Bradley v. United States , 299 F.3d 197 ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-25-2002
    Bradley v. USA
    Precedential or Non-Precedential: Precedential
    Docket No. 01-4103
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    Recommended Citation
    "Bradley v. USA" (2002). 2002 Decisions. Paper 434.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/434
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    PRECEDENTIAL
    Filed July 25, 2002
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 01-4103
    YVETTE BRADLEY,
    Appellant
    v.
    THE UNITED STATES OF AMERICA; UNITED STATES
    CUSTOMS SERVICE; RAYMOND W. KELLY,
    COMMISSIONER OF THE UNITED STATES CUSTOMS
    SERVICE, in his official capacity; SAMUEL H. BANKS,
    DEPUTY COMMISSIONER OF THE UNITED STATES
    CUSTOMS SERVICE, in his official capacity; ROBERT J.
    MCNAMARA, Acting Assistant Commissioner for the Office
    of Field Operations, United States Customs Service, in his
    official capacity; CHARLES WINWOOD, former Assistant
    Commissioner for the Office of Field Operations, United
    States Customs Service, in his office capacity; RICARDO
    BOWEN, Passenger Service Representative of the United
    States Customs Service at Newark Airport, in his official
    capacity; KATHLEEN HAAGE, Port Director of the United
    States Customs Service in the New York/Newark Area, in
    her official capacity; UNITED STATES CUSTOMS
    SUPERVISORY INSPECTOR LUCIANA, in his official
    capacity; UNITED STATES CUSTOMS INSPECTORS,
    Holding Badge Numbers 40211, 15538 and 37018, In
    Their Official and individual capacities; AND AN
    UNKNOWN NUMBER OF UNNAMED AND UNKNOWN
    INSPECTORS AND SUPERVISORS OF THE UNITED
    STATES CUSTOMS SERVICE, in their official and
    individual capacities; MICHELLE MAZZARULLI,
    United States Customs Inspector in her official and
    individual capacities; JACKIE CASTLEBERRY, Customs
    Inspector, in her official and individual capacities;
    ANTHONY SCARINGELLA, Inspector, in his official and
    individual capacities
    ON APPEAL FROM THE
    UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW JERSEY
    D.C. Civil No. 00-cv-02317
    District Judge: The Honorable Nicholas H. Politan
    Argued: June 4, 2002
    Before: SCIRICA, BARRY, and WEIS, Circuit Judg es
    (Opinion Filed: July 25, 2002)
    Alix R. Rubin, Esquire (Argued)
    Lowenstein Sandler
    65 Livingston Avenue
    Roseland, NJ 07068
    -and-
    Edward Barocas, Esquire
    American Civil Liberties Union
    of New Jersey Foundation
    35 Halsey Street, Suite 4B
    Newark, NJ 07102
    Attorneys for Appellant
    Susan C. Cassell, Esquire (Argued)
    Assistant U.S. Attorney
    Office of United States Attorney
    970 Broad Street, Room 700
    Newark, NJ 07102
    Attorney for Appellees
    OPINION OF THE COURT
    BARRY, Circuit Judge:
    Much has been written about "border searches" and we
    will not break much new ground here. We believe it
    2
    appropriate, however, particularly in light of the tragedy of
    September 11th and the anti-terrorism efforts being made
    in its aftermath, to reprise what has been written in the
    course of concluding that the border search at issue here
    was well within the bounds of law. The order of the District
    Court will, therefore, be affirmed.
    I.
    Introduction
    Yvette Bradley, an African-American woman, brought this
    Bivens action1 against the United States, the United States
    Customs Service, and a number of customs inspectors,
    supervisors, and officials. She alleged that her
    constitutional rights were violated when, on April 5, 1999,
    customs inspectors subjected her to a search of her
    suitcase, purse and backpack, as well as a patdown, when
    she arrived at Newark International Airport on a nonstop
    international flight from the island of Jamaica. Bradley
    argued that she was selected because of her race and
    gender, in violation of her equal protection rights under the
    Fifth and Fourteenth Amendments, and that the patdown
    was an illegal search under the Fourth Amendment. 2 The
    District Court granted defendants’ motion for summary
    judgment, and Bradley now appeals. The District Court had
    jurisdiction under 28 U.S.C. S 1331 and we have
    jurisdiction pursuant to 28 U.S.C. S 1291. We review the
    District Court’s grant of summary judgment de novo.
    Chisholm v. McManimon, 
    275 F.3d 315
    , 321 (3d Cir. 2001).
    _________________________________________________________________
    1. Bivens v. Six Unknown Fed. Narcotics Agents, 
    403 U.S. 388
    (1971).
    2. Bradley also raised a privacy claim under the Ninth Amendment, a
    procedural due process claim, a claim for supervisory liability, and
    various other claims against the United States under the Federal Tort
    Claims Act. She does not take issue with the District Court’s decision
    regarding these claims and, accordingly, they are waived. Nagle v.
    Alspach, 
    8 F.3d 141
    , 143 (3d Cir. 1993).
    3
    II.
    The Patdown -- and the Fourth Amendment
    While Bradley refers in passing to the search of her
    luggage, her challenge is directed almost exclusively to the
    patdown, albeit what she describes as the "intrusive
    patdown," to which she was subjected at an immigration
    checkpoint at the Newark International Airport. She argues
    that in granting summary judgment, the District Court
    failed to construe the facts in the light most favorable to
