In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-3691 and 00-1462

Peso Chavez and Gregory Lee,
individually and on behalf of all
persons similarly situated,

Plaintiffs-Appellants,

v.

The Illinois State Police, Terrance
W. Gainer, individually and in his official
capacity as Director of the Illinois State
Police, Michael Snyders, individually
and in his official capacity as Illinois State
Police Operation Valkyrie Coordinator,
Edward Kresl, individually and in his
official capacity as District Commander of
the Illinois State Police, and Larry Thomas,
Daniel Gillette, Craig Graham, Robert
P. Cessna, Robert Lauterbach, and Dale
Fraher, officers of the Illinois State Police,
in their individual capacities,

Defendants-Appellees.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 5307--Blanche M. Manning, Judge.


Argued September 13, 2000--Decided May 23, 2001


  Before Flaum, Chief Judge, and Bauer and
Kanne, Circuit Judges.

  Kanne, Circuit Judge. In this civil
rights lawsuit, a putative class action,
plaintiffs claim that the drug
interdiction unit of the Illinois State
Police (ISP), Operation Valkyrie, has a
practice of stopping, detaining, and
searching African-American and Hispanic
motorists based on their race and without
legally sufficient cause or
justification. The allegation before us,
at its core, is that the ISP engages in
the practice of racial profiling. Racial
profiling is generally understood to mean
the improper use of race as a basis for
taking law enforcement action. Challenges
to the practice of racial profiling have
become increasingly prevalent; indeed,
this suit is part of a larger effort to
challenge the practice nationwide.
Defendants-appellees deny that they
engage in racial profiling, and claim
that they instruct their officers not to
use race in determining which motorists
to stop, detain, and search.

  Plaintiffs filed suit in August 1994, in
the United States District Court for the
Northern District of Illinois. Defendants
included the Director of the Illinois
State Police, Terrance Gainer; the ISP
Operation Valkyrie Coordinator, Michael
Snyders; the District Commander of the
ISP, Edward Kresl; and several individual
ISP troopers. Plaintiffs alleged numerous
violations of their rights and sought
damages as well as declaratory and
injunctive relief. They based their
claims upon the Equal Protection Clause
of the Fourteenth Amendment; the right to
travel provided by the Privileges and
Immunities Clauses of Article IV and the
Fourteenth Amendment; the Fourth
Amendment; Title VI of the Civil Rights
Act of 1964 and the administrative
regulations effectuating that Title; and
a variety of related supplemental state
law provisions. They also sought to
impose supervisory liability for these
violations upon several ISP personnel
under 42 U.S.C. sec. 1983.

  Through a series of rulings spanning the
five years of litigation below, the
district court dismissed the right to
travel claim and granted defendants’
motions for summary judgment on the equal
protection and supervisory liability
claims. Additionally, the court
determined that plaintiffs lacked
standing to obtain injunctive relief,
declined to certify a class of Hispanic
motorists stopped on the basis of race,
denied plaintiffs’ motion to add a new
named plaintiff to represent the Hispanic
class, and denied one of plaintiffs’
discovery related motions. In response to
these rulings, plaintiffs moved to
voluntarily dismiss, with prejudice,
their remaining claims. The court
dismissed the Title VI regulatory claims
pursuant to Rule 16 of the Federal Rules
of Civil Procedure, but stated that, if
plaintiffs elected to dismiss their
remaining claims, the court would impose
reasonable costs. Plaintiffs continued to
request dismissal, thus the court issued
an order dismissing plaintiffs’ Fourth
Amendment, Title VI, and supplemental
state law claims, with prejudice and
pursuant to Rule 41 of the Federal Rules
of Civil Procedure.

  Plaintiffs now appeal the grant of
summary judgment on their equal
protection and supervisory liability
claims, the dismissal of named plaintiff
Peso Chavez’s right to travel claim, the
finding that they lacked standing to
pursue injunctive relief, and the
district court’s denial of their motions
to add a new plaintiff, to certify a
class, and to take certain discovery.
Plaintiffs also challenge the propriety
of requiring them to pay defendants’
costs as a precondition to dismissal.

  Before we review the procedural and
substantive legal challenges raised in
this appeal, we will describe the
Operation Valkyrie program; detail the
facts surrounding the stops, detentions,
and searches of each of the named
plaintiffs; introduce the statistics
plaintiffs have presented in their effort
to show that defendants engage in racial
profiling; and summarize the relevant
procedural history.

I.   History

A.   Operation Valkyrie

  The Illinois State Police run a drug
interdiction program entitled "Operation
Valkyrie." The program is "designed to
acquaint patrol officers with techniques
which will enhance their capability to
detect and apprehend drug couriers . . .
while focusing on the enforcement of
highway safety regulations." Operation
Valkyrie: An Officer’s Guide to Drug
Interdiction Techniques i. Since its
inception in 1990, the ISP has assigned
more than one hundred officers to
Valkyrie teams that operate in eleven of
the ISP’s twenty-one districts. Non-
Valkyrie officers also receive Valkyrie
training in order to familiarize them
with drug-interdiction techniques. Master
Sergeant Michael Snyders, the former
statewide Operation Valkyrie Coordinator,
testified that Valkyrie officers only
stop vehicles for traffic enforcement
reasons (i.e. for traffic violations or
other threats to traffic safety). Once a
vehicle is stopped, he explained,
Valkyrie officers look for indicators of
drug trafficking. These indicators are
numerous--indeed there is a list of
twenty-eight factors in the Operation
Valkyrie training manual--and include
such things as too little or too much
luggage for the stated length of trip,
maps from drug source cities or states,
and air freshener. Officers are also
trained to look for verbal and non-verbal
signs of stress and deception, such as
nervousness and an overly friendly
demeanor. Snyders testified that when
Valkyrie officers observe these
indicators, they are trained to request
consent to search the vehicle. In 1992,
Valkyrie officers requested permission to
search in approximately fourteen percent
of motorist stops, and when requested,
over ninety-eight percent of motorists
granted consent.

  Plaintiffs allege that race plays into
the Valkyrie officers’ decision to stop a
motorist--what we will term "pre-stop
profiling"--and into the decision to
detain or search a motorist, and that no
ISP policy prohibits troopers from using
race as a factor in making these
determinations. As evidence of this,
plaintiffs assert that certain ISP drug
interdiction training materials
emphasize, through statistics, images,
and examples, the alleged predominance of
Hispanics among those highway travelers
carrying illegal drugs. They also point
to the testimony of Trooper Robert
Cessna, who testified that a motorist’s
race is one "indicator" that "you’ve got
to keep in mind."

  Plaintiffs further assert that Operation
Valkyrie grants troopers substantial
discretion to decide which motorists to
stop and search. ISP training materials
acknowledge that discretion can
deteriorate into abusive practices,
including racial discrimination.
Plaintiffs argue that ISP procedures for
addressing citizen complaints and
reviewing trooper enforcement activity do
not sufficiently curb an officer’s
ability to impermissibly take race into
account. When a complaint is filed, a
case number is typically assigned, a case
is opened, and the complaint is
processed. If, however, ISP personnel
determine that a complaint is not
sufficient for further investigation or
that another entity is already
investigating the violation, no case is
opened. The ISP will not "open a case"
when a citizen complains that he was
stopped on the basis of race and issued a
traffic citation for an offense he did
not commit because the ISP views this
issue as one to be resolved by the
courts. See Dep. of Teresa Kettelkamp at
86-87 (former deputy director of the
Division of Internal Investigation).
Apparently, the ISP assumes that the
motorist will go to traffic court and
allege racial prejudice as a defense to
the ticket. In addition, the ISP Office
of Inspection and Audits does not
investigate the issue of race in trooper
enforcement activity.

  The ISP presented evidence that Valkyrie
officers are taught not to use race in
determining what motorists to stop,
detain, and search. The training manual
for Operation Valkyrie states that the
"[ISP] has never endorsed, condoned or
promoted the use of any profiling system
in its interdiction program." See
Operation Valkyrie: An Officer’s Guide to
Drug Interdiction Techniques i. Training
sessions also included presentment of a
videotape which emphasizes that drug
couriers look "pretty much like everyone
else," that it is difficult to
characterize smugglers on the basis of
nationality, and that ISP officers must
have a lawful reason to stop or search
motorists.

  During the early years of the Valkyrie
program, some ISP districts attempted to
monitor trooper discretion by collecting
data on the race of motorists searched by
Valkyrie troopers. One reason for
collecting such data, according to
Snyders, was to respond to potential
questions about whether officers were
targeting motorists because of their
race. This data was also used as a
supervisory tool to ensure that team
members were not concentrating on certain
ethnic groups. Between 1990 and 1994,
monthly statistics in District Six, one
of the ISP districts to collect such
data, demonstrated that African-Americans
and Hispanics comprised over sixty
percent of the motorists searched.

B.   The Stops and Searches

1. The Stop and Search Involving Peso
Chavez

  Peso Chavez’s claim evolved out of the
stop, search, and arrest of a white/1
motorist, George Koutsakis. In November
1992, an Illinois state trooper, and
Valkyrie officer, stopped Koutsakis for
exceeding the sixty-five mile per hour
speed limit. Koutsakis was driving a red
or burgundy rental car bearing California
license plates, and had open maps, a
mobile phone, and fast food wrappers in
his vehicle. While the trooper was in the
process of issuing a warning ticket, a
second Valkyrie officer arrived (Trooper
Graham) and walked his drug-detecting
canine around the vehicle. The dog
alerted, indicating the presence of
drugs, and the subsequent search of
Koutsakis’s vehicle uncovered over two
hundred pounds of marijuana in the trunk.
Koutsakis’s criminal defense attorney,
Nancy Hollander, suspected that state
troopers were stopping motorists based on
skin tone or travel patterns, and decided
to explore whether the stop of Koutsakis
might have been pretextual. As part of
her criminal defense strategy, she thus
hired Chavez, a private investigator and
New Mexico resident, to recreate the
circumstances leading to Koutsakis’s stop
and arrest.

