Gregory A. Williams; Virgil Hugh Reaves v. Ronald E. Hansen, individually and in his official capacity as Police Chief

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 GREGORY A. WILLIAMS; VIRGIL HUGH
REAVES,
Plaintiffs-Appellees,
v.
RONALD E. HANSEN, individually and
in his official capacity as Police
Chief,
Defendant-Appellant,
and
THE CITY OF FAYETTEVILLE; ROGER
STANCIL, individually and in his
official capacity as City Manager;
JOHN SMITH, individually and in his No. 02-1573  then official capacity as City
Manager; RON ROBUN, individually
and in his official capacity as City
Manager; BRADLEY CHANDLER,
individually and in his official
capacity as a City Police Officer;
RICHARD BRYANT, individually and
in his official capacity as a City
Police Officer; KATHERINE GUILETTE,
individually and in her official
capacity as a City Police Officer;
STEVE MCINTOSH, individually and in
his official capacity as a City Police
Officer; THE FAYETTEVILLE CITY
COUNCIL; SHERRY SPARKS, 

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 individually and in her official
capacity as a City Police Officer,
Defendants.
THE NATIONAL ASSOCIATION OF
POLICE ORGANIZATIONS, INCORPORATED; NATIONAL
ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE,
Fayetteville, North Carolina Branch,
Amici Supporting Appellee. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-99-449-2-5BR, CA-99-450-5)
Argued: January 21, 2003
Decided: April 22, 2003
Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge,
and Morton I. GREENBERG, Senior Circuit Judge of the
United States Court of Appeals for the Third Circuit,
sitting by designation.
Reversed and remanded by published opinion. Senior Judge Green-
berg wrote the opinion, in which Senior Judge Hamilton joined. Judge
King wrote a dissenting opinion.
COUNSEL
ARGUED: Steven Craig Lawrence, ANDERSON, JOHNSON,
LAWRENCE, BUTLER & BOCK, L.L.P., Fayetteville, North Caro-
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lina, for Appellant. James Harvestus Locus, Jr., Fayetteville, North
Carolina, for Appellees. Joseph Michael McGuinness, THE
MCGUINNESS LAW FIRM, Elizabethtown, North Carolina, for
Amicus Curiae Police. ON BRIEF: William J. Johnson, NATIONAL
ASSOCIATION OF POLICE ORGANIZATIONS, INC., Washing-
ton, D.C., for Amicus Curiae Police. Dennis Courtland Hayes, Hanni-
bal G. Williams II Kemerer, Baltimore, Maryland, for Amicus Curiae
NAACP.
OPINION
GREENBERG, Senior Circuit Judge:
I. INTRODUCTION
This matter comes on before this court on defendant Ronald E.
Hansen’s appeal from an order entered in the district court on May
15, 2002, to the extent that the order denied Hansen’s motion for sum-
mary judgment on the basis of qualified immunity on claims against
him by plaintiffs Gregory A. Williams and Virgil Hugh Reaves under
42 U.S.C. § 1983. Plaintiffs predicated their section 1983 actions
insofar as implicated on this appeal on Hansen’s alleged violation of
the Equal Protection Clause of the Fourteenth Amendment.1 The dis-
trict court decided this case in a comprehensive opinion setting forth
the background of this case. Williams v. Fayetteville, 5:99-CV-449-
BR(2) (E.D.N.C. May 13, 2002).
We describe the facts less expansively as the issues before us are
narrower. Williams and Reaves are black men who served as police
officers employed by the Fayetteville, North Carolina, police depart-
ment during the time relevant to this appeal. It appears that there have
been racial problems within the Fayetteville police department for in
1974 Fayetteville settled a discrimination action brought against it by
agreeing to increase the opportunities of black officers for better train-
1Plaintiffs also made other section 1983 claims as well as claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
state law that are not before us on this appeal.
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ing and assignments and for promotions. The parties to that litigation
memorialized their settlement in a consent decree that still was in
effect at the time of the events leading directly to this action. The
decree, however, was terminated in 1997.
In February 1996, in response to renewed complaints of racial dis-
crimination against blacks in the police department, Hansen, then the
Fayetteville chief of police, directed two high ranking black police
officers, Major George Moyd and Captain Robert Shambley, to inter-
view all of Fayetteville’s black police officers to determine whether
any had experienced racial discrimination or whether they had infor-
mation regarding discrimination against blacks. At that time, how-
ever, Hansen did not direct that Moyd or Shambley or anyone else
question white officers as to whether they had information regarding
discrimination against blacks. Hansen further directed that Lt. Richard
Bryant, chief of the department’s Office of Professional Standards
("OPS"), was to interview any black officer who had perceived dis-
crimination so that the complaints could be investigated.
In accordance with Hansen’s direction, Moyd and Shambley inter-
viewed all 68 black police officers in the department, Shambley inter-
viewing Reaves and Moyd interviewing Williams. Both Reaves and
Williams reported that there had been discrimination within the
department and, in all, 17 officers did so. Williams and Reaves charge
that the subsequent investigation of the reports of discrimination was
nothing more than an effort to discredit the officers who had com-
plained of discrimination and an attempt to determine the membership
in a group of black officers called Officers for Equity that opposed
racial discrimination in the police department.2 Hansen, not surpris-
ingly, disagrees with these allegations but, as will be seen, this dispute
of fact does not preclude us from deciding the legal issues posed on
this appeal.
2We note that there is some discrepancy over nomenclature in this case
as the parties and the district court variously characterize the interviews
as inquiries or an investigation. Our outcome is not dependent on such
differences as we are concerned with what happened rather than the par-
ties’ characterization of the events.
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Even though this action involves other claims and defendants in
addition to Hansen, on this appeal we deal only with plaintiffs’ allega-
tions that Hansen violated their rights to equal protection of the laws
by causing Moyd and Shambley to interview only the 68 black offi-
cers and not the more numerous several hundred white officers. Han-
sen, in moving for summary judgment on the basis of qualified
immunity, contended in the district court and contends here that his
decision to require interviews of black officers with respect to racial
discrimination was lawful and, in any event, did not violate clearly
established constitutional rights of which a reasonable person would
have known. Thus, in his view, he is entitled to summary judgment
on the basis of qualified immunity on plaintiffs’ section 1983 equal
protection claims and the district court erred in denying him that
relief.
The district court rejected Hansen’s immunity defense for the fol-
lowing reasons. First, it cited and quoted Shaw v. Reno, 509 U.S. 630
(1993), to demonstrate the Supreme Court’s disapproval of racial
classifications, quoting the portion of the opinion holding that "state
legislation that expressly distinguishes among citizens because of
their race [must] be narrowly tailored to further a compelling govern-
mental interest." Id. at 643. The district court then indicated that this
principle has led courts "to conclude that intentional racial harassment
of a public employee by a supervisor constitutes race discrimination
in violation of the Equal Protection Clause of the Fourteenth Amend-
ment and is also actionable under [42 U.S.C] § 1983." Slip op. at 77.