    her as, of course, it was required to do given that she was
    the non-moving party. The facts as relevant to her Fourth
    Amendment claim are, however, largely undisputed. Those
    facts, viewed against well-settled law, defeat that claim.
    It is not disputed, for example, that Jamaica is
    considered by Customs to be a source country for narcotics
    and that Jamaica Airlines Flight 19, on which Bradley
    arrived, is considered by Customs to be a high risk flight
    for narcotics, although Bradley herself does not believe
    either to be so. It is also not disputed that Bradley was
    subjected to a patdown, and not a strip search, a body
    cavity search, or any other type of highly intrusive search.
    It is not disputed that the patdown was done over Bradley’s
    dress by a female inspector in the presence of a second
    female inspector and that Bradley’s skin was not directly
    touched in any intimate area. It is not disputed that when
    the patdown reached what Bradley calls her "groin area,"
    her internal genitalia were not penetrated through the
    dress. Crediting her version of the facts, the touching that
    occurred involved the inspector "us[ing] her fingers to
    inappropriately push on [Bradley’s] breasts and into the
    inner and outer labia," Bradley aff. P 28, the latter
    concededly part of the external genitalia of a woman.3
    _________________________________________________________________
    3. We note, without further comment, that the"us[ing] her fingers to
    inappropriately push . . . into" language is a change from the "rub her
    hands . . . over" language in the Complaint and Amended Complaint.
    JA129, 357. While the District Court appeared to concentrate on the
    language in the complaints rather than the affidavit, we will focus, as
    does Bradley, on the affidavit while reaching the same result the District
    Court reached.
    4
    Bradley, we note, was not wearing underwear and does not
    dispute that had she been doing so, the additional layer of
    cloth would have reduced any intrusion that took place.
    And, of course, Bradley does not dispute that no drugs or
    other contraband were found.
    Neither does Bradley take issue with the law, nor could
    she, for courts, including our Court, have long held that
    routine searches at our nation’s borders are presumed to
    be reasonable under the Fourth Amendment. See , e.g.,
    United States v. Ramsey, 
    431 U.S. 606
    , 616 (1977); United
    States v. Hyde, 
    37 F.3d 116
    , 118-20 (3d Cir. 1994); United
    States v. Ezeiruaku, 
    936 F.2d 136
    , 140 (3d Cir. 1991).
    Immigration checkpoints at international airports are the
    functional equivalent of national borders. Almeida-Sanchez
    v. United States, 
    413 U.S. 266
    , 273 (1973). As a sovereign
    state, the United States has the right to "protect itself by
    stopping and examining persons and property crossing into
    this country." 
    Ramsey, 431 U.S. at 616
    . 4 "Since the
    founding of our Republic, Congress has granted the
    Executive plenary power to conduct routine searches and
    seizures at the border, without probable cause or a
    warrant, in order to regulate the collection of duties and to
    prevent the introduction of contraband into this country."
    United States v. Montoya de Hernandez, 
    473 U.S. 531
    , 537
    (1985). For example, Congress has empowered border
    officials to detain and search "all persons coming into the
    United States from foreign countries." 19 U.S.C.S 1582; see
    also 19 U.S.C. S 1496 (authorizing customs officials to
    search the baggage of persons entering the country); 19
    C.F.R. S 162.6 (authorizing customs officials to inspect and
    search all persons, baggage, and merchandise arriving from
    foreign countries).
    It has, of course, also long been true that our nation’s
    historic concern for the integrity of its borders has been
    _________________________________________________________________
    4. Courts have also long held that an individual’s reasonable expectation
    of privacy is lower at the border than in the interior of the country. See,
    e.g., Carroll v. United States, 
    267 U.S. 132
    , 154 (1925). "[T]he Fourth
    Amendment balance between the interests of the Government and the
    privacy right of the individual is . . . struck much more favorably to the
    Government at the border." United States v. Montoya de Hernandez, 
    473 U.S. 531
    , 540 (1985).
    5
    "heightened by the veritable national crisis in law
    enforcement caused by [the] smuggling of illicit narcotics."
    Montoya de 
    Hernandez, 473 U.S. at 538
    (citing United
    States v. Mendenhall, 
    446 U.S. 544
    , 561 (1980) (Powell, J.,
    concurring). And it is beyond peradventure, as the Seventh
    Circuit has noted, that "the events of September 11, 2001,
    only emphasize the heightened need to conduct searches"
    at our borders. United States v. Yang, 
    286 F.3d 940
    , 944
    n.1 (7th Cir. 2002).
    In Montoya de Hernandez, the Supreme Court’s most
    recent case on border searches, the Court reiterated that,
    because the Fourth Amendment’s balance of
    reasonableness is qualitatively different at the international
    border than in the interior, "routine searches" of persons
    and their effects at the border "are not subject to any
    requirement of reasonable suspicion, probable cause, or
    
