Linda Johnson Reginald Johnson v. Aaron Crooks ( 2003 )

LOKEN, Circuit Judge.

This is an action by Linda and Reginald Johnson against Aaron Crooks, a deputy sheriff for Gage County, Nebraska. The Johnsons allege that Crooks stopped Ms. Johnson’s car, not for a traffic violation, but because she is an African-American. They assert federal Fourth Amendment, equal protection, and due process claims and pendent claims under Nebraska state law. Crooks appeals the denial of his motion for partial summary judgment dismissing the federal claims on the basis of qualified immunity. In an interlocutory appeal challenging the denial of qualified immunity, we consider whether “[Crooks’s] conduct which the District Court deemed sufficiently supported for purposes of summary judgment” violated clearly established statutory or constitutional standards of which a reasonable person would have known. Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); see Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.2001). Viewing the summary judgment record in the light most favorable to the Johnsons, who are the non-moving parties, we conclude that the federal claims must be dismissed and therefore reverse.

I. Background.

On April 18, 2000, Linda Johnson was driving through rural Nebraska to Fort Riley, Kansas, where she lived with her husband, Army Sergeant Reginald Johnson. As she passed through the town of Beatrice at about 9:15 a.m., deputy sheriff Crooks pulled out from a parking lot and maneuvered his patrol car through traffic until it was directly behind Ms. Johnson’s vehicle. After following closely for approximately eleven miles, during which Ms. Johnson avers she was careful not to commit any traffic violations, Crooks signaled her to stop and approached her car. Ms. Johnson asked why he pulled her over. Crooks responded, “because you were going left of center.” Ms. Johnson denied crossing the center line and said that Crooks had targeted her because of her race and the type of car she was driving, a 1996 Lexus. Crooks told Ms. Johnson that race had nothing to do with the traffic stop. Rather, he was concerned about her safety. After returning to his patrol car and verifying Ms. Johnson’s identity and license validity, Crooks issued her a written traffic warning. Before departing, Ms. Johnson again accused him of stopping her because of her race, which Crooks again denied.

When Crooks asked her for identification, Ms. Johnson gave him her military identification card because she could not quickly find her driver’s license. The card listed Ms. Johnson as a dependent civilian whose “sponsor” was Reginald Johnson. The following day, Crooks called Fort Riley to report the circumstances of the traffic stop “to the proper military supervisory personnel.” Crooks was told there was no one in the military at Fort Riley named Linda Johnson. He was referred to the Judge Advocate General’s Office, where he spoke, perhaps coincidentally, to Reginald Johnson. Mr. Johnson explained that Ms. Johnson was his wife and a military dependent, not a member of the military. When Crooks complained that Ms. Johnson had accused him of being a racist, Mr. Johnson stated that he believed Ms. Johnson’s version of the traffic stop. Crooks asked to speak to Mr. Johnson’s commanding officer about Ms. Johnson’s warning citation. Mr. Johnson told Crooks how to contact his supervisor, the Deputy Inspector General, but Crooks did not do so.

The Johnsons’ amended complaint seeks compensatory and punitive damages and pleads eight causes of action. The four pendent state law claims are not at issue on this interlocutory appeal. The four federal causes of action are Fourteenth Amendment claims for an unreasonable seizure and detention in violation of the Fourth Amendment, and for racially discriminatory treatment that violated the Johnsons’ equal protection and due process rights. Crooks moved for summary judgment dismissing each federal claim on the grounds of qualified immunity. The district court denied the motion without separately analyzing the various claims.