The district court then stated that Hansen, when investigating racial
discrimination within the police department, "in electing to interview
only the black officers . . . effectuated a racial classification that
immediately and ultimately subjected plaintiffs to unequal treatment."
Id. The court indicated that it was not determinative that the case did
not involve a statutory classification for in Sylvia Development Co. v.
Calvert County, 48 F.3d 810, 818 (4th Cir. 1995) (emphasis in origi-
nal), we stated that the "Equal Protection Clause limits all state
action, prohibiting any state from denying a person equal protection
through the enactment, administration, or enforcement of its laws and
regulations." Id. The district court then said that inasmuch as "Han-
sen’s investigation was explicitly limited to black officers, a suspect
class, the court must apply strict scrutiny" in considering the investi-
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gation’s legality. Id. Thus, the district court stated that "Hansen must
show that the investigation was narrowly tailored to serve a compel-
ling state interest," citing Shaw v. Hunt, 517 U.S. 899, 908 (1996). Id.
at 77-78.
The district court held that even assuming that the stated purpose
for interviewing and investigating only the black officers, i.e., to
determine if there was racial discrimination in the department, was its
actual purpose and was compelling:
The court cannot conclude that the means chosen to effec-
tuate the stated purpose were narrowly tailored. It was
clearly overinclusive in that it subjected to investigation
black officers who did not feel that discrimination or retalia-
tion existed in the Department and underinclusive in that it
did not take into account the perceptions of white officers
regarding racial discrimination in the Department. There
were certainly other, more narrowly tailored, non race-based
methods that the Department could have employed to
accomplish its stated purpose.
Id. at 78. The court, however, did not indicate what these alternative
methods were.
Finally, after having concluded that Hansen’s conduct violated the
Equal Protection Clause, the court held that he was not entitled to
qualified immunity for the following reasons:
The court also concludes that plaintiffs’ right to equal
protection of the laws protecting them from being subjected
to coercive state conduct solely on the basis of their race
was clearly established in February 1996. See Washington
v. Davis, 426 U.S. 229, 239 (1976) ("The central purpose of
the Equal Protection Clause of the Fourteenth Amendment
is the prevention of official conduct discriminating on the
basis of race.") The court also concludes that a reasonable
person in Chief Hansen’s position would have known that
his conduct would violate that right. Accordingly, the court
concludes that defendant Ronald Hansen is not entitled to
qualified immunity and thus is not entitled to summary
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judgment on plaintiffs’ § 1983 claims that his conduct vio-
lated their right to the equal protection of the laws.
Id. at 78-79. Hansen then appealed.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331,
1343, and we have jurisdiction under 28 U.S.C. § 1291 through appli-
cation of the collateral order doctrine. See Mitchell v. Forsyth, 472
U.S. 511, 530 (1985). We exercise de novo review on this appeal. See
Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir. 2001); Sylvia Dev.
Co., 48 F.3d at 817.3
III. DISCUSSION
On this appeal Hansen contends that he is entitled to qualified
immunity on plaintiffs’ claims and thus the district court erred in
denying his motion for summary judgment.4 Initially in considering
this contention we determine whether plaintiffs have alleged facts set-
ting forth valid claims for a deprivation of a constitutional right. See
Saucier v. Katz, 533 U.S. 194, 201 (2001); County of Sacramento v.
Lewis, 523 U.S. 833, 841 n.5 (1998). Then, if plaintiffs’ equal protec-
tion claims survive this threshold review, we must determine whether
the right plaintiffs advance was clearly established at the time of its
alleged violation so that a reasonable person would have known of the
3Inasmuch as plaintiffs stated supplemental claims under state law the
district court also exercised jurisdiction under 28 U.S.C. § 1367.
4Hansen also asserts that plaintiffs’ complaints in a pleading sense did
not set forth claims for equal protection violations and that, in any event,
plaintiffs do not have standing to pursue these claims. We find these
arguments to be without merit, and reject them summarily without fur-
ther substantive discussion. We do point out, however, that we have
jurisdiction to consider these arguments as the pleading issue is within
our pendent appellate jurisdiction, see Akers v. Caperton, 998 F.2d 220,
223-24 (4th Cir. 1993), and we would be obliged to take notice if plain-
tiffs lacked standing as the absence of standing would be a jurisdictional
defect. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95
(1998).
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right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In this sec-
ond inquiry the appropriate consideration is whether a reasonable
officer could have believed that his conduct was lawful. See Wilson
v. Layne, 526 U.S. 603, 615 (1999); Rogers v. Pendleton, 249 F.3d
at 288. If so then the officer enjoys immunity.
The operative facts here are quite clear. Hansen directed that Moyd
and Shambley interview all of the black officers regarding their expe-
riences or perceptions of racial discrimination within the department
but did not direct that they or anyone else interview any white officers
for information they might have relevant to the inquiry. While plain-
tiffs question the bona fides of Hansen’s stated motives for pursuing
the inquiry, i.e., that he would not tolerate discrimination within the
department and desired to take any necessary corrective measures, the
interviews did reveal the position that the black officers articulated on
the racial discrimination issue.
The existence of a factual dispute regarding Hansen’s motives does
not preclude us from entertaining this appeal even though we cannot
resolve disputes of fact. What we can and will do is answer the
abstract question of law as to whether when there are allegations that
a discrete racial group has been subjected to discrimination, it is law-
ful to conduct interviews in the first instance only of members of that
group to ascertain their experiences and perceptions with respect to
the discrimination. See Behrens v. Pelletier, 516 U.S. 299, 312-13
(1996).
We also emphasize that it is important to recognize that we do not
deal with Hansen’s alleged misuse of the information he obtained
from the interviews any more than we resolve disputes regarding his
motives in directing that Moyd and Shambley interview the black
officers. Thus, while plaintiffs contend in their brief that "[t]aking the
evidence in the best light for [them] Hansen used the Shambley/Moyd
interviews and the subsequent Black-only investigations in order to
determine the membership of the ‘Officers for Equity,’" Appellees’
Br. at 53-54, we agree with the district court to the extent that it held
that plaintiffs’ "claim that Chief Hansen violated their equal protec-
tion rights by further targeting those African-American officers who
identified discriminatory practices within the Department . . . does not
state a cognizable equal protection claim." Slip op. at 76.
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Accordingly, even though plaintiffs in their brief complain that
there was retaliation against them, in deciding this appeal we are not
concerned with that contention. In this regard, we note that plaintiffs
have brought complaints based on retaliation in violation of Title VII
of the Civil Rights Act of 1964 against the City of Fayetteville and
the Fayetteville City Council by reason of the ultimate termination of
their employment and what they assert in their second amended com-
plaints was the "creation of a hostile working environment based
upon race and retaliation." App. at 319, 331. These charges still are
pending in the district court.
