacted December 1, 1990, some four years before § 14141's enactment on September 13, 1994. Therefore, by the plain language of § 1658, it applies to claims under § 14141, unless " otherwise provided by law."
The Government first argues that " [t]he principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign Government to enforce a public right, or to assert a public interest, is established past all controversy or doubt," citing the dissent in Occidental Life Insurance Co. v. EEOC.
432 U.S. 355, 382, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) (quoting United States v. Beebe, 127 U.S. 338, 344, 8 S.Ct. 1083, 32 L.Ed. 121 (1888)). In Occidental Life, the majority held that EEOC enforcement actions are not subject to State statutes of limitations, and the dissent argued that the notion that the Government was suing as sovereign was misplaced because it was not suing to redress its injury, but rather the injury of others. Id. at 383. Johnson contends that the same could be said here. Moreover, here, the Government must contend with § 1658 -- a federal, not State, statute of limitations - which was not enacted at the time of Occidental Life. The Government has failed to consider this development.
Even assuming Johnson is correct and § 1658 limits § 14141 actions, however, it is not clear when a § 14141 claim accrues. Neither party has pointed the court to any case law addressing that question, and the court has found none. In the absence of direct authority, Johnson analogizes § 14141 to Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq., which addresses unlawful discrimination in employment. He contends that § 14141's " pattern or practice" requirement is similar to an " unlawful employment practice," which is predicated on a discrete incident or incidents. (Doc. 99 at 8-9.) Under Title VII law, each wrongful act is considered independently from other acts for timeliness purposes, and " discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
The Government responds that Johnson's analogy to an unlawful employment practice is inapt because Congress enacted specific time limitations for Title VII claims but did not for § 14141. (Doc. 106 at 2-3.) It also contends that § 14141's " pattern or practice" is not similar to discrete acts of unlawful employment practices, which accrue when they occur, but instead that a § 14141 claim " 'accrues' only after a jurisdiction engages in a pattern or practice of violating federal law." (Id. at 3 n.2.) The Government maintains that each individual discriminatory act it alleges is not a § 14141 claim in and of itself, but rather is " relevant evidence to proving the existence of a larger pattern." (Id.)
The Government further argues that § 1658 is inapplicable because it seeks injunctive relief against an ongoing violation. Although the Government presents evidence of conduct and statements reaching back to 2007, some of the evidence is more recent (e.g., Docs. 89-16, 89-21, 89-22 (emails from 2010, 2011, and 2012)) and some of the evidence is not clearly from a specific date or time period (e.g., Doc. 89-27 at 4 (" primarily" the terms " wetback" and " TONC"  heard at ACSO, without a specific time period identified for use of those terms)). The statistical reports submitted by the United States' proposed experts include data from as recent as 2013. (See Docs. 89-42, 89-45.) This is consistent with the Government's complaint, which alleges that the ACSO's violations began in " ...