  Chavez, who is Hispanic, emulated the
circumstances surrounding Koutsakis’s
stop and arrest, to see if he would be
stopped by the Illinois State Police. He
rented a red car with California license
plates. On February 18, 1993, he placed
open maps, fast food wrappers, a cellular
phone, and a gym bag in the car, and
proceeded to Interstate 80 ("I-80").
Katherine Austin, a white female from the
Public Defenders’ Office, followed
closely behind him in a separate car.
Chavez and Austin traveled to the western
edge of Bureau County, Illinois, and
began driving east on I-80. When Chavez’s
vehicle passed State Trooper Larry
Thomas, parked on the east-bound shoulder
of I-80 at mile post fifty-three, Trooper
Thomas decided to follow it. Thomas
followed Chavez’s vehicle for
approximately twenty-four miles, or
almost one-half hour, though he could not
explain why he decided to do so. Chavez
was not speeding; he traveled no faster
than sixty miles per hour, although the
speed limit was sixty-five. At one point,
Thomas drove alongside Chavez’s vehicle
and looked him in the face. Thomas
learned that the car was a rental car
after he had a license plate check run
through the dispatcher

  Thomas stopped Chavez at about mile post
seventy-seven, allegedly because Chavez
failed to signal a lane change. Chavez
testified that he did signal and denied
committing any traffic violation. Austin,
who had been following Chavez, agreed.
Defendants conceded for the purposes of
summary judgment that Chavez did not
violate any traffic laws. Thomas
approached the car and noticed several
items inside, including Chavez’s small
suitcase, several fast food bags, and an
atlas. He also saw Chavez’s hands shaking
and thought Chavez was nervous. Thomas
requested Chavez’s driver’s license and
registration, and returned to his squad
car.

  Thomas was subsequently joined by
Sergeant Dan Gillette, who had been
monitoring traffic at mile post seventy-
seven. Gillette claims that Thomas told
him there was something funny about
Chavez, that he smelled air freshener in
the car and that he did not see any
luggage. Gillette suggested that Thomas
run a criminal history check and a check
through the El Paso Intelligence Center
(EPIC), a database that contains
information about border crossings.
Gillette then went over to Chavez’s
vehicle and asked Chavez where he was
going. Chavez replied he was going to
Chicago for the day; this was not
entirely true because Chavez had not yet
decided whether he would go or not. To
Gillette, Chavez appeared nervous and
deceptive regarding his destination.
Gillette also testified that he saw a
road atlas and fast food wrappers in the
car, and thought the car was too clean to
have come from Albuquerque. Gillette
returned to Thomas’s vehicle and Thomas
informed him that Chavez’s license and
registration were valid and that Chavez
had no criminal history. Gillette told
Thomas that he was still suspicious due
to the numerous indicators of drug
trafficking.

  Thomas issued Chavez a warning ticket
based on the alleged failure to signal,
and returned Chavez’s license and
registration once he signed the citation.
Thomas then asked Chavez for permission
to search his car. Chavez did not consent
to the search and stated that he wanted
to leave. Based on the indicators,
Gillette felt there was sufficient reason
to detain Chavez for a canine walk
around, and thus the officers detained
Chavez to await the arrival of a canine
unit.

  When Trooper Graham arrived with his
police dog, Krott, Thomas asked Chavez if
he would consent to a canine walk-around.
Gillette testified that Chavez did not
consent, though Thomas’s report said he
did. The dog did not alert on the first
walk-around. Chavez admits that he became
nervous during the encounter. Because it
was a rental car, he had no knowledge of
whether it had previously been used to
transport drugs. He also feared that, if
the search was unsuccessful, the troopers
would become frustrated and plant
evidence.

  The troopers conducted a second walk-
around. Graham testified that this time
the canine alerted, but Chavez did not
see the alert. In response, Gillette
asked Chavez to go sit in Officer
Thomas’s vehicle. Gillette, Graham, and
Trooper Robert Cessna (who went to the
scene when radio traffic indicated that
Chavez was suspicious) then proceeded to
search Chavez’s car. The officers
examined the car’s interior, trunk, and
wheel wells, and the contents of Chavez’s
luggage. The EPIC report then came back
and indicated that Chavez’s rental car
had made several border crossings during
the previous year. The car was searched
again, this time using flashlights, and
this search included an examination of
the engine. Again, the officers did not
find any contraband. Finally, thirty-five
to fifty-five minutes after he was
stopped, Thomas told Chavez he was free
to go. Thomas completed a field report
regarding the search of Chavez’s vehicle
and listed Chavez’s race as "white,"
despite the fact that the report
contained a listing for Hispanic.

  Although Chavez resides in New Mexico,
plaintiffs allege that his business has a
prominent Illinois nexus and Chavez is
confident that he will travel to Illinois
in the future. Nonetheless, Chavez was
not stopped by the ISP on subsequent
travel dates of February 25 and 27, 1993,
and has not returned to Illinois since
February 1993.

2.   The Stops and Searches Involving
Gregory Lee

  Gregory Lee, who is African-American,
testified that he was unjustifiably
stopped, searched, and detained three
times in 1993. In late summer or early
fall of 1993, Lee was driving west on I-
80 with his wife, who is also African-
American, when an ISP officer stopped
them. Lee says that he had not violated
any traffic law. The officer requested
consent to search the vehicle, and Lee
gave his consent. The officer instructed
Lee and his wife to step out of the car.
He patted down Lee and indicated that he
would pat down Mrs. Lee but then turned
and searched the trunk instead. The
officer found no contraband, and no
ticket or warning was issued.

  In March 1993, Lee was driving on I-80
near Orland Park, Illinois, with his
friend, Mike, who is also African-
American. ISP Trooper Robert Lauterbach
stopped Lee and told him he was speeding,
which Lee alleges is false. Trooper
Lauterbach asked for Lee’s license and
then asked him to step out of the car.
Once Lee stepped out, the officer brought
him back to the rear of the car and at
the same time asked Mike to step out of
the car. Lee asked the trooper what the
problem was and the trooper said
something about them looking suspicious.
The officer patted them down; at some
point, an unidentified second officer
arrived. Lauterbach ordered Lee and his
friend to kneel on the roadside, behind
Lee’s vehicle, with their hands on their
heads. While they were kneeling,
Lauterbach searched the car without Lee’s
consent--he searched the front and back
seat and the glove box--but found no
contraband. The officer then returned
Lee’s license and keys and allowed Lee
and his friend to go. No warning or
ticket was issued.

  In August 1993, Lee was driving on I-80,
at the intersection of I-57, when he was
stopped by ISP Trooper Dale Fraher. Lee
got out of the car and asked the officer
if there was a problem. Fraher claimed
that Lee’s car wheel was wobbling and
that there was a problem with the license
plate registration sticker, though
plaintiff denies that there was anything
wrong with either. After asking for and
receiving Lee’s drivers’ license, Fraher
asked if he could search Lee’s car, twice
stating that one can never tell with "you
people." Lee consented; Fraher searched
the car but found no contraband. Fraher
then returned Lee’s license and allowed
Lee to go without issuing a ticket or
warning.

  Lee alleges that he travels on Illinois
highways at least sixty times per year
and that he intends to continue doing so.
He contacted ACLU attorneys after seeing
an article in the Chicago Defender
discussing the lawsuit filed by Peso
Chavez. The article included the ACLU’s
phone number, indicating that they would
be "willing to listen to anyone else
subjected to questionable state police
auto searches." Stephen Thomas, ACLU
Pulls Over State Police, Chicago Defender,
Aug. 31, 1994. Lee contacted the ALCU be
cause he felt that he was someone who had
a similar experience and later became a
party to the current lawsuit.

C.   The Statistics

  An ISP stop can generate several types
of records. First, when an ISP officer
makes a stop he must radio headquarters
to convey selected information, including
the state and license plate number of the
vehicle stopped. Second, if the ISP
officer issues a citation or a warning to
one or more of the vehicle occupants,
this fact is recorded in the "citations
and warnings database." This electronic
database includes the name of the
individual receiving the citation or
warning as well as the basis for the
action (such as speeding or an illegal
lane change). Finally, in a limited
number of circumstances an officer will
complete a "field report." Field reports
are typically completed when contraband
is found, when a custodial arrest is
made, when canines are involved, or when
there is damage to police equipment or
injury to a trooper, though even in these
circumstances they are not always
completed. When ISP officers use Valkyrie
skills or obtain information of interest
to the Valkyrie program they are
encouraged to fill out a field report and
to mark it with a "V"--these are referred
to as the "Valkyrie field reports."

  At plaintiffs’ request, the defendants
provided the citations and warnings and
the field reports databases to Temple
University’s Center for Public Policy.
The Center analyzed this data and James
Ginger and Martin Shapiro, plaintiffs’
experts, examined the Center’s
results./2 Plaintiffs’ experts compared
the percentage of whites, African-
Americans, and Hispanics in the ISP
databases with the percent that each race
is present in the Illinois population,
based on data from the 1990 Census, and
present on Illinois roads, as estimated
by the Nationwide Personal Transportation
Survey (NPTS). In Shapiro’s opinion, the
field reports indicated a systemic over-
representation of African-Americans and
individuals of Hispanic origin in
Valkyrie police activity. Ginger
concluded that officers engaging in drug
interdiction efforts selected a
significantly higher percentage of
Hispanic drivers for discretionary
enforcement efforts--defined as
activities which give the officer large
amounts of latitude in determining what,
if any, action to take--than did other
ISP officers./3

D.   Procedural History

  More than five years of litigation
preceded this appeal. Peso Chavez filed
this suit as a "civil rights class
action" in the U.S. District Court for
the Northern District of Illinois on
August 30, 1994. After a search for
additional plaintiffs, Gregory Lee was
one of several people granted leave to
join the suit. On November 7, 1995,
plaintiffs moved to certify a class of
all persons who in the past had been, and
in the future would be, unlawfully
stopped, detained, or searched by the ISP
in accordance with their practice of
improperly stopping motorists on the
basis of race. On May 23, 1996,
plaintiffs filed a third amended
complaint, adding an additional plaintiff
and fourteen defendants. Plaintiffs
subsequently filed a fourth amended
complaint in September 1996, dropping
seven of the newly named defendants. The
original deadline for the completion of
fact discovery was December 29, 1995; at
plaintiffs’ request, this deadline was
moved to March 31, 1996, then to May 24,
1996, and eventually to August 30, 1997.
Expert discovery closed on November 13,
1998.

  On February 9, 1996, the district court
dismissed plaintiffs’ right to travel
claims under Rule 12 (b)(6) of the
Federal Rules of Civil Procedure. On
November 5, 1998, the district court
granted the defendants’ motion for
summary judgment on the equal protection
and certain of the supervisory claims and
granted qualified immunity to several ISP
officers on the Fourth Amendment claims.
The court also declined to certify a
class of all motorists unlawfully stopped
due to their race, because the class
certification motion appeared to be
premised on the defunct equal protection
claim. The court stated that plaintiffs
would be allowed to renew their motion if
they elected to pursue certification
based on the claims that survived summary
judgment. On April 2, 1999, plaintiffs
thus sought to certify "a class
consisting of all persons of Hispanic
race or color" who had been or would be
stopped, detained, or searched by the ISP
in violation of Title VI. The same day,
twenty months after the close of fact
discovery, plaintiffs also sought leave
to add Christopher Jimenez as an
additional named plaintiff. The court
found that the named plaintiffs did not
have standing to pursue injunctive relief
under Title VI, and thus declined to
certify a class of Hispanic motorists
with respect to the Title VI claims. The
district court also denied plaintiffs’
motion to amend their complaint to add
Jimenez as a named plaintiff.