As we have indicated, the district court applied strict scrutiny in
considering the classification and found that the means to ascertain
whether there was discrimination was overinclusive because "it sub-
jected to investigation black officers who did not feel that discrimina-
tion or retaliation existed in the Department and underinclusive in that
it did not take into account the perceptions of white officers . . . ." Slip
op. at 78. That analysis was flawed and was internally inconsistent.
Clearly, until such time as the black officers were questioned Hansen
could not know which officers felt that there was a discrimination
problem. Thus, to the extent that the classification he made included
all the black officers it hardly could be overinclusive. Furthermore,
unless Hansen had every white officer interviewed he could not know
which ones, if any, shared that belief. But if he had had all the white
officers interviewed then the classification under the district court’s
analysis would have been overinclusive.5 In any event, we will not
hold that a public official attempting to ascertain whether there is dis-
crimination in his department may not initiate the process by seeking
the views of members of the group which allegedly is the target of
discrimination.
In reviewing Hansen’s actions we recognize "that all racial classifi-
cations, imposed by whatever federal, state, or local government
actor, must be analyzed by a reviewing court under strict scrutiny. In
other words, such classifications are constitutional only if they are
5We realize that there may be officers in other racial groups in Fayette-
ville, i.e., Hispanic and Asian, but we do not find it necessary to mention
them separately as the parties do not focus on them and their presence
has no bearing on our analysis.
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narrowly tailored measures that further compelling governmental
interests." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227
(1995).
Hansen nevertheless argues that this case does not implicate the
equal protection principles set forth in Adarand and, accordingly, his
decision to interview only black officers should not be reviewed on
a strict scrutiny basis "as the interviews were not race classifying
guidelines, procedures or laws, but rather the most focused initial step
taken by [him] to attempt to identify potential areas of perceived or
real discrimination in the Department." Appellant’s br. at 12-13. We
agree with this argument. After all, we indicated in Morrison v. Gar-
raghty, 239 F.3d 648, 654 (4th Cir. 2001), that "[t]o succeed on an
equal protection claim, a plaintiff must first demonstrate that he has
been treated differently from others with whom he is similarly situ-
ated and that the unequal treatment was the result of intentional or
purposeful discrimination. Once this showing is made, the court pro-
ceeds to determine whether the disparity in treatment can be justified
under the requisite level of scrutiny."
In this case the black and white officers were not similarly situated
with respect to the object of Hansen’s inquiry as the former but not
the latter were allegedly subject to discrimination. Thus, Hansen
could treat the groups differently in directing that officers be inter-
viewed without violating the Equal Protection Clause. Indeed, taking
into account the applicable principles that Morrison explained, it is
evident that plaintiffs have conceded away their position on this
appeal by stating in their brief that "[t]o prove a violation of the Equal
Protection Clause, the forecasted evidence demonstrated that [they]
were treated differently from similarly situated white officers."
Appellees’ br. at 43 (citing In re Long Term Admin. Segregation of
Inmates, 174 F.3d 464, 471 (4th Cir. 1999)). The fact is that the black
and white officers for the purposes of the matter into which Hansen
was inquiring, i.e., was there discrimination against black officers in
his department, were not similarly situated. Thus, plaintiffs do not set
forth valid claims for the deprivation of a constitutional right and their
case fails at the outset.
We hasten to add, however, that our opinion should not be over-
read. Certainly, for most purposes officers in a police department
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must be regarded as similarly situated regardless of their race. Thus,
in matters such as assignments, promotions, and salary levels a race-
based distinction among officers would be subject to strict scrutiny in
an equal protection analysis.6 But it would be illogical to hold that
officers in one racial group are similarly situated in an inquiry into
whether there is discrimination against members of their racial group
as compared to officers not within the group.
Even though plaintiffs’ case has failed at its outset, we point out
that Hansen made a completely reasonable classification that would
survive a strict scrutiny analysis if it were applicable. He had informa-
tion that some black officers believed that there was discrimination
and he directed that the potential victims of the discrimination be
interviewed to ascertain their knowledge of the situation. Surely, this
approach was narrowly tailored to address the problem at hand. While
the district court indicated that there "were certainly other, more nar-
rowly tailored, non race-based methods that the Department could
have employed to accomplish its stated purpose," slip op. at 78, it did
not specify those methods.
Significantly, in their brief plaintiffs make a suggestion as to what
they say "perhaps" would have been a more narrowly tailored
approach to the interviews:
One reasonable alternative to conducting the all Black
investigations as [Hansen] did would have been for him to
have compiled the same data that the City was then man-
dated to collect under the terms of the consent decree. The
collection of this data would have provided him with the sta-
tus regarding promotions, assignment and other pertinent
data as to all the officers employed with the City and per-
haps been a more narrowly tailored approach to the one
taken by Appellant-Defendant Hansen.
6In fact, there is an assertion in this case that the department discrimi-
nates against black officers in assignments in that they are relegated to
narcotics and patrol duties. We, of course, have no way of knowing
whether this assertion is accurate but if it is it should be understood that
we offer no opinion on the legality of the assignments and our opinion
cannot be understood as validating them.
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Appellees’ Br. at 48.
The problem with plaintiffs’ approach is obvious. While Hansen
undoubtedly could have made a statistical analysis of the race of offi-
cers promoted and of officers in particular assignments, that analysis
would not have addressed the claimed acts of discrimination predi-
cated on what plaintiffs charge was the hostile racial environment
within the department. For example, Reaves complains of having "ex-
perienced great criticism from his supervisors and white co-workers"
and having been suspended and reduced in rank. Appellees’ Br. at 19.
In his view, "the discipline and his treatment were discriminatory,
[though] he elected not to appeal the suspension." Id. Reaves also
complains that "white officers had told lies on him and discouraged
trainees from working with him which contributed to his suspension
in December 1995." Id. at 21. Moreover, "he felt that Black officers
were not viewed as intelligent by white officers nor were Black offi-
cers given opportunities to make decisions as white officers." Id. at
21. The statistical analysis that plaintiffs propose could not reveal that
an officer had perceptions of this kind.
Amicus curiae National Association of Police Organizations also
makes suggestions as to how Hansen could have obtained the infor-
mation he sought:
1) Conduct a traditional departmental survey of all officers
in written form, with or without follow up interviews;
and/or
2) Conduct structured interrogations of all officers; and/or
3) Conduct random interrogations of officers; and/or
4) Retain an independent law enforcement consultant
experienced in addressing issues of suspect class dis-
crimination.
Amicus Br. at 13-14.
