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Sheriff Terry Johnson of Alamance County, N.C., at a discussion hosted by The Center for Immigration Studies and the House Immigration Reform Caucus in Washington, D.C., in Oct. 2011.

A Rural Sheriff Stares Down the Justice Department

In North Carolina case on racial profiling, U.S. suffers its first loss.

Update 04:52 p.m. 10.06.2015

The Justice Department filed an appeal on Tuesday.

Original Story

The Justice Department often stages elaborate news events to announce that it has decided to pressure a police department to improve the way it patrols and investigates communities of color. Former Attorney General Eric Holder went to Cleveland in December, stood in front of a cluster of news cameras, and discussed plans for a forthcoming court-ordered agreement with the Cleveland Police Department. His successor Loretta Lynch, barely one week into her job this spring, went to Baltimore and met with police officials and the family of a black man who had died in the back of a police van. Days later, she announced that the Justice Department had begun an investigation into the city’s police force.

But the Justice Department has said little so far about the first major loss in its drive to compel police agencies to change their ways. Its opponent was not a big city police department, but the sheriff of rural Alamance County, North Carolina.

For years, Latino residents and civil rights advocates had complained that the sheriff, Terry S. Johnson, had instructed his staff of 123 officers to target Latino drivers in traffic stops. In 2009, the Justice Department stepped in. But instead of cooperating, as most police leaders tend to do, Johnson flatly denied the accusations and chose to fight a federal lawsuit that charged him with racial profiling. (The sheriff’s office itself was not a named party in the suit.)

In August, U.S. District Judge Thomas D. Schroeder — a conservative Republican appointed by President George W. Bush — sided with the 65-year-old Johnson and dismissed the case in a 249-page ruling, asserting that the government lacked compelling evidence. A Justice Department spokeswoman, Dena W. Iverson, said the agency was “disappointed” by the court’s decision. The department has until today to decide whether to appeal. (Schroeder attracted the ire of civil rights advocates after his 2014 ruling in favor of tougher voter registration standards in North Carolina).

“They simply didn’t prove their case,” said the Alamance County Attorney, Clyde Albright.

In his ruling, Schroeder questioned the methods used by two government experts on racial profiling. In one study, analysts spent 135 hours watching drivers on three county roads, and found that Latino drivers were rarely seen violating state traffic law. But the judge called the test “seriously flawed” because, he said, the researchers did not stop motorists to determine their ethnicity, instead guessing on drivers’ racial makeup based on appearance.

Another analysis, conducted by a University of Pennsylvania criminologist, John MacDonald, who had analyzed traffic-stop data from the sheriff’s office, found that Latino drivers were more likely to be given a citation or get arrested during a traffic stop compared to non-Latinos.

But Schroeder wrote that MacDonald’s findings did not support the Justice Department’s assertions of widespread discrimination orchestrated by the sheriff, because MacDonald failed to take into account the reasons why a citation was given or why an arrest was made.

Schroeder’s ruling goes beyond a critique of the government’s research. The judge took direct issue with a 21-year-old federal statute that allows the U.S. attorney general to use the threat of lawsuits to pressure local law enforcement agencies to improve their performance.

Adopted by Congress in 1994, the law gave the Justice Department the power to sue police agencies that engage in a “pattern or practice” of unconstitutional policing. The Justice Department has since conducted 67 formal investigations of police departments and sheriffs offices. About half of the agencies have agreed to Justice Department requests to change their policies and procedures in order to tame aggressive cops. The remaining cases either await resolution or were dropped by federal investigators. A department spokeswoman confirmed Monday that the Alamance case is the first of its kind the department has lost.

Schroeder, in his ruling, asserted that, “The statute does not define what constitutes a ‘pattern or practice’ of constitutional rights deprivations.’’

Federal officials had accused Alamance County deputies of using racist language, such as “wetback and “spic.” The sheriff, meanwhile, was said to have referred to Mexicans as “taco eaters.” Still, Schroeder wrote, the allegations were “insufficient” proof of establishing “a pattern or practice” of bias in the sheriff’s office: an agency in a majority-white county, in which 12 percent of its 155,000 residents are Latino.

Robert Driscoll, a former official in the Justice Department’s civil rights division who served in the administration of George W. Bush, said Schroeder’s ruling on the statute did not surprise him. “I don’t think it’s unusual that [Sheriff Johnson] won. Discriminatory policing is hard to prove,”

He added, “Most of these cases are resolved because everyone agrees to everything. People are reluctant to be viewed as the entity that is fighting the civil rights division.”

In Cleveland, for example, it was the mayor who invited the Justice Department to review the city’s police practices after dozens of city cops were involved in a high-speed car chase that ended as officers fired 137 rounds at the vehicle, killing the unarmed driver and the passenger. Johnson, though, has been unapologetic about engaging Washington in a lengthy litigation process, which cost Alamance County hundreds of thousands of dollars.

“My people in this department had not done any profiling or anything else wrong,” said Johnson, fighting back tears, after the lawsuit’s dismissal. “I would have never bowed to the Department of Justice.”

A veteran civil rights lawyer, Prof. David Rudovsky of the University of Pennsylvania law school, who literally wrote the textbook on police misconduct litigation, said it was too soon to tell whether the judge’s ruling on the discrimination statute would influence future litigation. The Justice Department’s data analysis, he felt, was the main flaw in the case.

“It was a case that relied heavily on statistical analysis,” Rudovsky said. “If the government is relying heavily on statistical evidence, they have to make sure that they have all the relevant data.”

Justice Department lawyers will have another chance to prove its “pattern or practice” allegations in a courtroom in the coming months. Officials from border towns Hilldale, Ariz., and Colorado City, Utah — home to the insular religious sect Fundamentalist Church of Jesus Christ of Latter Day Saints — are expected to begin their discrimination trial in January. The Justice Department accused the towns of allowing their joint police department, whose officers are members of the sect, to deny policing services to residents who were not sect members. Officers the the department—the Colorado City Marshal’s Office—also were said to have pressured non-observant FLDS members into following the religion’s edicts.

The Hildale City Attorney, Blake Hamilton, said that local officials had expressed interest in negotiating with the Justice Department, but their recent written request to discuss possible reforms with Washington had been ignored.

“My clients do not want to give in to the DOJ’s lawsuit and let them take control of the city away from the citizens just because the DOJ doesn’t like the predominant religion there,” Hamilton said. “The DOJ will instead have to prove its claims of discrimination.”