  In February 1997, the plaintiffs served
the Illinois Secretary of State with a
subpoena for electronic data on licensed
Illinois drivers. The Secretary
determined that the plaintiffs were
required to pay the statutory rate for
provision of such information, and
calculated the charge at $160,200.
Plaintiffs objected that the charge was
excessive, and they argued that they
should only be required to pay the cost
incurred by the Secretary in providing
the information. The court found that the
statutory fee of two cents per record was
reasonable and overruled plaintiffs’
objections.

  In August 1999, in response to the
court’s orders granting summary judgment
on a number of the plaintiffs’ claims and
finding that the plaintiffs lacked
standing to pursue their Title VI claims
for equitable relief, the plaintiffs
moved to voluntarily dismiss with
prejudice their remaining claims. They
requested leave to amend their complaint
pursuant to Rule 15(a) of the Federal
Rules of Civil Procedure in order to
eliminate the Fourth Amendment claims,
supplemental state law claims, and Title
VI statutory claims. They also moved to
dismiss their Title VI regulatory claims
pursuant to Rule 16(c)(1). Plaintiffs
stated that they did not want to go to
trial on these individual damages claims,
because such a trial could not provide
their desired remedy: injunctive relief
against the alleged racial profiling. The
court denied plaintiffs’ request for
leave to amend under Rule 15(a),
dismissed the Title VI regulatory claims
pursuant to Rule 16, and advised
plaintiffs that, if they elected to
dismiss claims pursuant to Rule 41(a)(2),
the court would impose reasonable costs.
Plaintiffs opposed the imposition of
costs, but the district court ruled that
"an award of reasonable costs will be a
condition precedent to entry of an order
permitting the plaintiffs to voluntarily
dismiss their remaining claims." Chavez
v. Ill. State Police, No. 94 CV 5307,
1999 WL 754681, *6 (N.D. Ill. Sept. 9,
1999). On September 16, 1999, the court
granted plaintiffs’ motion to voluntarily
dismiss the remaining claims with
prejudice, pursuant to Rule 41(a)(2).
Plaintiffs filed a notice of appeal.

  In October 1999, defendants moved for
immediate payment of all costs. The court
granted the motion and taxed costs at
$22,800.72. The court reiterated that
payment of costs was a condition
precedent to its dismissal order, and
that the costs award would need to be
paid regardless of the result on appeal.
Following that decision, the plaintiffs
moved to alter or amend the judgment
pursuant to Rule 59. Plaintiffs also
moved for a stay of payment pending
appeal. On January 13, 2000, the district
court denied plaintiffs’ motion to alter
or amend the judgment, but granted the
stay of payment. On February 18, 2000,
plaintiffs filed their second notice of
appeal, regarding the manner in which
costs may be taxed as a condition on vol
untarily dismissal with prejudice.

II.   Analysis

  Plaintiffs allege that defendants are
liable under 42 U.S.C. sec. 1983, which
"requires proof that the defendants were
acting under color of state law and that
the defendants’ conduct violated the
plaintiff’s rights, privileges, or
immunities secured by the Constitution or
laws of the United States." Lanigan v.
Vill. of E. Hazel Crest, Ill., 110 F.3d
467, 471 (7th Cir. 1997) (citations
omitted). There is no dispute that the
defendant officers were acting under
color of state law, thus we must examine
whether defendants’ actions violated
plaintiffs’ constitutional or statutory
rights.

  We begin by reviewing the district
court’s procedural rulings: first, the
district court’s refusal to certify a
class with respect to the plaintiffs’
equal protection claims; second, the
district court’s denial of plaintiffs’
motion to amend their complaint to add a
new plaintiff; and third, the district
court’s ruling on a discovery matter. We
then review plaintiffs’ substantive
claims, the first alleging violations of
the equal protection clause of the
Fourteenth Amendment, and the second
alleging violations of the right to
travel. Next considered is the grant of
summary judgment to defendant Michael
Snyders on the issue of supervisory
liability, followed by an analysis of the
plaintiffs’ challenges to the resolution
of their Title VI claims. Finally, we
address the plaintiffs’ challenge to the
district court’s order making the payment
of costs a condition of voluntary
dismissal.

A.   Jurisdiction

  This court has jurisdiction to hear
appeals from "final decisions" of the
federal district courts. 28 U.S.C. sec.
1291. An order becomes final or
appealable upon the entry of a final
judgment. See ITOFCA, Inc. v. MegaTrans
Logistics, Inc., 235 F.3d 360, 363-64
(7th Cir. 2000). "The proper appeal of a
final judgment renews all issues
previously pleaded and resolved by the
trial court in litigation." Grun v.
Pneumo Abex Corp., 163 F.3d 411, 419 (7th
Cir. 1998) (citing In re Grabill Corp.,
983 F.2d 773, 775 (7th Cir. 1993)), cert.
denied, 526 U.S. 1087, 119 S. Ct. 1496,
143 L. Ed. 2d 651 (1999). Defendants
argue that the plaintiffs improperly
manufactured appellate jurisdiction by
asking the district court to voluntarily
dismiss their claims, and thus argue that
we have no jurisdiction to hear the
instant appeal. We disagree. While we may
not review claims that were dismissed
pursuant to plaintiffs’ request for
voluntary dismissal with prejudice, we
will review the district court’s rulings
with respect to the remainder of
plaintiffs’ claims. See Gray v. Dane
County, 854 F.2d 179, 182 (7th Cir.
1988).

B.   The Procedural Claims

1.   Standard of Review

  Plaintiffs challenge a number of
procedural rulings made by the district
court over the course of this litigation.
We will overturn these rulings only if we
determine that the court abused its
discretion. "’Abuse of discretion’ means
something more than our belief that we
would have acted differently if placed in
the circumstance confronting the district
judge." Anderson v. United Parcel Serv.,
915 F.2d 313, 315 (7th Cir. 1990). "The
district court’s decision must strike us
as fundamentally wrong for an abuse of
discretion to occur." Id. However, we
must still "scrutinize the district
court’s determination to ensure that it
invoked the correct legal standards and
that its findings of fact are not clearly
erroneous." Salgado by Salgado v. General
Motors Corp., 150 F.3d 735, 739 (7th Cir.
1998).

2.   Denial of Class Certification

  Plaintiffs originally filed this suit as
a "civil rights class action" on August
30, 1994. On November 7, 1995, they filed
a motion for the certification of a class
of persons who in the past had been, and
in the future would be, unlawfully
stopped, detained, and searched pursuant
to defendants’ practice of stopping,
detaining, and searching individuals
traveling on highways in Illinois on the
basis of race and without legally
sufficient cause or justification. When
the magistrate judge considered this
motion he found that, in light of the
court’s previous rulings in favor of the
defendants’ motion for summary judgment
on the plaintiffs’ equal protection
claims, the motion for class
certification was moot. See Chavez v.
Ill. State Police, No. 94 CV 5307 (N.D.
Ill. Sept. 25, 1997). He thus recommended
the denial of the motion for
certification of plaintiffs’ class
without prejudice, with leave to
reinstate the motion with respect to any
claims that survived summary judgment.

  The district judge agreed and found that
"it would be wholly illogical to consider
the motion," considering that the class
certification claim appeared to be
premised on an equal protection claim
that was no longer viable. Judge Manning
stated that "[a] decision that the named
plaintiffs’ claims lack merit may
disqualify them as proper class
representatives, thereby mooting the
class certification question." Chavez, 27
F. Supp. 2d at 1084 (citing Cowen v. Bank
United of Tx, 70 F.3d 937, 941 (7th Cir.
1995)).

  The court stated that plaintiffs would
be allowed to renew their motion if they
elected to pursue certification based on
the claims that survived summary
judgment. Thus, in early 1999, plaintiffs
sought certification of "a class
consisting of all persons of Hispanic
race or color" who had been or would be
stopped in violation of Title VI. Both
the magistrate judge and the district
court judge found that Chavez did not
have standing to pursue prospective
relief. The district court judge
determined that Chavez could not,
therefore, represent a class of Hispanic
motorists seeking such relief and
dismissed plaintiffs’ motion. While
plaintiffs assert that this was error,
the plaintiffs requested and were granted
a voluntary dismissal of their Title VI
claims. We will thus not review the
district court’s refusal to certify a
class with respect to those claims.

  Plaintiffs argued before the district
court, and continue to assert on appeal,
that they were entitled to a ruling on
the motion for class certification before
the district court considered the
defendant’s motion for partial summary
judgment on the plaintiffs’ equal
protection claims. The district court
disagreed. The court noted that a ruling
on summary judgment may properly precede
a ruling on a motion for class
certification. Id. at 1085. Though
recognizing that "an accelerated merits
disposition may be preferable when the
court considers the merits before ruling
on a motion for class certification," the
court stated that the delay was "largely
attributable to the plaintiffs." Id.

  We conduct a deferential review of the
denial of plaintiffs’ motion to certify a
class. Under the Federal Rules of Civil
Procedure, "a district court has broad
discretion to determine whether
certification of a class-action lawsuit
is appropriate." Mira v. Nuclear
Measurements Corp., 107 F.3d 466, 474
(7th Cir. 1997) (citing Ret. Chi. Police
Ass’n v. City of Chi., 7 F.3d 584, 596
(7th Cir. 1993)). In most circumstances,
a judge should determine whether to grant
or deny certification prior to ruling on
the merits, as indicated by the text of
Rule 23: "As soon as practicable after
the commencement of an action brought as
a class action, the court shall determine
by order whether it is to be so
maintained." Fed. R. Civ. P. 23(c). This is
the preferred policy as "the propriety of
class certification does not depend on
the outcome of the suit. . . . It is
therefore difficult to imagine cases in
which it is appropriate to defer class
certification until after decision on the
merits." Bieneman v. City of Chi., 838
F.2d 962, 964 (7th Cir. 1988) (citations
omitted). We have since noted, however,
that such situations do exist. If "as
soon as practicable" occurs after a case
is already "ripe for summary judgment"
then it might be proper for a judge to
consider a motion for summary judgment
prior to considering a motion for class
certification. Cowen, 70 F.3d at 941
(citations omitted). Where this situation
occurs, if the court determines that the
named plaintiffs’ claims lack merit, such
a decision "ordinarily, though not
invariably, . . . disqualifies the named
plaintiffs as proper class
representatives," thus resolving the
issue of class certification. Cowen, 70
F.3d at 941 (citations omitted).