Conceivably such methods would have uncovered information
regarding discrimination. But obviously there are problems with the
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Association’s suggestions. Written questions and answers may not be
an accurate substitute for face to face questioning as they do not
afford an opportunity for probing immediate follow-up questions.
"Structured interrogations of all officers" would have been a far larger
undertaking than simply questioning the potential victims of the dis-
crimination and, in expanding the initial inquiries beyond the class of
the alleged victims, would have imposed a larger administrative bur-
den on the department. Random interrogations might have missed
black officers subject to discrimination. Finally, employing an inde-
pendent consultant would have passed to the consultant the choice as
to how to proceed similar to that Hansen faced himself. We also point
out that some of the Association’s suggestions are less narrowly tai-
lored than that Hansen adopted. In any event, we see no reason why
the police department should not have been able to investigate its own
affairs and address its own problems, when, as here, it did so by mak-
ing narrowly focused inquiries. Courts should not micro-manage
police departments.
It is also important to recognize that Hansen did not preclude the
questioning of white officers in a discrimination investigation. At a
grievance hearing for Reaves, which is part of the record on this
appeal, when asked why he did not have Moyd and Shambley speak
to white officers, Hansen explained:
It’s the black officers were the ones that were talking about
discrimination and racism now. That was an inquiry; not
investigation. Once the inquiry is done, if the investigation
point — wherever it pointed, then the Office of Professional
Standards is charged with going after wherever it pointed.
App. at 94. Thus, Hansen regarded the interviews as merely making
an opening inquiry.
In determining whether the classification that Hansen drew could
have survived a strict scrutiny analysis, if applicable, it is useful to
consider the stopping of motorists on a racial basis. Everyone would
agree that police officers should not stop motorists merely on the
basis of their race. But if police officers are advised that a perpetrator
of a particular race is fleeing from the scene of a crime, surely it
would be reasonable if they stopped only motorists of that race at a
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road block in an effort to apprehend the criminal. Similarly, a police
department lawfully might make a racial classification when picking
officers to infiltrate a criminal enterprise depending on the racial
make-up of the members of the enterprise.
Hansen was confronted with allegations that blacks were subject to
discrimination and he reasonably caused the possible victims of the
discrimination to be interviewed to ascertain their views as to whether
the allegations were accurate. We are satisfied that a classification
distinguishing between possible victims and other officers for pur-
poses of the interviews could survive a strict scrutiny analysis as the
classification was narrowly tailored and the police department had a
compelling interest in knowing whether there was discrimination in
the department. Therefore, even if plaintiffs’ claims charged that offi-
cers who in fact were similarly situated were treated differently on the
basis of their race, and they do not because the black and white offi-
cers were not similarly situated, the alleged disparate treatment would
survive a strict scrutiny analysis. Thus, for this additional reason,
plaintiffs’ case does not survive the first prong of a Saucier/Lewis
analysis. Accordingly, we are obliged to reverse the district court’s
order denying Hansen summary judgment.
As we indicated above, if we had determined that the facts the
plaintiffs alleged set forth valid claims for a deprivation of a constitu-
tional right, which we do not, we would have been obliged to deter-
mine whether the right involved was clearly established at the time
involved so that a reasonable person would have known of the right.
But inasmuch as we have found that plaintiffs have not advanced
valid claims we could stop this opinion at this point. Yet we will
address the second aspect of a Saucier/Lewis analysis as our conclu-
sion on it supplies an alternative basis for our decision.
The short answer to this inquiry is obvious. Certainly if judges of
United States Courts of Appeals are of the view that plaintiffs are
advancing a "right" that did not exist when allegedly infringed (and
still does not exist) then the right could not have been clearly estab-
lished at the time infringed. Indeed, it would be remarkable to hold
that a reasonable person, here a chief of police, should have known
more constitutional law than United States Circuit Judges and that
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because he did not he should be subject to the imposition of monetary
damages.
That said, we nevertheless will consider cases dealing with race-
based classifications in determining if the right plaintiffs advance was
clearly established. We start quite naturally with Anderson v. Creigh-
ton, 483 U.S. 635 (1987), as the case instructs us on how to approach
the inquiry. In that case the Court indicated that a government official
performing a discretionary function, as was Hansen, was entitled to
qualified immunity in a civil rights action "as long as [his] actions
could reasonably have been thought consistent with the rights [he is]
alleged to have violated." Id. at 638. Thus, the Court indicated, quot-
ing Malley v. Briggs, 475 U.S. 335, 341 (1986), that "qualified immu-
nity protects ‘all but the plainly incompetent or those who knowingly
violate the law.’" The assessment of an officer’s actions turns on its
"‘objective legal reasonableness.’" Id. at 639 (quoting Harlow, 457
U.S. at 819).
Anderson then goes on to state the following:
The operation of this standard, however, depends substan-
tially upon the level of generality at which the relevant
"legal rule" is to be identified. For example, the right to due
process of law is quite clearly established by the Due Pro-
cess Clause, and thus there is a sense in which any action
that violates that Clause (no matter how unclear it may be
that the particular action is a violation) violates a clearly
established right.
Much the same could be said of any other constitutional
or statutory violation. But if the test of "clearly established
law" were to be applied at this level of generality, it would
bear no relationship to the "objective legal reasonableness"
that is the touchstone of Harlow. Plaintiffs would be able to
convert the rule of qualified immunity that our cases plainly
establish into a rule of virtually unqualified liability simply
by alleging violation of extremely abstract rights. Harlow
would be transformed from a guarantee of immunity into a
rule of pleading. Such an approach, in sum, would destroy
"the balance that our cases strike between the interests in
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vindication of citizens’ constitutional rights and in public
officials’ effective performance of their duties," by making
it impossible for officials "reasonably [to] anticipate when
their conduct may give rise to liability for damages.". . . It
should not be surprising, therefore, that our cases establish
that the right the official is alleged to have violated must
have been "clearly established" in a more particularized, and
hence more relevant, sense: The contours of the right must
be sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right. This is not to
say that an official action is protected by qualified immunity
unless the very action in question has previously been held
unlawful, . . . but it is to say that in the light of pre-existing
law the unlawfulness must be apparent.
Id. at 639-40 (omitting footnote and certain citations). See also Cro-
mer v. Brown, 88 F.3d 1315, 1325 (4th Cir. 1996). This cautionary
language in Anderson is particularly important in a case of this kind
in which plaintiffs challenge an administrative race-based classifica-
tion as such classifications in other contexts may be violative of the
Equal Protection Clause.