    warrant." 473 U.S. at 538
    (citing 
    Ramsey, 431 U.S. at 616
    -
    19; 
    Almeida-Sanchez, 413 U.S. at 272-73
    ; and 
    Carroll, 267 U.S. at 154
    ). The Court had not previously determined what
    level of suspicion would justify the detention of an incoming
    traveler in a nonroutine border search and inspection. In
    Montoya de Hernandez, however, the Court concluded that
    an alimentary canal search was not "routine" and is
    justified only if customs agents reasonably suspect that the
    traveler is smuggling contraband in his or her alimentary
    canal. "Reasonable suspicion" was defined as" ‘a
    particularized and objective basis for suspecting the
    particular person’ " of smuggling contraband. 
    Id. at 541
    (quoting United States v. Cortez, 
    449 U.S. 411
    , 417 (1981)).
    The Court explicitly declined, however, to determine, "what
    level of suspicion, if any, is required for[other] nonroutine
    border searches such as strip, body-cavity, or involuntary
    x-ray searches." 
    Id. at 541
    n.4 (emphasis added).
    In the course of concluding that an alimentary canal
    search must be supported by reasonable suspicion, and
    that reasonable suspicion supported the search of the
    balloon swallower before it, the Court bemoaned the"subtle
    verbal gradations" being developed by courts of appeals to
    enunciate the Fourth Amendment standard of
    reasonableness which "may obscure rather than elucidate
    the meaning of the provision in 
    question." 473 U.S. at 541
    .5
    _________________________________________________________________
    5. The Court noted by way of example that the Ninth Circuit in Montoya
    de Hernandez used "clear indication" of smuggling language, 
    731 F.2d 6
    The Second Circuit viewed this statement as "warning"
    against the development of multiple gradations of suspicion
    to be applied to different types of border searches. United
    States v. Charleus, 
    871 F.2d 265
    , 268 n.2 (2d Cir. 1989).
    While we have not had the occasion to address the
    question left open in Montoya de Hernandez -- the level of
    suspicion, "if any," necessary to conduct at least certain
    types of nonroutine searches -- those court of appeals that
    have done so agree that reasonable suspicion is required.
    United States v. Gonzalez Rincon, 
    36 F.3d 859
    , 864 (9th
    Cir. 1994); United States v. Yakubu, 
    936 F.2d 936
    , 939 (7th
    Cir. 1991); United States v. Carreon, 
    872 F.2d 1436
    , 1442
    (10th Cir. 1989); 
    Charleus, 871 F.2d at 267
    ; United States
    v. Oyekan, 
    786 F.2d 832
    , 837-39 (8th Cir. 1986).
    We are not, of course, dealing here with a strip search or
    a body cavity search or any of the other typical nonroutine
    searches, but, rather, with a patdown. While the Supreme
    Court has never articulated what makes a border search
    routine and has never explicitly classified patdowns as
    routine, of those courts of appeals which have addressed
    the patdown issue since Montoya de Hernandez, none has
    held that a standard patdown at the border is a nonroutine
    search requiring reasonable suspicion and all have held
    _________________________________________________________________
    1369, 1372 (9th Cir. 1984) and the Eleventh Circuit, on almost identical
    facts, adopted a reasonable suspicion standard. United States v.
    Mosquera-Ramirez, 
    729 F.2d 1352
    , 1355 (11th Cir. 1984). Prior to
    Montoya de Hernandez, varying levels of suspicion were found to justify
    various types of border searches. See, e.g., United States v. Dorsey, 
    641 F.2d 1213
    , 1218-19 (7th Cir. 1981) (adopting a case-by-case balancing
    test to determine the precise level of suspicion needed to search and
    declining to label the requisite degrees of suspicion); United States v.
    Sandler, 
    644 F.2d 1163
    , 1166-69 (5th Cir. 1981) (requiring "mere
    suspicion" to justify a routine border search and"reasonable suspicion"
    for more intrusive searches such as a strip search); United States v.
    Grayson, 
    597 F.2d 1225
    , 1228 (9th Cir. 1979) (discussing a "mere
    suspicion" and "no suspicion" standard); United States v. Carter, 
    563 F.2d 1360
    , 1361 (9th Cir. 1977) (holding that "mere suspicion" was
    necessary for patdown searches at the border); United States v. Kallevig,
    