II. The Fourth Amendment Claim.

The amended complaint alleges that Crooks violated the Fourth and Fourteenth Amendments by stopping and detaining Ms. Johnson for an alleged traffic violation. It is well-settled that “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth and Fourteenth] Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In determining the reasonableness of an automobile search or seizure, the Supreme Court recognizes that automobiles are inherently mobile, motorists have a lessened expectation of privacy when traveling on the public highways, and “[a]utomobiIes, unlike homes, are subjected to pervasive and continuing governmental regulation and controls.” South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); see Cardwell v. Lewis, 417 U.S. 583, 589-91, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

As the district court recognized, “any traffic violation, even a minor one, gives an officer probable cause to stop the violator. [In such a case,] the stop is objectively reasonable and any ulterior motivation on the officer’s part is irrelevant.” Conrod v. Davis, 120 F.3d 92, 96 (8th Cir.1997) (quotation omitted), cert. denied, 523 U.S. 1081, 118 S.Ct. 1531, 140 L.Ed.2d 681 (1998); see Whren, 517 U.S. at 811-13, 116 S.Ct. 1769. However, the court denied summary judgment on the Fourth Amendment claim because Linda Johnson has averred that she did not cross the center line prior to the stop, creating a disputed factual issue that cannot be resolved at this stage of the proceedings as to whether Crooks had probable cause to make the stop. The issue on appeal, then, is whether the dispute over whether Ms. Johnson in fact crossed the center line is material for purposes of Crooks’s qualified immunity defense to the Johnsons’ § 1983 claim for damages.

On appeal, Crooks virtually concedes, and we accept, the district court’s determination that Ms. Johnson’s affidavit asserting she did not commit a traffic violation creates a genuine fact dispute concerning whether Crooks had probable cause to stop and detain her for that reason. But the district court’s analysis overlooked the investigatory aspect of traffic stops in general and of this stop in particular. Because a brief traffic stop is a relatively minor intrusion on the motorist’s privacy interests, its Fourth Amendment reasonableness is judged by the standard that applies to investigatory stops — whether “the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quotation omitted); see United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001). An officer with reasonable suspicion may stop the automobile and may question the driver “to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

Even routine traffic violations may require some investigation into the motorist’s conduct or condition, followed by the exercise of judgment in deciding how to enforce the traffic laws in that situation. For example, an officer who initially stops a car for running a red light may then accept the motorist’s explanation that the light was yellow when she entered the intersection and let the driver depart with an oral or written warning. At that point, the investigatory stop is complete. See United States v. White, 81 F.3d 775, 777-78 (8th Cir.), cert. denied, 519 U.S. 1011, 117 S.Ct. 518, 136 L.Ed.2d 406 (1996). The motorist has suffered a delay, perhaps an irritating or even harmful delay, but “a routine traffic stop is an ordinary incident of driving.” Ford v. Wilson, 90 F.3d 245, 248 (7th Cir.1996), cert. denied, 520 U.S. 1105, 117 S.Ct. 1110, 137 L.Ed.2d 311 (1997). If the motorist then brings a § 1983 damage action, does her Fourth Amendment claim survive summary judgment and require a jury trial simply because she avers she did not run the red light? We think not. When an officer stops a motorist for a perceived traffic violation, briefly questions the motorist about what occurred, and lets the motorist depart without issuing a citation or expanding the investigation beyond the question of a traffic violation, the officer has not unreasonably intruded upon the privacy and liberty interests protected by the Fourth Amendment. As the Supreme Court stated in holding police officers not liable under § 1983 for negligently arresting the wrong individual, “The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted — indeed, for every suspect released.” Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).

In this case, Crooks observed Ms. Johnson’s car crossing the center line more than once on a two-lane rural highway rather early in the morning. In his affidavit supporting the motion for summary judgment on qualified immunity grounds, Crooks explained his reasons for stopping Linda Johnson’s car:

4.... I then observed that the car immediately ahead of me on several occasions crossed the centerline slightly into the oncoming traffic lane.

5. It is and was ... my practice ... depending on the traffic and potential danger involved, not to stop a motor vehicle that drifts slightly over the cen-terline one or perhaps two times. However, if the vehicle ... continues to cross the centerline more than once or twice, I pull the car over to further investigate. One factor that I take into consideration ... is that in the early morning hours and evening hours it is possible that the driver is drowsy ... or may be suffering from some illness or may possibly be intoxicated.

* * * * * *

7. The probable cause and my reason for stopping the car ahead of me, which I later found out to be driven by Plaintiff Ms. Linda Johnson, was to investigate the driver’s condition and to issue a verbal warning, written warning, or a citation.