  As noted by the district court,
plaintiffs requested and were granted
numerous stays with respect to the
summary judgment motions before the
court. In response to plaintiffs’
frustration with the delayed
consideration of their class
certification motion, the district court
simply noted that the plaintiffs’ actions
caused the delay. Yet this response
obscures the fact that it was the
district court’s decision to consider the
summary judgment motions before the class
certification motion that led to the
delayed consideration of the latter.
Indeed, this is why it is preferable to
review a motion for class certification
first; a quick disposition on the merits
is often not possible. Nonetheless,
"[w]hile we agree that it is the better
policy for the district court to dispose
of a motion for class certification
promptly and before ruling on the merits
of the case, the failure to follow this
preferred procedure does not necessarily
amount to reversible error." Mira, 107
F.3d at 475. We must thus examine whether
the delay in ruling was such that it rose
to reversible error.

  The denial of class certification was
premised on the district court’s finding
that the named plaintiffs lacked standing
to seek injunctive relief, a finding
partially linked to the fact that Chavez
had not returned to Illinois and had not
been stopped since the original stop in
1993. Plaintiffs allege that, if the
district court had ruled on class
certification as soon as practicable, the
mootness of Chavez’s claim would not have
prevented the class members from proceed
ing. Yet, even if this were true, the
class would not have prevailed on the
merits. The plaintiffs’ litigation
strategy was to present statistics as the
basis for their claims, and as we explain
in Parts II.D.1.c and II.D.2 below, these
statistics are not sufficient to prove a
violation of the equal protection clause
of the Fourteenth Amendment. This
determination would have been made
regardless of whether this lawsuit was
certified as a class action or not.
"[A]lthough the procedural method chosen
by the district judge is not the one
favored under Rule 23, we refuse to
disturb [her] denial of class
certification because [ ] the plaintiffs’
underlying claims clearly lack merit, as
evidenced by our affirmance of the
district court’s summary judgment rulings
. . . ." Myra, 107 F.3d at 475. We thus
find that the district court did not
abuse its discretion in denying the
plaintiffs’ motion for class
certification with respect to the equal
protection claims.
3. Denial of Motion to Add Christopher
Jimenez as a Class Representative

  Plaintiffs also challenge the district
court’s denial of their motion to add
Christopher Jimenez as a class
representative. On February 6, 1996,
Christopher Jimenez, who is Hispanic, and
his fiance, Stacie Tiffany, who is white,
were driving northbound on I-55 in
Sangamon County, Illinois, in Tiffany’s
car. Tiffany was driving and admits that
she was exceeding the speed limit.
Jimenez alleges that ISP Trooper Robert
Jennings, a Valkyrie officer, was parked
at the side of the road looking at them
with binoculars. Trooper Jennings admits
that he has been able to detect the race
of an occupant of a vehicle by using his
binoculars in the past. Jennings saw but
did not stop "hundreds" of other speeders
that day. Jennings Dep. at 42. He
explained that Tiffany’s speeding and the
fact that a male passenger was slumping
in the front seat while wearing a
baseball cap drew his attention to
Tiffany’s vehicle.

  Jennings followed the vehicle and saw
Tiffany fail to signal prior to changing
lanes. He then stopped her, stating that
he did so because she was speeding and
failed to signal properly. He asked both
Tiffany and Jimenez for their drivers’
licenses and asked Tiffany questions
about the nature of her relationship with
Jimenez. According to Trooper Jennings,
he is more likely to ask questions about
the relationship between vehicle
occupants if they are of different races.
Although Jennings testified that he did
not have a "suspicion" or a "strong
feeling" that contraband was in the
vehicle, he asked Tiffany for her
permission to search her car. Plaintiffs
say Jennings justified his request by
explaining that "in the past we had made
drug seizures from mixed race couples."
Jennings Dep. at 76. Tiffany consented.
Jennings inspected and patted down the
soft-surface bags in the trunk and patted
down the area where the convertible’s top
is stored. He did not discover any
contraband. Jimenez filed a written
complaint with the ISP one week later,
which the ISP deemed unfounded.
Nonetheless, Jennings received counseling
to make him aware that what he says can
impact negatively upon the public,
regardless of his intent. While Jimenez
resides in Michigan, plaintiffs allege
that he travels on Illinois highways
several times per year, although his
prior experience with the ISP has so
intimidated him that he avoids I-55.

  The plaintiffs identified Jimenez as
part of the putative plaintiff class in
July 1996, when they filed their fourth
amended class action complaint. Almost
three years later, on April 2, 1999, the
plaintiffs moved to add Jimenez as a new
named plaintiff pursuant to Rules 15(a)
and 21 of the Federal Rules of Civil
Procedure. The plaintiffs’ motion was
untimely, to say the least: fact
discovery had closed in August 1997, a
final pre-trial order was scheduled to be
filed on July 15, 1999, and the trial
date was set for September 7, 1999.
Magistrate Judge Bobrick denied the
plaintiffs’ motion. Although he concluded
that the plaintiffs met the literal
standard for joinder set forth in Rule
20(a), he determined that the court had
discretion to deny a motion for joinder
"where it would cause delay, prejudice,
or expense" and found that adding a
plaintiff would do all of those things.
Chavez v. Ill. State Police, No. 94 CV
5307, slip op. at 2 (N.D. Ill. June 4,
1999). He noted that plaintiffs had known
about Jimenez’s claims for nearly three
years but offered no explanation as to
why they were unable to add Jimenez as a
named plaintiff earlier. Plaintiffs
objected to the magistrate’s order, but
on appeal, the district judge found that
the order was not clearly erroneous,
agreeing that joinder of Jimenez would be
prejudicial and that the plaintiffs
delayed in seeking to add him as a named
plaintiff. The district judge echoed the
magistrate judge’s observation that
"while motions to amend a complaint are
ordinarily granted, this is not an
ordinary case." Chavez v. Ill. State
Police, No. 94 CV 5307, 1999 WL 515483,
at *5 (N.D. Ill. July 15, 1999).

  Again, we review the district court’s
ruling for abuse of discretion. No one
disputes that joinder of Jimenez would be
proper under the text of Rule 20. What is
contested is whether the district court
abused its discretion to deny leave to
amend the complaint so that plaintiffs
could join a party./4 Where a responsive
pleading has already been served, "a
party may amend the party’s pleading only
by leave of court or by written consent
of the adverse party; and leave shall be
freely given when justice so requires."
Fed. R. Civ. P. 15(a). However, "leave to
amend need not be given if there is an
apparent reason not to do so, such as
’undue delay, bad faith or dilatory
motive on the part of the movant,
repeated failure to cure deficiencies by
amendments previously allowed, undue
prejudice to the opposing party by virtue
of allowance of the amendment, [or]
futility of amendment.’" Payne v.
Churchich, 161 F.3d 1030, 1036 (7th Cir.
1998), cert. denied, 527 U.S. 1004, 119
S. Ct. 2339, 144 L. Ed. 2d 236 (1999)
(quoting Foman v. Davis, 371 U.S. 178,
182, 83 S. Ct. 227, 9 L. Ed. 2d 222
(1962)).

  Similarly, we also accord wide
discretion to a district court’s decision
concerning the joinder of parties. See
Intercon Research Assoc., Ltd. v. Dresser
Indus., Inc., 696 F.2d 53, 56 (7th Cir.
1982). We have recognized that this
discretion allows a trial court to
consider, in addition to the requirements
of Rule 20, "’other relevant factors in
a case in order to determine whether the
permissive joinder of a party will
comport with the principles of
fundamental fairness.’" Id. at 58
(quoting Desert Empire Bank v. Ins. Co.
of N. Am., 623 F.2d 1371, 1375 (9th Cir.
1980)). If joinder would create
"prejudice, expense or delay" the court
may deny the motion. Charles Alan Wright, et
al., Federal Practice and Procedure sec. 1652
at 396 (2001).

  The district court conducted a reasoned
analysis of whether joinder was
appropriate and determined that it would
be fundamentally unfair to the defendants
to add Jimenez as a named plaintiff. The
court found that three factors weighed in
favor of granting the motion: plaintiffs
had a legitimate reason for requesting
joinder in that they wished to substitute
Jimenez for one of the formerly named
Hispanic plaintiffs who had been dropped
from the action; Jimenez was already
party to the action and was thus closely
related; and jurisdiction would not be
affected. Several additional factors,
however, weighed in favor of denying the
motion.

  The court determined that joinder would
be heavily prejudicial to the defendants,
as it would require, at a minimum,
further deposition testimony. Although
Jimenez had been deposed in 1997, it was
by telephone, and was much less searching
than the depositions of the named
plaintiffs. While plaintiffs argued that
they would allow additional depositions
of Jimenez, the court dismissed this
offer:

Contrary to the plaintiffs’ position
throughout much of this case, discovery
deadlines do not exist only to be
extended. The court is entitled both to
set deadlines and to expect that they
will be honored, especially when the
plaintiffs are before the court in 1999
shortly before trial seeking to extend a
1997 cut off based on events happening
and known to them in 1996.

Chavez, 1999 WL 515483, at *3. The other
factors weighing in favor of denying the
motion were that Jimenez clearly had
notice of the pending action yet
plaintiffs did not attempt to join him
earlier. "The plaintiffs knew of Jimenez
and his claims for nearly three years,
and for over one year before the close of
fact discovery in 1997 but waited until
approximately two months prior to trial
to seek to add him as a plaintiff. If
this is not delay, nothing is." Id. at
*4. The plaintiffs proffered explanation
for this delay--that they were waiting
for the resolution of a discovery related
interlocutory appeal to this Court--was
not presented to the magistrate judge and
was properly dismissed by the district
court. While plaintiffs assert that delay
alone is an insufficient reason to deny
their proposed amendment, there is a "a
sufficient basis for denial of leave to
amend . . . when the delay has caused the
opposing party undue prejudice." Textor
v. Bd. of Regents of N. Ill. Univ., 711
F.2d 1387, 1391 (7th Cir. 1983).

  We find that the district court judge
did not abuse her discretion in denying
the plaintiffs’ motion to amend their
complaint to add Jimenez as a named
plaintiff.