    534 F.2d 411
    , 413 n.4 (1st Cir. 1976) (a border search that is less
    intrusive than a strip search requires no level of suspicion).
    7
    that such patdowns come within the "routine" border
    search category and, thus, require no suspicion whatsoever.6
    United States v. Beras, 
    183 F.3d 22
    , 26 (1st Cir. 1999);
    
    Gonzalez-Rincon, 36 F.3d at 864
    (luggage searches and
    patdowns are routine and do not require reasonable
    suspicion); 
    Carreon, 872 F.2d at 1442
    ; 
    Oyekan 786 F.2d at 835
    ; c.f. 
    Charleus, 871 F.2d at 268
    (the patdown in that
    case was a routine border search requiring no level of
    suspicion at all).7 We now join those courts, although we do
    not foreclose the possibility that a patdown gone awry could
    become so intrusive as to become a nonroutine search
    requiring application of the reasonable suspicion standard.8
    _________________________________________________________________
    6. The Second Circuit has also held that lifting a woman’s skirt at the
    border to look for contraband is a routine search not requiring any
    suspicion. See, e.g., Charleus , 871 F.2d at 268; see also United States v.
    Braks, 
    842 F.2d 509
    , 511-15 (1st Cir. 1988)(noting that the lifting of a
    woman’s skirt to check for contraband was a routine search not
    necessarily requiring any degree of suspicion).
    7. Somewhat surprisingly, the government argues to us and argued
    before the District Court, with the District Court finding it "undisputed,"
    that "[a]t the border, Customs Inspectors can send someone for a
    patdown with mere suspicion." JA47. The argument that "mere
    suspicion" is required is presumably based on the U.S. Customs
    Service’s Personal Search Handbook that, in discussing "Procedures
    Applicable to Patdowns," states that "Some or Mere Suspicion is
    Required." The sole support for this statement, however, is a 1975 Ninth
    Circuit case which does not so clearly stand for the proposition for which
    it is cited and which, in any event, has been effectively overruled by the
    Ninth Circuit’s post-Montoya de Hernandez decision in Gonzalez-Rincon.
    8. It appears that when the Seventh Circuit is called upon to decide the
    issue it, too, will join. The Court, in Saffell v. Crews, 
    183 F.3d 655
    (7th
    Cir. 1999), although reviewing only a partial strip search, nonetheless
    observed that the patdown which had preceded the strip search revealed
    a bulge through Saffell’s clothes "in the most intimate area of her body,
    a place where drugs are sometimes known to be secreted by 
    women." 183 F.3d at 657
    . It found that "there was justification" for the patdown,
    