In fact, however, plaintiffs do not refer to any case that should have
led Hansen to conclude that a race-based classification in which in the
first instance only the potential victims of discrimination were ques-
tioned about their experiences and perceptions is unlawful. Signifi-
cantly, Hansen threw down the gauntlet to plaintiffs on this point
when he stated in his opening brief that he "has been unable to locate
any appellate cases similar to the trial court’s basis for denying him
qualified immunity . . . ." Appellant’s Br. at 23. He then quite reason-
ably argues that the absence of cases "is an indicator that his proactive
decision to interview black officers can certainly not be said to have
violated ‘clearly established law’ as of February 1996." Id.
In answering, plaintiffs do not supply particularized case law to
support their equal protection claims. Instead, they make the non-
germane argument that Hansen misused the interviews to ascertain
the membership in Officers for Equity and then remind us that in Pod-
bersky v. Kirwan, 38 F.3d 147, 152 (4th Cir. 1994), a case dealing
with a race-based scholarship program, we indicated that
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"[g]overnment institutions that choose to employ racial classifications
face ‘a presumption that [such a] choice cannot be sustained.’" Appel-
lees Br. at 55. We do not doubt that plaintiffs’ citation of Podbersky
is apt but that case merely indicated in a completely different context
that there is a presumption that a race-based classification cannot be
sustained. Here, however, that presumption never came into being as
the black and white officers were not similarly situated. Moreover, if
the presumption had been applicable then Hansen would have rebut-
ted it even if his conduct was examined on a strict scrutiny basis.
Plaintiffs are supported on this appeal by a brief filed by amicus
curiae National Association for the Advancement of Colored People
("NAACP") but it is of no help to plaintiffs as it, too, does not point
to any case germane to this case in a "particularized" sense. See
Anderson, 483 U.S. at 640. Rather, it tells us in a generalized way that
strict scrutiny is required and charges that Hansen made a classifica-
tion that was not narrowly tailored and was not reasonably related to
a compelling state interest.
The NAACP complains that Hansen "asserted no legitimate ratio-
nale for urging only senior black officers to investigate exclusively
African American police officers . . . regarding allegations of race dis-
crimination in the Department." Br. at 15 (emphasis in original). This
statement, however, simply is untrue. Hansen explained at Reaves’
grievance hearing that "I felt that I did not want to have [a] perception
during this inquiry that black officers would feel uncomfortable or
unwilling to tell about racial discrimination if, in fact, it did exist. So
that was my purpose of getting the two senior black officers." App.
at 94. Furthermore, neither Moyd nor Shambley is a plaintiff in this
action and the equal protection classification of which plaintiffs have
standing to complain relates to the persons questioned and not the
selection of the persons to ask the questions.
Similarly the Police Organization’s brief does not cite any case ger-
mane to this appeal in a particularized sense demonstrating that the
"right" plaintiffs advance was clearly established so that Hansen
should have been aware of it. Indeed, its brief makes clear that its
argument challenges conduct beyond the circumstance that only black
officers initially were questioned as its summary of its argument starts
as follows:
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The District Court correctly denied qualified immunity to
Defendant Hansen because of his intentional discriminatory
practices including but not limited to racially based interro-
gations and retaliatory tactics against African American
police officers in the Fayetteville Police Department. The
totality of Defendant Hansen’s conduct constitutes a form of
internal racial profiling, segregating black officers for dispa-
rate treatment by interrogations and further investigations if
they articulate perceptions of discrimination. This tragic
case involves a web of overt discrimination and retaliation.
Br. at 6. The brief later argues that because cases are not completely
alike, "the requirement of a clearly established right is not overly
stringent." Br. at 11 (citing Edwards v. City of Goldsboro, 178 F.3d
231, 250-51 (4th Cir. 1995)).
This amicus curiae brief misses the point. We are not concerned on
this appeal with the "totality" of Hansen’s conduct. Rather, we reiter-
ate, at the risk that a reader of this opinion may think that we are
unduly repetitious, that we are dealing with an alleged equal protec-
tion violation predicated on the circumstance that Hansen caused only
black officers to be initially interviewed with respect to possible dis-
crimination.
In applying Anderson we recognize that cases need not be identical
for a public officer to be charged that on the basis of precedent he
should have recognized that his conduct violated a right that was
clearly established. See, e.g., Hope v. Pelzer, 536 U.S. 730, ___, 122
S. Ct. 2508, 2516 (2002) (cases with materially similar facts can pro-
vide especially strong support for a conclusion that the law was
clearly established); Finn v. New Mexico, 249 F.3d 1241, 1250 (10th
Cir. 2001); Ulichny v. Merton Comty. Sch. Dist., 249 F.3d 686, 706
(7th Cir. 2001). But still it would be a remarkable extension of equal
protection principles to hold that the very act of questioning the mem-
bers of a racial group as to whether they perceived discrimination
against the members of that group was in itself unlawful. We are not
aware of any case from the Supreme Court or this court that comes
close to making such a holding and, in fact, the plaintiffs and the
amici curiae do not supply us with any from other jurisdictions.
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In the circumstances, we cannot reasonably hold that Hansen
objectively should have known that his conduct was unlawful when
he directed Moyd and Shambley to question only black officers about
discrimination against blacks. A reasonable person in Hansen’s posi-
tion was entitled to obtain his legal guidance from law books rather
than a crystal ball. Thus, the equal protection right that plaintiffs
advance was not clearly established when Hansen directed that the
black officers be interviewed and he is entitled to summary judgment
on this ground, which is in addition to those we already explicated,
granting him qualified immunity from plaintiffs’ equal protection
claims.
IV. CONCLUSION
For the foregoing reasons we reverse the order of May 15, 2002,
to the extent that it denied Hansen’s motion for summary judgment
on the basis of qualified immunity on plaintiffs’ equal protection
claims. We remand the matter to the district court to enter summary
judgment in favor of Hansen and for further proceedings on the
remaining issues in this case.
REVERSED AND REMANDED
KING, Circuit Judge, dissenting:
The majority today concludes that, consistent with the precepts of
equal protection, a chief of police who has received complaints of
racial discrimination within his department may select all and only the
alleged victims of the discrimination — the department’s African-
American officers — as targets of an investigation into the com-
plaints. Even if the selection of the African-American officers under
these circumstances did not constitute an express racial classification,
Chief Hansen nonetheless should not be awarded qualified immunity:
Williams and Reaves have alleged specific facts indicating that Han-
sen’s facially neutral classification was both injurious and motivated
by discriminatory animus. Under clearly established principles of
equal protection, these allegations, if proven, set forth valid claims for
the deprivation of a constitutional right. Thus, in my judgment, the
district court correctly held that Hansen had not carried his burden of
establishing his entitlement to qualified immunity, and it properly
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denied his motion for summary judgment. With all respect to my dis-
tinguished colleagues in the majority, I dissent.
I.
In concluding that Hansen is entitled to summary judgment on the
basis of qualified immunity, the panel majority engages in a tradi-
tional Adarand analysis, assessing whether Hansen employed an
expressly discriminatory classification. Its opinion reasons that "the
black and white officers for the purposes of that matter into which
Hansen was inquiring, i.e., was there discrimination against black
officers in his department, were not similarly situated." Supra at 10.