4. Conditioning Third Party Discovery
on Payment of $160,000

  On February 9, 1997, the plaintiffs
served a subpoena on the Illinois
Secretary of State seeking production of
eight million electronically stored
records containing names, addresses, and
related information for Illinois licensed
drivers. Plaintiffs intended to use this
information as a basis for statistical
analysis in support of their Title VI
claims. The Secretary of State objected
to the subpoena, noting that the
plaintiffs had not paid the statutorily
required fee. Plaintiffs asserted that
they had assumed the role of private
attorneys general, and therefore should
not have to pay the fee charged to
private entities; instead, they argued
that they should be treated as a
governmental entity and pay only the
actual cost for the information. When
plaintiffs then moved to compel
production, the magistrate judge denied
the motion. See Chavez v. Ill. State
Police, No. 94 CV 5307 (N.D. Ill. March
6, 1997). The district judge reviewed the
magistrate’s ruling and concluded that it
was proper. See Chavez v. Ill. State
Police, No. 94 CV 5307 (N.D. Ill. Jan.
14, 1999); Chavez v. Ill. State Police,
No. 94 CV 5307 (N.D. Ill. Dec. 30, 1998).
The defendants’ motion to quash the
subpoena was subsequently granted. See
Chavez v. Ill. State Police, No. 94 CV
5307 (N.D. Ill. Jan. 28, 1999).

  As we have already noted, plaintiffs’
Title VI claims are not before the court.
Even if the requested data were intended
to support the equal protection or right
to travel claims, however, all discovery
issues are moot in light of our
disposition of these claims. Thus we need
not review this issue.

C. Lee’s Identification of the ISP
Troopers

  As an initial matter, defendants contend
that Troopers Lauterbach and Fraher did
not stop Lee, and ask for a dismissal
based on the threshold unreliability of
Lee’s eyewitness identifications. Lee was
not issued a citation or warning, thus he
received no documentation of the stops.
To determine the names of the officers
who had stopped him, he looked at an
array of photographs of Illinois State
Police personnel, assembled by the ISP.
Lee viewed these photos on two separate
occasions, the first was about seventeen
months after he was allegedly stopped by
Fraher and over twenty-three months after
he was allegedly stopped by Lauterbach.
On both occasions, Lee identified
Lauterbach and Fraher as the ISP troopers
who stopped, detained, and searched him
in March and August of 1993,
respectively.

  The ISP denies that these stops ever
occurred. First, Lauterbach and Fraher
claim that they do not recall stopping,
detaining, or searching Lee. Second, the
ISP states that they have no record of
any traffic stop of Lee by Lauterbach or
Fraher, and no record of either of these
officers issuing Lee a citation or
warning. Third, defendants contend that
the officers were not patrolling the
relevant roads on the dates Lee alleges
he was stopped. Finally, the ISP claims
that Lee’s identifications of Lauterbach
and Fraher are inherently unreliable,
pointing to allegedly serious
deficiencies in Lee’s identifications of
the pertinent officers.
  With respect to the first argument, the
officers do not claim that they did not
stop Lee, only that they do not recall
doing so. They have produced no evidence
definitively establishing that they were
not present when Lee was stopped. Second,
the ISP has admitted that records are not
generated for all stops; without issuance
of a citation or warning a record might
not be generated./5 Third, Fraher
testified that he patrolled I-80 at the
relevant time. While ISP records indicate
that Lauterbach was not working during
part of the time period in which he is
alleged to have stopped Lee, and that
during the remainder of this period he
was patrolling other roads, the ISP has
admitted that troopers sometimes stop
vehicles outside their patrol areas.

  Finally, we can not conclude that Lee’s
identifications are so flawed as to be
inherently unreliable. The district court
concluded that Lee’s testimony created a
genuine question of material fact and was
thus sufficient to withstand summary
judgment. See Chavez v. Ill. State
Police, 27 F. Supp. 2d 1053, 1079 (N.D.
Ill. 1998). We agree. While Lee’s
descriptions of troopers Lauterbach and
Fraher contain certain inaccuracies,/6
we will not resolve credibility disputes
on a motion for summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986); Ritchie v. Glidden Co., 242
F. 3d 713, 723 (7th Cir. 2001). Thus, we
proceed to the merits of the plaintiffs’
equal protection claims.

D. The Fourteenth Amendment
Equal Protection Claims

  In November 1998, after over four years
of litigation, the district court granted
the defendants’ motion for summary
judgment on the plaintiffs’ equal
protection claims. We review de novo
grants of summary judgment. See Myers v.
Hasara, 226 F.3d 821, 825 (7th Cir.
2000). Summary judgment is proper when
"the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving
party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986). In determining whether a
genuine issue of material fact exists, we
construe all facts and inferences in the
light most favorable to the non-moving
party, drawing all reasonable and
justifiable inferences in favor of that
party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). If, however, the
record as a whole "could not lead a
rational trier of fact to find for the
non-moving party, there is no ’genuine
issue for trial.’" Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986); see also Lindemann v.
Mobil Oil Corp., 141 F.3d 290, 294 (7th
Cir. 1998).

  Plaintiffs assert that the ISP and
individual ISP officers utilize
impermissible racial classifications in
determining whom to stop, detain, and
search. Were this proven, it would amount
to a violation of the Equal Protection
Clause of the Fourteenth Amendment. See
Whren v. United States, 517 U.S. 806,
813, 116 S. Ct. 1769, 135 L. Ed. 2d 89
(1996) ("[T]he Constitution prohibits
selective enforcement of the law based on
considerations such as race . . . . [T]he
constitutional basis for objecting to
intentionally discriminatory application
of laws is the Equal Protection
Clause."). The Supreme Court, as well as
federal courts across the country, have
begun to address the potential
implications of racial profiling. See
Illinois v. Wardlow, 120 S. Ct. 673, 681
n.10 (2000) (discussing the conclusion of
the New Jersey Attorney General that
"minority motorists have been treated
differently than non-minority motorists
during the course of traffic stops on the
New Jersey Turnpike"); United States v.
Montero Camargo, 208 F.3d 1122, 1135 (9th
Cir. 2000) (en banc) (discussing "[s]tops
based on race or ethnic appearance");
Martinez v. Vill. of Mount Prospect, 92
F. Supp. 2d 780, 782 (N.D. Ill. 2000)
("Racial profiling of any kind is
anathema to our criminal justice system .
. . ."); United States v. Leviner, 31 F.
Supp. 2d 23, 33 (D. Mass. 1998) ("Motor
vehicle offenses, in particular, raise
deep concerns about racial
disparity.")./7

  Even civil rights litigation must,
however, satisfy the requirements of our
equal protection jurisprudence. To show a
violation of the Equal Protection Clause,
plaintiffs must prove that the
defendants’ actions had a discriminatory
effect and were motivated by a
discriminatory purpose. See Pers. Adm’r
of Mass. v. Feeney, 442 U.S. 256, 272-74,
99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979);
Arlington Heights v. Metro. Housing Dev.
Corp., 429 U.S. 252, 264-66, 97 S. Ct.
555, 50 L. Ed. 2d 450 (1977); Washington
v. Davis, 426 U.S. 229, 239-42, 242, 96
S. Ct. 2040, 48 L. Ed. 2d 597 (1976). We
examine each element in turn.

1.   Discriminatory Effect

  To prove discriminatory effect, the
plaintiffs are required to show that they
are members of a protected class, that
they are otherwise similarly situated to
members of the unprotected class, and
that plaintiffs were treated differently
from members of the unprotected class.
See Greer v. Amesqua, 212 F.3d 358, 370
(7th Cir. 2000), cert denied, 121 S. Ct.
568, 148 L. Ed. 2d 487 (2000); Johnson v.
City of Fort Wayne, Ind., 91 F.3d 922,
944-45 (7th Cir. 1996). Chavez and Lee
may show that the ISP treated them
differently than other similarly situated
individuals by naming such individuals or
through the use of statistics, an issue
which we explore in greater depth below.
See, e.g., United States v. Armstrong,
517 U.S. 456, 467, 116 S. Ct. 1480, 134
L. Ed. 2d 687 (1996) (noting that the
similarly situated requirement was met by
the "indisputable evidence" in Hunter v.
Underwood, 471 U.S. 222, 105 S. Ct. 1916,
85 L. Ed. 2d 222 (1985), that Blacks were
1.7 times as likely as whites to suffer
disfranchisement under the law in
question).

a. Naming a Similarly Situated
Individual

  Lee did not attempt to name a similarly
situated individual who was not stopped
or searched. Chavez alleges that
Katherine Austin--the white female from
the public defender’s office who was
following him at the time of his stop--
was a similarly situated individual
treated differently. To determine whether
Austin was similarly situated to Chavez
we "must look at all relevant factors,
the number of which depends on the
context of the case." Radue v. Kimberly-
Clark Corp., 219 F.3d 612, 617 (7th Cir.
2000).

  While we have repeatedly discussed the
similarly situated requirement in the
context of employment discrimination
cases, these discussions are rarely
extensive and do not provide any magic
formula for determining whether someone
is similarly situated. This is due,
seemingly, to the essentially factual
nature of the inquiry. Different factors
will be relevant for different types of
inquiries--it would be imprudent to turn
a common-sense inquiry into a complicated
legal one. In determining who is
similarly situated, we have also been
careful not to define the requirement too
narrowly. See, e.g., Freeman v. Madison
Metro. Sch. Dist., 231 F.3d 374, 382-83
(7th Cir. 2000); cf. Radue, 219 F.3d at
619 (noting that the similarly situated
requirement requires employees to
demonstrate that they shared "common
features essential to a meaningful
comparison" to ensure that the employee
who received the more favorable treatment
was similarly situated).

    Defendants allege that George
Koutsakis--the individual stopped by the
ISP whom Chavez was emulating--was a
similarly situated individual who was
treated the same as Chavez. The district
court agreed, and determined that Chavez
failed to show that he was treated any
differently than a similarly situated
white motorist. See Chavez v. Ill. State
Police, 27 F. Supp. 2d 1053, 1067 (N.D.
Ill. 1998). The district court found that
Austin was not similarly situated because
she was female, drove a different color
car with a non-California plate, did not
have the same items visible in her car,
and did not receive a warning ticket. See
id. The court also stated that "the fact
that [Austin] was following Chavez
essentially prevented Trooper Thomas from
subjecting her to the same treatment as
Chavez--he was engaged with Chavez at the
time." Chavez v. Ill. State Police, No.
94 CV 5307, slip op. at 22 (N.D. Ill.
July 10, 1997).

  We do not agree with the district
court’s treatment of this issue. The
relevant inquiry is whether a similarly
situated individual was treated
differently than the plaintiff, not
whether one white motorist was subjected
to the same unlawful treatment. Allowing
defendants to escape liability for
discriminating against Hispanics simply
because they occasionally mistreat white
motorists would dismantle our equal
protection jurisprudence. The fact that
Koutsakis was also stopped is simply
irrelevant to the inquiry of whether
Chavez has shown that a similarly
situated individual was treated
differently.