    id., and did
    not even suggest that patting down the crotch area turned
    the patdown into an intrusive patdown search requiring reasonable
    suspicion. It is unclear, however, by the use of the word "justification"
    whether it believed that the balancing test adopted in its 1981 Dorsey
    case, see 
    n.5 supra
    , continues to be viable after Montoya de Hernandez.
    It appears, however, that, while not ignoring Dorsey, the Court
    subsequently dropped that test when it held that there are but two
    8
    This, says Bradley, was just such a case, with the
    patdown to which she was subjected so intrusive that,
    although it was concededly not a body cavity or strip
    search, it became "nonroutine," thereby requiring
    reasonable suspicion which, she argues, did not exist. We
    need not decide whether the customs inspectors reasonably
    suspected that Bradley was smuggling contraband because
    we conclude that the patdown was not so intrusive as to be
    transformed into a nonroutine border search.
    Bradley has not pointed us to any court of appeals’
    decision subsequent to Montoya de Hernandez which has
    held that on a border search even an "intrusive" patdown is
    nonroutine and must be supported by reasonable
    suspicion. See n.9 infra. Rather, she relies for this
    proposition on Anderson v. Cornejo, 
    199 F.R.D. 228
    (N.D.
    Ill. 2000), a decision which simply does not do for Bradley
    what it did for the one named plaintiff in that class action
    who survived a motion for summary judgment. Viewing the
    facts in her favor, the District Court found that the plaintiff
    was subjected to an intrusive patdown search which
    involved the customs inspector pushing her hand through
    plaintiff ’s clothes and her finger into plaintiff ’s vagina six
    times causing pain. The Court found that this was"close
    enough to a cavity search and done repeatedly enough to
    be more than just a standard patdown search," 199 F.R.D
    at 260-61, and that reasonable suspicion did not exist. The
    Court noted two other types of conduct that, in its view,
    would cause a patdown to become so intrusive that it could
    be justified only by reasonable suspicion. First, it suggested
    that a patdown in which an "inspector reaches under the
    traveler’s clothes, particularly in the breast and crotch
    area" would require reasonable suspicion. 
    Id. at 258.
    As an
    example, the Court cited an earlier incarnation of Saffell v.
    Crews, discussed above in note 8, where Saffell alleged (an
    _________________________________________________________________
    categories of border searches -- routine searches that require no
    suspicion and nonroutine searches that require reasonable suspicion.
    United States v. Johnson, 
    991 F.2d 1287
    , 1291-92 (7th Cir. 1993).
    Moreover, to employ a balancing test after Montoya de Hernandez would
    contravene the Supreme Court’s warning against multiple gradations of
    suspicion.
    9
    allegation later disproved at a bench trial) that"the
    inspector reached under Saffell’s bra and under her
    underwear, examining Saffell’s entire pubic area and
    inserting her finger in Saffell’s vagina." 
    Id. at 258
    n.33.
    Second, the Court suggested that the "[f]ondling of a
    traveler’s genital area, breasts, or buttocks area during a
    patdown would also constitute an intrusive patdown." 
    Id. at 258.
    The Court defined "fondling" as touching"in a sexual
    or sexually suggestive manner." 
    Id. at 259.
    It noted,
    however, that even an "aggressive" patdown in the crotch or
    breast area would be sufficiently intrusive to require
    reasonable suspicion. 
    Id. Anderson, we
    reiterate, is the sole decision on which
    Bradley’s argument depends. There is, however, nothing in
    Anderson, either in the conduct it was reviewing or in the
    conduct that it hypothesized could warrant relief, that
    comes close to that which Bradley describes. While, as the
    District Court observed in Bradley’s case, "[p]enetration of
    [a woman’s] internal genitalia, absent reasonable suspicion,
    would in all likelihood constitute an unreasonable search,"
    JA28-29, customs officials as a matter of standard
    procedure are permitted to feel over clothing for bulges in
    an area known by them as a common place for hiding
    contraband. JA29. That is precisely what they did here, and
    the District Court correctly rejected Bradley’s Fourth
    Amendment claim.
    This was, no doubt, a disagreeable experience for
    Bradley. That it was not, in our view, a constitutional
    violation does not mean, in the words of the Saffell Court,
    "that Customs agents have free license to exceed what is
    reasonable and proper under the law in order to accomplish
    their important responsibilities. They must be sensitive to
    their intrusive powers and not abuse and misuse those
    powers . . . ." 
    Saffell, 183 F.3d at 659
    .
    One final note. The District Court concluded that even if