As a result, "Hanson could treat the groups differently in directing
that officers be interviewed without violating the Equal Protection
Clause," and Williams and Reaves "do not set forth valid claims for
the deprivation of a constitutional right." Supra at 10. According to
the majority, there was no express racial classification because Han-
sen selected not all and only the African-Americans, but rather all and
only the alleged victims of intradepartmental discrimination. That
those alleged victims were all African American officers did not, on
this reasoning, render the classification expressly discriminatory.
The majority opinion goes on to note that "even if plaintiffs’ claims
charged that officers who in fact were similarly situated were treated
differently on the basis of their race, . . . the alleged disparate treat-
ment would survive a strict scrutiny analysis." Supra at 14. Finally,
it holds in the alternative that "the equal protection right that plaintiffs
advance was not clearly established when Hansen directed that the
black officers be interviewed [since] it would be a remarkable exten-
sion of equal protection principles to hold that the very act of ques-
tioning the members of a racial group as to whether they perceived
discrimination against the members of that group was in itself unlaw-
ful." Supra at 18-19.
The majority’s analysis, while perhaps correct on its own terms,
leaves unexplored an important aspect of the officers’ allegations
against Hansen. As its opinion acknowledges, the "plaintiffs question
the bona fides of Hansen’s stated motive for pursuing the inquiry, i.e.,
that he would not tolerate discrimination within the department and
desired to take any necessary corrective measures." However, the
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panel majority dismisses the issue of intent out of hand, stating that
"[t]he existence of a factual dispute regarding Hansen’s motives does
not preclude us from entertaining this appeal even though we cannot
resolve disputes of fact." Supra at 8.
In my assessment, the dispute of fact as to Hansen’s motives in
selecting all and only the African-American officers in his department
as targets of his investigation cannot so easily be brushed aside. The
plaintiffs may fairly be understood to allege that, even if Hansen
employed a facially neutral policy in responding to complaints of dis-
crimination by interviewing all and only those who were within the
class of purported victims, that policy both was motivated by discrim-
inatory animus toward African-Americans and adversely effected this
group. Thus, even if the majority is correct to conclude that Hansen’s
selection of interviewees was facially neutral, it remains to be deter-
mined whether he is entitled to the protection of qualified immunity.
II.
As the majority opinion acknowledges, supra at 7, Williams and
Reaves were entitled to prevail against Hansen’s motion for summary
judgment only if: (1) they had alleged facts setting forth valid claims
for the deprivation of a constitutional right, Saucier v. Katz, 533 U.S.
194, 201 (2001); and (2) the right was clearly established at the time
of the alleged violation such that a reasonable person would have
known of it, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Taking the facts, as we must, in the light most favorable to the par-
ties asserting the injury, Williams and Reaves have alleged the viola-
tion of a clearly established constitutional right. Twenty-six years
ago, the Supreme Court made clear that a facially neutral administra-
tive action that disparately impacts members of a particular racial
group will violate the Equal Protection Clause if the plaintiff demon-
strates that the action was motivated, at least in part, by an "invidi-
ously discriminatory" intent. Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977) (remanding equal
protection challenge to local authorities’ refusal to rezone land to per-
mit racially integrated low-income housing for inquiry into discrimi-
natory intent). The protection against invidious discrimination that
hides behind facially neutral policies has become only more firmly
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entrenched. See, e.g., Shaw v. Reno, 509 U.S. 630, 644 (1993);
Hunter v. Underwood, 471 U.S. 222, 233 (1985); Rogers v. Lodge,
458 U.S. 613, 618 (1982); Smith v. Town of Clarkton, 682 F.2d 1055,
1066 (4th Cir. 1982); see also Sylvia Dev. Corp. v. Calvert County,
48 F.3d 810, 819 (4th Cir. 1995). Because the plaintiffs have made
out valid claims for the denial of a clearly established constitutional
right, the district court correctly denied Hansen’s motion for summary
judgment on the basis of qualified immunity.
A.
The Fourteenth Amendment to the Constitution declares that "[n]o
State shall . . . deny to any person within its jurisdiction the equal pro-
tection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protec-
tion Clause "is essentially a direction that all persons similarly
situated should be treated alike." City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985). To state a race-based claim under the
Equal Protection Clause, a plaintiff must allege that a government
actor intentionally discriminated against him on the basis of his race.
See id. at 439-40; Washington v. Davis, 426 U.S. 229, 242 (1976); In
re Long Term Admin. Segregation of Inmates Designated as Five Per-
centers, 174 F.3d 464, 471 (4th Cir. 1999); Sylvia Dev. Corp., 48 F.3d
810 at 818-19.
There are several ways for a plaintiff to make out a valid claim of
unconstitutional discrimination. A plaintiff can point to a law or pol-
icy that expressly classifies persons on the basis of race. See Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 213, 227-29 (1995)). Or, a
plaintiff can identify a facially neutral law or policy that has been
applied in an intentionally discriminatory manner. See Yick Wo v.
Hopkins, 118 U.S. 356, 373-74 (1886). A plaintiff can also allege that
a facially neutral statute or policy that is neutrally applied nonetheless
has an adverse effect on a protected group, and that the adoption of
the statute or policy was motivated by discriminatory animus. See
Arlington Heights, 429 U.S. at 264-65; see also Hunter, 471 U.S. at
233 (holding that Alabama constitutional provision, which mandated
disenfranchisement of those convicted of crimes of moral turpitude,
violated equal protection, because provision was "motivated by a
desire to discriminate against blacks on account of race").
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Regardless of which of these three forms of intentional discrimina-
tion is alleged, the Equal Protection Clause "does not require a plain-
tiff to prove that the challenged action rested solely on racially
discriminatory purposes." Arlington Heights, 429 U.S. at 265 (empha-
sis added). Rather, a plaintiff need only establish that racial animus
was one of several factors that, taken together, moved the decision-
maker to act as he did. See Farm Labor Org. Comm. v. Ohio State
Highway Patrol, 308 F.3d 523, 539 (6th Cir. 2002) (holding that state
trooper’s possession of some race-neutral basis for initiating investi-
gation was insufficient, standing alone, to entitle trooper to qualified
immunity from liability on plaintiff’s equal protection claims if plain-
tiff could demonstrate that trooper was partly motivated by discrimi-
natory purpose).
Though a valid claim for a violation of equal protection need not
allege discrimination as the defendant’s sole motive, it must allege the
requisite discriminatory intent with more than mere conclusory asser-
tions. Thus, to state valid claims for violation of equal protection and
thereby to survive Hansen’s motion for summary judgment on the
basis of qualified immunity, Williams and Reaves must put forward
"specific, non-conclusory factual allegations that establish improper
motive." Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (quoting
Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (discussing plain-
tiff’s pleading burden in face of defendant’s qualified-immunity-
based summary judgment motion, in First Amendment retaliatory ter-
mination context)).