  Quite to the contrary of defendants’ and
the district court’s assertions, Chavez
and Austin were similarly situated in all
pertinent respects. Both were driving
down the same stretch of I-80 at the same
time, and neither committed a traffic
violation (defendants have conceded that
Chavez did not commit a violation for the
purpose of summary judgment). The factors
that distinguish Austin from Chavez do
not prevent her from being similarly
situated. First, the ISP can not legally
decide whom to stop on the basis of
gender any more than they can do so on
the basis of race, thus the fact that
Austin is female is not pertinent.
Second, nothing in the record indicates
that Trooper Thomas stopped Chavez
because he was driving a red car, or
because he was driving a rental car, or
because it was a car with California
plates. To the contrary, the ISP asserts
that Valkyrie officers do not stop
motorists on the basis of these
variables, and plaintiffs have agreed.
Third, the objects inside Chavez’s
vehicle that raised officer suspicion--
i.e. the small suitcase, fast food bags,
and atlas--were not visible until after
Chavez was pulled over, thus they could
not have been the basis for the stop.
Finally, the fact that Thomas was engaged
with Chavez does not prevent Austin from
being similarly situated. The whole point
of the plaintiffs’ claim is that after
thirty minutes of trailing the two
vehicles, Thomas stopped Chavez, who is
Hispanic, rather than Austin, who is
white.

  We thus find that Austin is a similarly
situated individual of an unprotected
class who was treated differently than
Chavez. That Lee has not been able to
name a similarly situated individual
treated differently does not, however,
end our review of his claims. Plaintiffs
attempt to show that similarly situated
individuals were treated differently than
both Chavez and Lee through the use of
statistics. The district court would not
allow plaintiffs to use statistics for
this purpose, based upon that court’s
interpretation of United States v.
Armstrong, 517 U.S. 456, a recent Supreme
Court case addressing the effects prong
of the equal protection test. We do not
agree with the district court’s
interpretation of Armstrong or its
application of Armstrong to the facts of
this case.

b. Use of Statistics to Show
Discriminatory Effect

  The Supreme Court has long noted the
importance of statistical analysis "in
cases in which the existence of
discrimination is a disputed issue."
Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 339, 97 S. Ct. 1843, 52 L.
Ed. 2d 396 (1977)./8 While few opinions
directly acknowledge that statistics may
be used to prove discriminatory effect,
the Court has repeatedly relied on
statistics to do just that. See, e.g.,
Yick Wo v. Hopkins, 118 U.S. 356, 374, 6
S. Ct. 1064, 30 L. Ed. 220 (1886)
(finding that a San Francisco ordinance
banning the operation of laundries in
wooden buildings was discriminatorily
applied to Chinese launderers where the
city denied the petitions of some two
hundred Chinese applicants who applied
for exemption from the ordinance, but
granted all but one of the eighty
petitions of the non-Chinese launderers
who applied); Hunter v. Underwood, 471
U.S. 222, 227, 105 S. Ct. 1916, 85 L. Ed.
2d 222 (1985) (finding that the fact that
a section of the Alabama Constitution
made disenfranchisement of blacks at
least 1.7 times more likely than
disenfranchisement of whites was
"indisputable evidence that the state law
had a discriminatory effect on blacks as
compared to similarly situated
whites")./9 Of course, parties may not
prove discrimination merely by providing
the court with statistical analyses. The
statistics proffered must address the
crucial question of whether one class is
being treated differently from another
class that is otherwise similarly
situated. See, e.g., Schweiker v. Wilson,
450 U.S. 221, 233, 101 S. Ct. 1074, 67 L.
Ed. 2d 186 (1981) (noting that the
plaintiffs did not offer any "statistical
support for a contention that the
mentally ill as a class are burdened dis
proportionately to any other class").
Further, "statistics are not irrefutable;
they come in infinite variety and, like
any other kind of evidence, they may be
rebutted. In short, their usefulness
depends on all of the surrounding facts
and circumstances." Teamsters, 431 U.S.
at 340.

  The Supreme Court’s decision in
Armstrong did not depart from this
precedent. Armstrong settled a dispute
among the circuits by holding that
criminal defendants bringing selective
prosecution claims must show that
similarly situated individuals were not
prosecuted, in order to obtain discovery
in support of their claim. Armstrong, 517
U.S. at 468-69. The decision reversed a
Ninth Circuit opinion which held that a
defendant did not have to demonstrate
that the government had failed to
prosecute others who were similarly
situated; indeed, this was in contrast to
the holdings of numerous other courts of
appeals, including this one, that
"require[d] the defendant to produce some
evidence that similarly situated
defendants of other races could have been
prosecuted, but were not." Id. at 469
(citing, inter alia, United States v.
Mitchell, 778 F.2d 1271, 1277 (7th Cir.
1985)). The Supreme Court made clear that
the similarly situated requirement could
not be discarded, reaffirming that the
requirement of showing discriminatory
effect is a long established requirement
in our jurisprudence. Id. at 455. The
district court in this case correctly
determined that the Supreme Court
rejected the statistics proffered by the
plaintiffs in Armstrong. See Chavez v.
Ill. State Police, 27 F. Supp. 2d 1053,
at 1066-67 (N.D. Ill. 1998). The
statistics were rejected, however, not
because plaintiffs can never use
statistics to prove discriminatory
effect, but because the particular
statistics presented to the Court did not
address the relevant issue. The criminal
defendants in Armstrong introduced an
affidavit claiming that "in every one" of
the twenty-four cases handled by the
public defender’s office in 1991 for
violations of 21 U.S.C. sec.sec. 841 and
846, the defendant was African-American.
See Armstrong, 517 U.S. at 459. The Court
explained: "The study failed to identify
individuals who were not black and could
have been prosecuted for the offenses for
which respondents were charged, but were
not so prosecuted." Id. at 470.
Presumably, then, if the study had
demonstrated that whites were arrested
and could have been prosecuted but were
not, the Court would have found the study
more useful. The Court pointed out that
"respondents could have investigated
whether similarly situated persons of
other races were prosecuted by the State
of California and were known to federal
law enforcement officers, but were not
prosecuted in federal court." Id. In
light of Armstrong, statistics
demonstrating that whites stopped for
traffic violations were not detained and
searched, even those who displayed
indicators of drug trafficking, while
similarly situated African-American or
Hispanics drivers were detained and
searched, would be sufficient to show
discriminatory effect.

  The district court noted that "at least
three appellate court decisions have
rejected statistical evidence that failed
to identify similarly situated
individuals of races other than that of
the equal protection plaintiffs." Chavez
v. Ill. State Police, No. 94 CV 5307, at
18 (N.D. Ill. July 10, 1997) (citing
United States v. Turner, 104 F.3d 1180
(9th Cir. 1997); United States v. Berger,
103 F.3d 67 (9th Cir. 1996); United
States v. Olvis, 97 F.3d 739 (4th Cir.
1996)). While the courts in these cases
rejected the statistics presented, they
did not reject, as a matter of law, the
use of statistical evidence. In two of
the cases the statistics were simply held
to be insufficient, just like in
Armstrong. See Turner, 104 F.3d at 1184-
85 (finding that the defendants-- who
relied, in part, upon the same data found
to be inadequate in Armstrong--had not
shown "that similarly-situated defendants
of other races had been left
unprosecuted"); Olvis, 97 F.3d at 745
(finding that defendant’s study "provided
no statistical evidence on the number of
blacks who were actually committing crack
cocaine offenses or whether a greater
percentage of whites could have been
prosecuted for such crimes"). The
defendant in the third case did not even
attempt "to provide credible evidence
that similarly situated persons of other
races could have been prosecuted but were
not." Berger, 103 F.3d at 72.
Additionally, it is worth noting that all
three were criminal cases in which the
defendants were seeking discovery in
support of a selective prosecution claim.

  Even if Armstrong is read to require a
criminal defendant in a selective
prosecution case to provide the precise
name of a similarly situated defendant
who was not prosecuted (a possible but
unnecessary reading), the rationale
behind such a requirement does not apply
with equal force in the context of a
civil racial profiling claim. While the
district court determined that Chavez and
Lee’s allegations of racial profiling
were analogous to selective prosecution
claims, we find that numerous differences
between the two types of claims make the
former distinguishable.

  First, the Armstrong court noted that
"[t]he similarly situated requirement
does not make a selective-prosecution
claim impossible to prove." Armstrong,
517 U.S. at 466. In a civil racial
profiling case, however, the similarly
situated requirement might be impossible
to prove. 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.

  A second distinction between this case
and Armstrong is the factual context. The
opinion in Armstrong allotted much of its
analysis to discussing the nature of
selective prosecution claims and the
considerations inherent in such claims.
The analysis is narrowly focused on the
constitutional implications of
interfering with the prosecutorial
function, a factor at the heart of a
criminal defendant’s claim of selective
prosecution, but not directly at issue in
a plaintiff’s civil claim of racial
profiling. The Court described in detail
the constraints imposed upon courts
considering claims of selective
prosecution:

A selective-prosecution claim asks a
court to exercise judicial power over a
"special province" of the Executive. The
Attorney General and the United States
Attorneys retain "broad discretion" to
enforce the Nation’s criminal laws. They
have this latitude because they are
designated by statute as the President’s
delegates to help him discharge his
constitutional responsibility to "take
Care that the Laws be faithfully
executed." As a result, "the presumption
of regularity supports" their
prosecutorial decisions and, "in the
absence of clear evidence to the
contrary, courts presume that they have
properly discharged their official
duties." In the ordinary case, "so long
as the prosecutor has probable cause to
believe that the accused committed an
offense defined by statute, the decision
whether or not to prosecute, and what
charge to file or bring before a grand
jury, generally rests entirely in his
discretion."

    . . . .

  In order to dispel the presumption that
a prosecutor has not violated equal
protection, a criminal defendant must
present "clear evidence to the contrary."
. . . Judicial deference to the decisions
of these executive officers rests in part
on an assessment of the relative
competence of prosecutors and courts. . .
. It also stems from a concern not to
unnecessarily impair the performance of a
core executive constitutional function.

Armstrong, 517 U.S. at 464-65 (citations
omitted).