    Bradley had made out a prima facie claim of a
    constitutional violation, the three named customs
    inspectors would be entitled to qualified immunity. Given
    our conclusion that no Fourth Amendment violation was
    stated, we need not reach this issue. We note, however,
    that in April 1999, when Bradley arrived at the Newark
    10
    International Airport, there was no law post-Montoya de
    Hernandez, much less "clearly established" law, that at our
    nation’s borders even an intrusive patdown search was
    anything other than "routine" such that it required
    reasonable suspicion.9
    III.
    Equal Protection Violation
    The fact that there was no Fourth Amendment violation
    does not mean that one was not discriminatorily selected
    for a search. Bradley alleges that the defendants violated
    her right to equal protection under the Fifth and
    Fourteenth Amendments to the United States Constitution
    when customs officials selected her for a luggage and then
    a patdown search because she was an African-American
    female.10 To make an equal protection claim in the profiling
    context, Bradley was required to prove that the actions of
    customs officials (1) had a discriminatory effect and (2)
    were motivated by a discriminatory purpose. Arlington
    Heights v. Metro. Housing Dev. Corp., 
    429 U.S. 252
    , 264-66
    (1977) (race discrimination); Washington v. Davis, 
    426 U.S. 229
    , 239-42 (1976) (race discrimination); Chavez v. Illinois
    State Police, 
    251 F.3d 612
    , 635-36 (7th Cir. 2001) (racial
    profiling) (citing Personnel Adm’r of Mass. v. Feeney, 
    442 U.S. 256
    , 272-74 (1979) (gender discrimination). Bradley’s
    equal protection claim is bereft of proof.
    _________________________________________________________________
    9. Aside from Anderson, Bradley cites three post-Montoya de Hernandez
    cases for the proposition that "[i]n April 1999, the law was clearly
    established that reasonable suspicion was required to conduct an
    intrusive patdown search." App. Br. at 17. None stands for that
    proposition. One involved the search of a suitcase, not a patdown; the
    second involved an alimentary canal search, with the patdown that
    preceded that search not challenged; and the third, our decision in
    United States v. Hyde, specifically stated that"[w]e have no occasion
    here to speak to [that 
    issue]." 37 F.3d at 118
    n.1.
    10. Bradley also avers that black women are generally targeted by
    customs officials for airport searches at Newark International Airport. As
    the District Court properly noted, however, this is not a class action.
    11
    To prove discriminatory effect, Bradley had to show that
    she is a member of a protected class and that she was
    treated differently from similarly situated individuals in an
    unprotected class. 
    Chavez, 251 F.3d at 636
    ; see also United
    States v. Armstrong, 
    517 U.S. 456
    , 469 (1996); Andrews v.
    City of Philadelphia, 
    895 F.2d 1469
    , 1478 (3d Cir. 1990).
    Bradley, an African-American woman, is clearly a member
    of a protected class. Thus, our sole inquiry under this
    prong of the analysis is whether Bradley submitted
    evidence that customs officials treated her differently from
    similarly situated members of an unprotected class.
    Discriminatory effect may be proven by naming similarly
    situated members of an unprotected class who were not
    selected for the same search or, in some cases, by
    submitting statistical evidence of bias. Chavez , 251 F.3d at
    636.11
    While her primary complaint is, again, directed to the
    patdown, Bradley also argues that customs officials
    selected her for the luggage search based on the fact that
    a group of unidentified but similarly situated white males
    -- similarly situated because they were wearing baseball
    caps while she was wearing a wool designer hat with two
    braids hanging down the sides -- were not selected to have
    their luggage searched. Even if we assume that the white
    males were similarly situated, an assumption we are
    somewhat loathe to make, Bradley failed to submit any
    evidence that she was unfairly singled out. The mere fact
    _________________________________________________________________
    11. In profiling cases, where it is often difficult to submit direct evidence
    that members of an unprotected class were not targeted for a search,
    statistical evidence of discrimination may be the only means of proving
    a discriminatory effect. As the Seventh Circuit explained:
    In a meritorious selective prosecution claim, a criminal defendant
    would be able to name others arrested for the same offense who
    were not prosecuted by the arresting law enforcement agency;
    conversely, plaintiffs who allege that they were stopped due to racial
    profiling would not, barring some type of test operation, be able to
    provide the names of other similarly situated motorists who were not
    stopped.
    