Even after a plaintiff has come forward with the requisite specific,
non-conclusory factual allegations of an invidious discriminatory
intent, determining whether official action was motivated by inten-
tional discrimination remains "a sensitive inquiry." Arlington Heights,
429 U.S. at 266. In delving in the minds of state officials, a court may
look to "such circumstantial and direct evidence of intent as may be
available." Arlington Heights, 429 U.S. at 266. "[A]n invidious dis-
criminatory purpose may often be inferred from the totality of the rel-
evant facts, including the fact, if it is true, that the [practice] bears
more heavily on one race than another." Washington, 426 U.S. at 242.
The Supreme Court has since provided further guidance regarding
this "totality of the relevant facts" inquiry. First, and importantly, the
Court has recognized that the direct impact of the challenged official
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action is frequently probative of why the action was taken, since peo-
ple "usually intend the natural consequences of their actions." Reno
v. Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997) (citing Arlington
Heights, 429 U.S. at 266). Other relevant considerations include: (1)
the historical background of the decision, which may take into
account any history of discrimination by the decisionmaking body or
the jurisdiction it represents; (2) the specific sequence of events lead-
ing up to the particular decision being challenged, including any sig-
nificant departures from normal procedures; and (3) contemporary
statements by the decisionmaker. Arlington Heights, 429 U.S. at 266-
68; see also Sylvia Dev. Corp., 48 F.3d at 819 (applying Arlington
Heights to analyze intent in equal protection context); Talbert v. City
of Richmond, 648 F.2d 925, 929 (4th Cir. 1981) (same).
B.
To prevail on the merits of their equal protection claim, Williams
and Reaves need only prove at trial that Hansen’s selection of the tar-
gets of his investigation was motivated in part by discriminatory intent.1
And at this qualified immunity stage of the suit, it is necessary only
that they allege facts from which a jury could conclude that a part of
Hansen’s motivation in selecting the targets of his investigation was
discriminatory animus. Because they have made specific, non-
conclusory factual allegations, which, when viewed together and
taken as true, raise a reasonable inference that the investigations were
1It should be noted that, if initiated for an illegal purpose, the investi-
gation itself is actionable; the plaintiffs need prove no further adverse
employment action. See Hetzel v. County of Prince Williams, 89 F.3d
169, 171 (4th Cir. 1996) (noting that internal affairs investigation itself
constitutes "adverse employment action," depriving employee of a "valu-
able government benefit" under Huang v. Bd. of Governors, 902 F.2d
1134, 1140 (4th Cir. 1990), and treating such investigation as actionable
under § 1983); see also Allen v. Iranon, 283 F.3d 1070, 1076 (9th Cir.
2002) (discussing internal affairs investigations as among "adverse
employment actions" that could ground § 1983 liability); Rakovich v.
Wade, 819 F.2d 1393, 1397 (7th Cir. 1987) (holding that investigation
undertaken in retaliation for exercise of constitutionally protected rights
is actionable under § 1983), vacated on issue of damages on reh’g, 850
F.2d 1180 (7th Cir. 1988).
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prompted at least in part by an illegal motive, Williams and Reaves
are entitled to a trial on the merits of their equal protection claim.
The "important starting point" for assessing discriminatory intent
under Arlington Heights is whether the challenged official action
"bears more heavily on one race than another." Arlington Heights,
429 U.S. at 266 (citing Washington, 426 U.S. at 242). Hansen’s pur-
ported policy of selecting for interviews only the alleged victims of
intradepartmental discrimination bore not just more heavily on one
race than another. By leading him to investigate all and only the
African-American officers, Hansen’s policy bore exclusively on one
race. Thus, under the first Arlington Heights criterion, Hansen’s deci-
sion to adopt the policy that he did strongly evinces a discriminatory
intent.
Additional factors that bear on our inquiry include "[t]he historical
background of the decision," "[t]he specific sequence of events lead-
ing up [to] the challenged decision," and "contemporary statements by
[decisionmakers]." Id. at 267-68. Under these factors, the plaintiffs
have alleged specific facts that would support a finding that Hansen
acted with discriminatory intent when he chose to direct his investiga-
tion at the victims of possible intradepartmental discrimination.
Viewed in the light most favorable to the plaintiffs, both the histor-
ical and the immediate backgrounds of Hansen’s investigation bolster
their allegations of discriminatory intent. As an historical matter, in
February 1996, when the challenged investigation occurred, the City
of Fayetteville was under a longstanding consent order to eliminate
racial discrimination within its workforce. In the weeks and months
preceding Hansen’s decision to conduct his investigation, a number
of African-American police officers had become increasingly con-
cerned that the Police Department was taking deliberate steps to
impede the progress of African-American officers. To address these
concerns, the officers had formed a group called "Officers for Equal-
ity." In forming this group, the officers intended to oppose acts of dis-
crimination regarding assignments, promotions, and training. The
members of the group believed that the Department had deliberately
failed to comply with the terms of the consent order, and they had
contacted counsel to learn what legal action could be taken to force
the City into compliance. Among the group’s concerns was their
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belief that Hansen had pressured African-American officers, over
their objections and with threat of termination, to prepare false written
statements attesting to the Department’s efforts to comply with the
consent order, and asserting that the order was no longer necessary.
In addition to these facts, which suggest both historical and imme-
diate racial discrimination within the Police Department, the plaintiffs
note several events contemporaneous with the investigation that is the
subject of dispute. From these events, a jury could fairly infer that
Hansen holds a general hostility toward the African-American offi-
cers and their concerns. Hansen learned of the group "Officers for
Equality" over the weekend prior to his decision to initiate the chal-
lenged, African-Americans-only investigation. According to the
plaintiffs, the questioning that occurred during the interviews was
designed to uncover the identities of the members of the group. Fur-
thermore, after requiring all of the African-American officers to par-
ticipate in interviews regarding their perceptions of discrimination
within the Department, Hansen ordered disciplinary action against
those among them who were unable to furnish proof to substantiate
the very perceptions that they had been required to disclose. Then, in
a follow-up memo on the Moyd/Shambley interviews, Hansen
instructed his senior staff not only to look for evidence to support the
concerns expressed by some of the African-American officers during
the interviews, but also to look for ways to "discredit" the officers’
concerns.