  In short, Armstrong emphasized both the
discretion accorded to prosecutors and
the fact that it would not be impossible
to name a similarly situated individual
treated differently in the context of a
selective prosecution claim. We find
that, although Armstrong is reasonably
read to require criminal defendants to
name an individual who was not
prosecuted, the instant case involves
police conduct, not prosecutorial
discretion, and is in a civil, not
criminal, context. This case is thus not
like Armstrong. Therefore, plaintiffs do
not have to provide the court with the
name of an individual who was not
stopped; instead they may attempt to use
statistics to show that the ISP treated
them differently than other motorists who
were similarly situated. While it is true
that statistics alone rarely state a
violation of equal protection--indeed,
only in the Title VII or jury venire
context is this possible, as discussed
infra--they can be sufficient to
establish discriminatory effect.

c.   The Plaintiffs’ Statistics

  Given our foregoing conclusions, we must
now examine the statistics proffered by
the plaintiffs. The pertinent inquiry is
whether Operation Valkyrie troopers stop,
detain, and search African-American and
Hispanic motorists when the troopers do
not stop, detain, and search similarly
situated white motorists. Plaintiffs
contend that this question must be
answered in the affirmative. They allege
that their statistics show that African-
American and Hispanic motorists are
stopped at a significantly higher rate
than are white motorists, based upon the
representation of these groups both in
the Illinois population and on Illinois
roads, thus evidencing a disproportionate
impact upon African-American and Hispanic
motorists.

  There has been extensive debate, before
the district court and this court, as to
the relative merits of these statistics.
Defendants contend that the population
benchmarks used to determine the Hispanic
and African-American populations in
Illinois are inaccurate, that the ISP
databases used to determine what
percentages of these groups are stopped
by ISP officers do not constitute a
random sample of ISP stops, and that the
plaintiffs’ experts did not take into
account appropriate confounding
variables. The defendants also challenge
the qualifications of plaintiffs’ two
experts. We will assume for the sake of
argument that these experts are qualified
because the district court did not
address the issue.

   The magistrate judge, in his report and
recommendation, found that plaintiffs’
evidence "simply fails to prove what
plaintiffs contend it does." Chavez v.
Ill. State Police, No. 94 CV 5307, slip
op. at 19 (N.D. Ill. July 10, 1997). He
specifically cited the deficiency of the
field reports, finding they were
"meaningless" because they were not
compiled for every stop and, therefore,
did not comprise a random or regular
sample of motorists stopped by the ISP.
Id. The district judge did not examine
the merits of the statistics because she
determined that, regardless of their
merit, they could not salvage the
plaintiffs’ claims as a matter of law.
See Chavez, 27 F. Supp. 2d at 1065. Two
years later, defendants moved to strike
plaintiffs’ experts’ reports under the
standard set forth in Daubert v. Merrell
Dow Pharmaceuticals, 509 U.S. 579, 592-
96, 113 S. Ct. 2786, 125 L. Ed. 2d. 469
(1993). The district court noted that it
was "unclear why the defendants are
raising the Daubert issue for the first
time now," Chavez v. Ill. State Police,
No. 94 CV 5307 (N.D. Ill. July 8, 1999),
and denied the motion without prejudice.
Chavez v. Ill. State Police, No. 94 CV
5307, 1999 WL 592187, at *22 (N.D. Ill.
Aug. 2, 1999). On appeal, plaintiffs
request that we remand to the district
court for a thorough review of the
statistics, if we determine that
statistics could be used to show
discriminatory effect.

  Remand is not necessary. First, the
magistrate judge did consider the
statistics. "Determining the validity and
value of statistical evidence is firmly
within the discretion of the district
court, and we will reverse its findings
only if they are clearly erroneous." EEOC
v. O & G Spring and Wire Forms Specialty
Co., 38 F.3d 872, 876 (7th Cir. 1994)
(citing Pullman-Standard v. Swint, 456
U.S. 273, 287-90, 102 S. Ct. 1781, 72 L.
Ed. 2d 66 (1982)). Second, though our
reasons differ slightly from those of the
magistrate judge, it is clear that these
statistics can not satisfy the
discriminatory effect element of the
plaintiffs’ prima facie case--they are
simply insufficient as a matter of law.
As we have noted, expert analysis must be
both relevant and reliable, and the
statistics here are neither. See Adams v.
Ameritech Servs., Inc., 231 F.3d 414, 423
(7th Cir. 2000) (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152, 119 S. Ct.
1167, 143 L. Ed. 2d 238 (1999)).

  We have already discussed the two
pertinent ISP databases that contain
records resulting from ISP stops: the
"citations and warnings" database and the
"field reports" database. The citation
and warnings database records every
citation or warning that is issued,
including the name of the individual
receiving the citation or warning and the
basis for the action. The field reports,
in contrast, are only completed in
certain limited circumstances such as
when contraband is found, when a
custodial arrest is made, when canines
are involved, or when there is damage to
police equipment or injury to a trooper;
though even then, they are not always
completed. Of the 1.8 million incidents
in which citations or warnings were
issued in the eleven police districts
with Valkyrie teams,/10 only 88,618
resulted in field reports./11 Thus, for
the relevant time period, less than five
percent of incidents which gave rise to a
citation or warning resulted in a field
report. Plaintiffs focused primarily on a
subset of the field reports--the
"Valkyrie field reports." These reports
are generated when an ISP officer uses
Valkyrie skills or obtains information of
interest to the Valkyrie program. The
officer is encouraged to fill out a field
report and to mark it with a "V."

  The ISP does not keep a comprehensive
record of all motorists stopped; there is
no database that tracks every stop, the
race of the parties involved, and whether
a search took place. This is ultimately
the type of information that would be
useful in a suit such as this, as it
would clearly indicate what percentages
of African-American and Hispanic
motorists were being stopped and searched
on Illinois highways. Of course, under
Armstrong, plaintiffs have to do more
than simply proffer percentages of stops,
but we can defer this issue for the
moment.

  The Valkyrie field reports are the
source for the bulk of the plaintiffs’
statistics, and were the basis of the
equal protection claims they presented to
the district court. Plaintiffs assert
that the number of Valkyrie field reports
issued to Hispanic and African-American
motorists is more than two standard
deviations over the expected norm, based
upon the representation of each of these
groups in the population. Such a finding,
if based upon appropriate statistical
analysis, would be statistically
significant. See Adams v. Ameritech
Services, Inc., 231 F.3d 414, 424 (7th
Cir. 2000) ("Two standard deviations is
normally enough to show that it is
extremely unlikely . . . that the
disparity is due to chance . . . .");
Mister v. Ill. Cent. Gulf R. Co., 832
F.2d 1427, 1431 (7th Cir. 1987) (noting
the "’rule’ that findings should be
accepted as ’statistically significant’
when the observations are more than two
standard deviations away from the values"
that would result if there was no
discrimination).

  We are reluctant, however, to derive any
conclusions about the racial breakdown of
those motorists stopped, detained, and
searched by Valkyrie officers based upon
the Valkyrie field reports. First of all,
plaintiffs have not told us how many
Valkyrie field reports there are, or how
many were analyzed. One record document
indicates that there were 306 field
reports completed by Valkyrie officers in
1992; plaintiffs then conducted a "random
sample" of this data. There is no
indication of the total number of stops
this is being compared to, thus it is
impossible to tell if this sample size is
sufficiently large to be reliable. See
Soria v. Ozinga Bros., Inc., 704 F.2d
990, 995 (7th Cir. 1992) (noting that
"[c]ourts in Title VII actions have
almost uniformly rejected statistical
conclusions based upon such small
samples"). Further, the field reports
(and particularly the Valkyrie field
reports) are completed on a selective
basis after limited types of enforcement
activity. This type of non-random sample
might undermine the reliability of the
statistics. See, e.g., United States v.
Johnson, 185 F.3d 765, 769 (7th Cir.
1999) (explaining difficulties with non-
random sampling); Bush v. Commonwealth
Edison Co., 990 F.2d 928, 932 (7th Cir.
1993) (noting that the failure to examine
a random sample of work records prevented
the proffered statistics from
demonstrating a pattern of racial
discrimination).

  While the citations and warnings
database--which includes all citations
and warnings issued by ISP officers--
could potentially provide a more accurate
estimation of the numbers of motorists
stopped, detained, and searched, this
database does not record the race of the
motorist. The numbers of Hispanics
represented can be estimated through an
analysis of Hispanic surnames, but there
is no mechanism for calculating the
numbers of whites or African-Americans
issued citations or warnings. Without
comparative racial information,
plaintiffs can not prove that they were
stopped, detained, or searched, when sim
ilarly situated whites were not.

  The limitations of the field reports and
citations and warnings databases only
scratch the surface of potential problems
with the proffered statistics. The crux
of the matter lies in the population
benchmarks. As already noted, the
plaintiffs compared the numbers derived
from the Valkyrie field reports with the
representation of whites, African-
Americans, and Hispanics ostensibly in
the Illinois population and on Illinois
roads. We find that these population
benchmarks can not provide an adequate
backdrop for assessing the racial
composition of drivers faced by Valkyrie
officers, and thus can not
indicatewhether Valkyrie officers
disproportionately stop, detain, and
search Hispanics and African-Americans.

  The first benchmark used by the
plaintiffs was the 1990 Census. It is
widely acknowledged that the Census fails
to count everyone, and that the
undercount is greatest in certain
subgroups of the population, particularly
Hispanics and African-Americans. See
Dep’t of Commerce v. U.S. House of
Representatives, 525 U.S. 316, 322-23,
119 S. Ct. 765, 142 L. Ed. 2d 797 (1999);
Tucker v. Dep’t of Commerce, 958 F.2d
1411, 1412-13 (7th Cir. 1992); David H.
Kaye & David A. Friedman, Reference Guide
on Statistics, in Reference Manual on
Scientific Evidence 83, 98 (Federal Judicial
Center ed., 2d ed. 2000). We further note
that the preliminary data from the 2000
Census indicates that the number of
Hispanics and Latinos living in the
United States has increased by 57.9% over
the past ten years. See U.S. Census 2000
Population and Housing Tables, PHC-T-1,
tbl. 4, at
http://www.census.gov/population/www/
cen2000/tablist.html (last visited April
18, 2001). The data also indicates that
in 2000, 12.3% of the Illinois population
was Hispanic or Latino, as compared to
7.9% in 1990. See id. at PHC-T-6, tbl. 5.
This recent data is simply another
indication that the 1990 Census may not
have accurately represented the Hispanic
and African-American populations in
Illinois for the relevant period.

  Despite its flaws, the Census data may
be the best population data available. It
is utilized by the state of Illinois to
conduct redistricting, see Ill. Const. art.
IV, sec. 3(b), and is occasionally
referenced by this court in order to
determine the representation of varying
ethnic and racial groups in the
population. See, e.g., Bradley v. Work,
154 F.3d 704, 706 (7th Cir. 1998); United
States v. Barry, 71 F.3d 1269, 1272 n.2
(7th Cir. 1995). Even if it were entirely
accurate, however, Census data can tell
us very little about the numbers of
Hispanics and African-Americans driving
on Illinois interstate highways, which is
crucial to determining the population of
motorists encountered by the Valkyrie
officers. Other surveyors have noted as
much, and have "sought to measure the
racial composition of the traveling
public on the road." David A. Harris, The
Stories, The Statistics, and The Law: Why
"Driving While Black" Matters, 84 Minn. L. Rev.
265, 278 (1999) (discussing the study by
Dr. John Lamberth of Temple University in
which he constructed teams to "count[ ]
the cars on the road and tabulate[ ]
whether the driver or another occupant
appeared black").