    Chavez, 251 F.3d at 640
    . And "[w]hile it is true that statistics alone
    rarely state a violation of equal protection . . . they can be sufficient to
    establish discriminatory effect." 
    Id. 12 that
    a few unidentified white males on a flight of many
    passengers were not selected when Bradley was does not,
    without more, demonstrate a discriminatory effect. As to
    her selection for a patdown search, Bradley has conceded
    that the only other person on her flight of whom she was
    aware who was selected for a patdown search was a white
    male who, we note, was found carrying drugs. This
    certainly does not indicate discrimination. Finally, Bradley
    failed to submit any statistical evidence of bias. There was,
    then, no evidence of discriminatory effect before the District
    Court.
    Bradley does not contest this conclusion; rather, she
    argues that she failed to meet her burden of proof because
    the District Court restricted discovery and then granted
    summary judgment prematurely. "[W]e review a claim that
    the district court has prematurely granted summary
    judgment for abuse of discretion." Pastore v. Bell Telephone
    Co. of Penn., 
    24 F.3d 508
    , 510 (3d Cir. 1994). Although
    Bradley claims that additional discovery was critical to her
    case, she failed to file an affidavit pursuant to Federal
    Rules of Civil Procedure 56(f) identifying "with specificity
    what particular information is sought; how, if uncovered, it
    would preclude summary judgment; and why it has not
    previously been obtained." St. Surin v. Virgin Island Daily
    News, Inc., 
    21 F.3d 1309
    , 1314 (3d Cir. 1994) (citation and
    internal quotations omitted). We have made clear that, in
    all but the most exceptional cases, failure to comply with
    Rule 56(f) is fatal to a claim of insufficient discovery on
    appeal. 
    Pastore, 24 F.3d at 511
    (citing Falcone v. Columbia
    Pictures Indus., Inc., 
    805 F.2d 115
    , 117 n.2) (3d Cir. 1986)).
    While Bradley argues that she constructively met the Rule
    56(f) affidavit requirement, we have generally rejected
    constructive compliance arguments. See. e.g., Radich v.
    Goode, 
    886 F.2d 1391
    , 1394 (3d Cir. 1989). Given the
    strong presumption against a finding of constructive
    compliance with Rule 56(f), the District Court did not abuse
    its discretion when it granted summary judgment without
    allowing additional discovery.12
    _________________________________________________________________
    12. And this is not one of the "exceptional" cases falling outside of the
    general rule that constructive compliance with Rule 56(f) will not suffice.
    13
    The discovery Bradley now says she needed was discovery she had
    received, including the documents relating to her entry on April 5, 1999;
    discovery that was irrelevant to her case; or discovery that did not exist
    -- for example, ten years of "incident logs and Search and Seizure
    Reports" concerning passengers arriving on Flight 19 from Jamaica. The
    government has advised that there are no such records and, even if
    there were, prior to late 1999 "no notations of the race" -- or
    presumably, the gender -- "of passengers sent for secondary inspections
    and/or pat-down searches were required to be kept." Appellee’s Br. at
    17.
    Evaluating the record that was before the District Court,
    we conclude that Bradley failed to present evidence that,
    when viewed in the light most favorable to her, would
    demonstrate a "discriminatory effect." Accordingly we need
    not determine, as the District Court did not need to
    determine, whether the customs officials acted with a
    "discriminatory purpose" when they selected Bradley for the
    luggage and patdown searches.
    IV.
    Conclusion
    The order of the District Court will be affirmed.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    14
    