Crossing the center line of a two-lane highway is a violation of the statutory Nebraska Rules of the Road. See neb. Rev. Stat. § 60-6,131. More significantly from the standpoint of public safety, driving while excessively fatigued or otherwise impaired is a condition that threatens motorist safety and doubtless violates Nebraska’s careless driving prohibition. See neb. Rev. Stat. § 60-6,212. Thus, it was objectively reasonable for Crooks to stop Ms. Johnson’s car to determine if she was competent to continue her travels. When satisfied she was, Crooks let Ms. Johnson go with a warning rather than a citation, ending the investigatory stop. In these circumstances, we believe there was no violation of Ms. Johnson’s Fourth Amendment rights as a matter of law. At a minimum, Crooks is entitled to qualified immunity from her Fourth Amendment claim because his conduct in enforcing the Nebraska Rules of the Road was objectively reasonable.

III. The Equal Protection Claim.

The Johnsons assert a separate Fourteenth Amendment claim under 42 U.S.C. §§ 1981 and 1983, alleging that Crooks made the traffic stop on account of Ms. Johnson’s race. This is a cognizable equal protection claim. “[T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.” Whren, 517 U.S. at 813, 116 S.Ct. 1769. This claim does not require proof that Ms. Johnson was stopped without probable cause or reasonable suspicion to believe she committed a traffic violation. But she must prove that Crooks exercised his discretion to enforce the traffic laws on account of her race, which requires proof of both discriminatory effect and discriminatory purpose. See United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). When the claim is selective enforcement of the traffic laws or a racially-motivated arrest, the plaintiff must normally prove that similarly situated individuals were not stopped or arrested in order to show the requisite discriminatory effect and purpose. See Chavez v. Ill. State Police, 251 F.3d 612, 634-48 (7th Cir.2001); Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir.2000).

Here, the Johnsons have offered no evidence that Crooks does not stop non-African Americans under similar circumstances. We will assume that a prima facie equal protection claim may also be proved by direct evidence of racial discrimination in this type of case. But the John-sons presented no such evidence. They rely on Ms. Johnson’s personal opinion that she was stopped on account of her race, plus additional aspects of the encounter that do not directly evidence racial animus — that Crooks was in a position to see Ms. Johnson’s race when he pulled out into traffic, that Crooks closely followed Ms. Johnson for eleven miles before pulling her over, and that Crooks called Fort Riley the next day to bring the traffic stop to the attention of either Ms. Johnson’s or Mr. Johnson’s commanding officer. As the non-moving parties, the Johnsons must “identify affirmative evidence from which a jury could find that the plaintiff has carried his or her burden of proving the pertinent motive.” Crawford-El v. Britton, 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). They failed to do so. As the Seventh Circuit stated in Ford, “We do not think ... that the combination of an arbitrary stop ... with a difference in race between the person stopped and the officer establishes a prima facie case of racial discrimination.” 90 F.3d at 248-19. The district court erred in not dismissing the equal protection claim.

IV. The Due Process Claims.

The amended complaint asserts two § 1983 due process causes of action without clearly stating whether they are substantive due process or procedural due process claims. To the extent a substantive due process claim is asserted, the claim by Ms. Johnson fails because it is “covered by” the Fourth Amendment, County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), and the claim by Mr. Johnson fails for lack of evidence that Crooks’s conduct was conscience-shocking in the constitutional sense of that term. See Moran v. Clarke, 296 F.3d 638, 647 (8th Cir.2002) (en banc). To the extent a procedural due process claim is asserted, the claim fails because the Johnsons have made no attempt to establish that state law would not have afforded them an adequate post-deprivation tort remedy. See Zinermon v. Burch, 494 U.S. 113, 130 & n. 15, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); Parrish v. Mallinger, 133 F.3d 612, 615-16 (8th Cir.1998). Indeed, their pendent state law claims tend to establish that adequate post-deprivation remedies are available. Therefore, the district court erred in not dismissing the due process claims.

For the foregoing reasons, the district court’s order dated March 4, 2002 is reversed. The case is remanded for further proceedings not inconsistent with this opinion. See Gregoire v. Class, 236 F.3d 413, 419-20 (8th Cir.2000).