As the district court observed, while the purpose of the Hansen’s
investigation was "ostensibly to discern the existence or prevalence of
discriminatory or racist practices or conduct in the Department," "[i]t
seems clear from defendants’ statement . . . that the Department was
not intent on investigating the perceptions of discrimination but rather
intent on investigating what the defendants involved considered
‘lies.’" Williams v. Fayetteville, Mem. Op., 5:99-CV-449-BR(2), at 22
n. 15 (E.D.N.C. May 13, 2002). The "tortuous machinations
employed to transform descriptions of perceived discriminatory or
retaliatory conduct into ‘lies,’" id., lend further credence to the plain-
tiffs’ contention that Hansen ordered the African-Americans-only
interviews with discriminatory intent.
These facts, taken together and in the light most favorable to the
plaintiffs, are more than adequate to support an inference that Han-
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sen’s facially neutral policy of directing his investigation at the pur-
ported victims of racial discrimination within the Department was
motivated by invidious discriminatory animus. Having made the req-
uisite specific, nonconclusory factual allegations in support of their
equal protection claim, the question of motive becomes one for the
jury. See Farm Labor Org. Comm., 308 F.3d at 539 (upholding denial
of qualified immunity premised on district court’s determination that
plaintiffs had advanced sufficient evidence to support finding of dis-
criminatory intent and holding that, once this initial burden of produc-
tion is satisfied, "[t]he question of whether [an official’s] allegedly
discriminatory motive played a determinative role in the decision to
investigate the plaintiffs . . . is a factual dispute best suited for resolu-
tion at trial"); cf. Koch v. Rugg, 221 F.3d 1283, 1297-98 (11th Cir.
2000) (holding that court of appeals lacked jurisdiction over interloc-
utory appeal from denial of qualified immunity where defendants
based their appeal solely on alleged lack of evidence to show racially
discriminatory intent); Stella v. Kelley, 63 F.3d 71, 75 (1st Cir. 1995)
(upholding denial of qualified immunity on the ground that court of
appeals "lack[s] the power to inquire into . . . the fact-based question
of what the evidence does (or does not) show concerning whether the
[officials’] actions violated the asserted right — a question that
depends, in this case, on the [officials’] motives"). Williams and
Reaves have alleged specific facts from which it could be inferred
that when Hansen selected all and only the African-Americans offi-
cers for his investigation, he was motivated at least in part by discrim-
inatory animus.
C.
When Hansen instituted this investigation almost a quarter of a
century after the Supreme Court rendered its decision in Arlington
Heights, it was eminently well established that a facially neutral
administrative action that is undertaken with an intent to discriminate
against a particular racial group is forbidden by the Constitution.
Accordingly, the district court did not err in denying Hansen qualified
immunity from the plaintiffs’ equal protection claims.
The "clearly established" prong of the qualified immunity inquiry
requires that "the contours of the right . . . be sufficiently clear that
a reasonable official would understand that what he is doing violates
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that right." Anderson v. Creighton, 483 U.S. 635, 639 (1987). "In
determining whether a right was clearly established at the time of the
claimed violation, ‘courts in this circuit [ordinarily] need not look
beyond the decisions of the Supreme Court, this court of appeals, and
the highest court of the state in which the case arose.’" Edwards v.
City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999) (quoting Jean
v. Collins, 155 F.3d 701, 709 (4th Cir. 1998) (en banc)) (alteration in
original).
It is not essential that there exist a decided case that is on all fours
with the facts at hand in order for public officials to be on fair notice
that their conduct violates the Constitution. See Wilson v. Layne, 526
U.S. 603, 615 (1999) (holding that precise conduct need not have
been previously held unlawful in order for qualified immunity to be
forfeited); Edwards, 178 F.3d at 251 ("[T]he nonexistence of a case
holding the defendant’s identical conduct to be unlawful does not pre-
vent denial of qualified immunity."); see also Amaechi v. West, 237
F.3d 356, 362-63 (4th Cir. 2001) (denying qualified immunity despite
absence of factually similar precedent); McMillian v. Johnson, 88
F.3d 1554, 1565 (11th Cir. 1996) (same). After all, "qualified immu-
nity was never intended to relieve government officials from the
responsibility of applying familiar legal principles to new situations."
Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (Michael, J., con-
curring).
Under the Supreme Court’s decision in Arlington Heights, Hansen
had fair notice that a facially neutral yet discriminatorily motivated
administrative action violates equal protection. Indeed, given the
unbroken and wide-ranging line of equal protection decisions reaf-
firming and applying the Arlington Heights principle, it is difficult to
imagine how the message might have been made clearer. See, e.g.,
Shaw, 509 U.S. at 644 (applying Arlington Heights to analyze equal
protection challenge to alleged racially discriminatory gerrymander of
voting districts); Hunter, 471 U.S. at 233 ("[Alabama’s disenfran-
chisement of persons convicted of crimes involving moral turpitude]
was motivated by a desire to discriminate against African-Americans
on account of race and . . . continues to this day to have that effect.
As such, it violates equal protection under Arlington Heights."); Rog-
ers v. Lodge, 458 U.S. 613, 618 (1982) (applying Arlington Heights
to evaluate equal protection challenge to alleged racially discrimina-
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tory vote dilution); Smith v. Town of Clarkton, 682 F.2d 1055, 1066
(4th Cir. 1982) (applying Arlington Heights to analyze equal protec-
tion challenge to town officials’ withdrawal of town from multi-
municipality low-income housing authority, holding district court’s
finding of racially discriminatory intent not clearly erroneous, and
affirming district court’s conclusion that town officials violated equal
protection); see also Sylvia Dev. Corp., 48 F.3d at 819-24 (applying
Arlington Heights to analyze national-origin equal protection chal-
lenge to county officials’ refusal to grant requested rezoning). Under
these precedents, a reasonable person in Hansen’s position could
make no mistake that to adopt with discriminatory animus a facially
neutral policy that subjected all and only the African-Americans in his
Department to investigation, would be to violate the equal protection
rights of the targeted officers.2
D.
As the Supreme Court has observed, the central purpose of the
Equal Protection Clause "is to prevent the States from purposefully
discriminating between individuals on the basis of race." Shaw, 509
U.S. at 642 (citing Washington, 426 U.S. at 239). Williams and
Reaves have made out a claim for precisely this sort of purposeful,
race-based discrimination, and they have supported that claim with
specific factual allegations. Thus, because Hansen failed to meet his
burden of proving that the plaintiffs asserted no valid claims for the
violation of clearly established constitutional rights, Gomez v. Toledo,
446 U.S. 635, 640 (1980), I must part company with my distinguished
colleagues in the majority.
I respectfully dissent.
2Though the "clearly established" inquiry is an objective one, it is
worth noting that Hansen himself has written and published on the topic
of equal protection. See Carl Milazzo & Ronald Hansen, Racial Rela-
tions in Police Operations: A Legal and Ethical Perspective (Published
manuscript from the 1999 Conference Materials, International Associa-
tion of Chiefs of Police) (http://aele.org/losrace99.html).
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