Document Info

Docket Number: 01-4103

Citation Numbers: 299 F.3d 197, 2002 U.S. App. LEXIS 14960, 2002 WL 1723779

Judges: Scirica, Barry, Weis

Filed Date: 7/25/2002

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (31)

Ronald Chisolm v. Patrick McManimon Jr., Director of Mercer ... , 275 F.3d 315 ( 2001 )

Almeida-Sanchez v. United States , 93 S. Ct. 2535 ( 1973 )

United States v. Cortez , 101 S. Ct. 690 ( 1981 )

Gabriel St. Surin v. Virgin Islands Daily News, Inc. ... , 21 F.3d 1309 ( 1994 )

United States v. Jewel Rose Hyde Patricia Yvonne Gray Karen ... , 37 F.3d 116 ( 1994 )

mary-nagle-james-a-shertzer-s-enola-gochenauer-alan-shaffer-eugene-c , 8 F.3d 141 ( 1993 )

United States v. Enrique Carreon , 872 F.2d 1436 ( 1989 )

United States v. Jimmie C. Dorsey , 641 F.2d 1213 ( 1981 )

Village of Arlington Heights v. Metropolitan Housing ... , 97 S. Ct. 555 ( 1977 )

Bivens v. Six Unknown Named Agents of Federal Bureau of ... , 91 S. Ct. 1999 ( 1971 )

United States v. Armstrong , 116 S. Ct. 1480 ( 1996 )

United States v. Montoya De Hernandez , 105 S. Ct. 3304 ( 1985 )

United States v. Beras , 183 F.3d 22 ( 1999 )

Samuel J. Falcone v. Columbia Pictures Industries, Inc. ... , 805 F.2d 115 ( 1986 )

charles-radich-and-howard-walton-v-w-wilson-goode-john-e-flaherty , 886 F.2d 1391 ( 1989 )

United States v. Ronald Odom Carter , 563 F.2d 1360 ( 1977 )

United States v. Luis Fernando Mosquera-Ramirez , 729 F.2d 1352 ( 1984 )

United States v. Johnnie Catherine Kallevig , 534 F.2d 411 ( 1976 )

United States v. Roger Glen Grayson, United States of ... , 597 F.2d 1225 ( 1979 )

United States v. Willa M. Johnson , 991 F.2d 1287 ( 1993 )

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