  Perhaps to address this problem, the
plaintiffs also relied upon the 1990
Nationwide Personal Transportation Survey
(NPTS). This is a nationwide telephone
survey conducted every five years by the
Federal Highway Administration of the
U.S. Department of Transportation, aimed
at providing a "picture of passenger
travel in the United States." Nationwide
Personal Transportation Survey, at
http://www.bts.gov/ntda/npts (last
visited April 18, 2001). Plaintiffs
utilized the NPTS to ascertain the
percentage of personal vehicle trips
taken by African-American and Hispanic
drivers, as well as the number of
personal vehicle miles driven by these
groups. The data, however, was not
intended to be used in this manner. The
survey itself noted that "the samples
were designed to produce regional and
national-level estimates. Thus, estimates
for individual local areas . . . or
States may not be based on large enough
sample sizes and may be imprecise."
User’s Guide for the Public Use Tapes:
1990 Nationwide Personal Transportation
Survey, II-4. The small sample sizes were
noted within the survey material: only
868 households in Illinois participated,
encompassing 1120 whites, 118 blacks, and
51 Hispanics. Due to the small numbers of
African-Americans and Hispanics surveyed,
the NPTS data would suggest that there
are even fewer African-Americans and
Hispanics in Illinois than is indicated
by the Census. Clearly, the NPTS was not
intended to provide and can not
accurately provide racial breakdowns for
the population of motorists on Illinois
roads. Further, while the survey is
"particularly well suited for measuring
repetitive, local travel," Nationwide
Personal Transportation Survey, at
http://www.bts.gov/ntda/npts (last
visited April 18, 2001), it is less
relevant to determining who is traveling
on the interstate highways. Neither can
it indicate the number of non-Illinois
residents traveling on the interstate
highways.

  The defendants’ expert claimed that the
"insurmountable problem with the
statewide tests is with the overall popu
lation benchmark." Donahue Report at 14.
We agree. These population baselines are
simply insufficient to determine the
racial makeup of motorists on Illinois
highways. Thus, without reliable data on
whom Valkyrie officers stop, detain, and
search, and without reliable data
indicating the population on the highways
where motorists are stopped, detained,
and searched, we can not find that the
statistics prove that the Valkyrie
officers’ actions had a discriminatory
effect on the plaintiffs.

2.   Discriminatory Intent

  We have found that Chavez has proven
that defendants’ actions had a
discriminatory effect on him but that
Lee, who relied solely on the plaintiffs’
statistics, has not. Even if we had
determined that Lee proved effect,
however, both plaintiffs must still prove
discriminatory intent in order to
establish a violation of the Equal
Protection Clause. See Washington v.
Davis, 426 U.S. 229, 242, 96 S. Ct. 2040,
48 L. Ed. 2d 597 (1976); Greer v.
Amesqua, 212 F.3d 358, 370 (7th Cir.
2000), cert denied, 121 S. Ct. 568, 148
L. Ed. 2d 487 (2000); Johnson v. City of
Fort Wayne, Ind., 91 F.3d 922, 945 (7th
Cir. 1996). Plaintiffs must show that the
"decisionmakers in [their] case acted
with discriminatory purpose." McClesky v.
Kemp, 481 U.S. 279, 292, 107 S. Ct. 1756,
95 L. Ed. 2d 262 (1987); Nabozny v.
Podlesny, 92 F.3d 446, 453 (7th Cir.
1996). "’’Discriminatory purpose’ . . .
implies more than . . . intent as
awareness of consequences. It implies
that the decisionmaker . . . selected or
reaffirmed a particular course of action
at least in part ’because of’ . . . its
adverse effects upon an identifiable
group.’" McClesky, 481 U.S. at 298
(quoting Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256, 279, 99 S. Ct. 2282, 60 L.
Ed. 2d 870 (1979)); Hearne v. Bd. of
Educ. of City of Chi., 185 F.3d 770, 776
(7th Cir. 1999) (same).

  Plaintiffs offer little evidence
specific to their case that would support
an inference that racial considerations
played a part in their stops, detentions,
and searches. Instead they argue that
their statistics compel an inference of
purposeful discrimination. We will
consider the non-statistical evidence
first, construed in the light most favor
able to the plaintiffs.

  Plaintiffs present evidence relating
both to the named plaintiffs’ stops and
to the ISP in general. During the stop
and search of Gregory Lee, it is asserted
that Trooper Fraher justified the stop by
saying that one can never tell with "you
people." Trooper Cessna, a participant in
the search involving Peso Chavez, said in
his deposition that he was trained that a
motorist’s race is one "indicator" that
"you’ve got to keep in mind." The
remainder of the evidence relates to the
operations and practices of the ISP: 1)
The ISP will not "open a case" when a
citizen who received a citation complains
that he did not commit any offense, but
was instead stopped on the basis of race;
2) The ISP’s Office of Inspection and
Audits does not investigate the issue of
race as it affects trooper enforcement
activity; 3) Selected ISP drug
interdiction training materials emphasize
the alleged predominance of Hispanics
among those highway travelers carrying
illegal drugs; 4) Through affidavit
testimony one trooper said that ISP
officers are not prohibited from
considering race as a factor, and another
stated that race can be a permissible
factor to consider in deciding what
motorists to stop (for example, in the
context of an all-points bulletin or in
deciding to conduct a Terry stop); and 5)
From 1990 to 1994 Snyders reviewed
monthly statistics showing that African-
American and Hispanic motorists comprised
more than sixty percent of motorists
searched by Valkyrie officers in District
Six.

  In order to carry their burden, Chavez
and Lee must prove that they were
stopped, detained, and searched because
the defendant officers involved in their
stops were motivated by a discriminatory
intent. Chavez points to one piece of
indirect evidence that his stop was
racially motivated: Trooper Cessna, one
of the officers who searched Chavez,
testified that sometimes race is an
indicator to keep in mind. Other evidence
weighs against drawing a conclusion of
discriminatory intent. As part of his
investigation in the Koutsakis case,
Chavez submitted a written memo to Nancy
Hollander detailing the February 18, 1993
stop and search; he stated that none of
the troopers said anything which
"appeared to be racially motivated."
Further, Trooper Thomas listed Chavez’s
race as "white" on the field report
regarding Chavez’s stop and search, even
though there was a listing for
"Hispanic." There is nothing in the
record to indicate that Thomas thought
Chavez was Hispanic and simply decided to
list his race as white in an attempt to
disguise his motivations.

  Lee offers specific evidence of racial
animus during his stop: the statements
made by Trooper Fraher that one can never
tell with "you people." While we
certainly do not approve of racially
insensitive remarks, such comments do not
by themselves violate the Constitution.
See Sherwin Manor Nursing Ctr. v.
McAuliffe, 37 F.3d 1216, 1221 (7th Cir.
1995); Bell v. City of Milwaukee, 746
F.2d 1205, 1259 (7th Cir. 1984). "This
does not mean, however, that the use of
racially derogatory language is without
legal significance. Such language is
strong evidence of racial animus, an
essential element of any equal protection
claim." DeWalt v. Carter, 224 F.3d 607,
612 n.3 (7th Cir. 2000); Bell, 746 F.2d
at 1259. Lee has not proffered any
evidence of racial animus on the part of
the other officers who allegedly stopped
and searched him. The other officers who
stated that race might be a factor to
consider had nothing to do with the stops
of Lee or Chavez.

  The allegations relating to the
practices and procedures of the ISP do
not demonstrate discriminatory intent in
the stopping of the named plaintiffs
because plaintiffs have not shown that
the ISP required or encouraged Valkyrie
officers to racially profile. There is
actually evidence to the contrary. The
first page of the Operation Valkyrie
Officer’s Guide to Drug Interdiction
Techniques states:

  The success of the Valkyrie program is
directly linked to its eschewment from
the use of any form of violator profiles.
The Illinois State Police has never
endorsed, condoned or promoted the use of
any profiling system in its interdiction
program. Criminal elements exist in
virtually every racial, national, tribal,
religious, linguistic and cultural group.
An officer whose enforcement stops are
based on ethnicity is guilty of civil
rights violations and is subject to
prosecution in the federal courts.
Criminality transcends any perceived
racial, ethnic or socio-economic
parameters; to focus on a single segment
of society is to limit your enforcement
opportunities.

Operation Valkyrie: An Officer’s Guide to
Drug Interdiction Techniques at i. Even a
stringent review of the tapes of Officer
Snyders’ training sessions shows that,
during the sessions, Snyders discourages
the use of race as an indicator as
"counterproductive." One of plaintiffs’
experts-- James Fyfe, professor in the
Criminal Justice Department at Temple
University--stated that, based on the
material he had reviewed, the ISP was
doing a "terrific job of apprehending
drug offenders in a way that acknowledges
people’s constitutional rights."
Plaintiffs’ Amended Response to
Defendants’ Ninth Request for Admission
of Facts para. 8.

  Just because the official policy is to
decry racial profiling, however, does not
automatically mean that defendants are
free from reproach:

  We are satisfied that the State Police
does not embrace an official policy to
engage in racial profiling or any other
form of intentional disparate treatment
of minority motorists. To the contrary,
the officially-stated policy has always
been to condemn reliance upon
constitutionally-impermissible factors.
The message in these official policies,
however, was not always clear and may
have been undermined by other messages in
both official and unofficial policies.
What really matters, ultimately, is how
official policies are interpreted and
translated into actual practices in the
barracks across the state and out on the
road.

State v. Ballard, 752 A.2d 735, 744 (N.J.
Super. Ct. App. Div. 2000). In this case,
though, we do not think that the one ISP
document referencing the high number of
Hispanics involved in the drug trade
visibly undermined the message that
racial profiling was illegal and to be
avoided.

  Plaintiffs’ non-statistical evidence
does not prove that the defendants
intended to discriminate against Chavez
when they stopped and searched him. Nor
is there sufficient evidence to conclude
that the three different troopers who
stopped Lee did so with intent to
discriminate. We thus turn to plaintiffs’
statistical evidence.

  Only in "rare cases [has] a statistical
pattern of discriminatory impact
demonstrated a constitutional violation,"
McClesky v. Kemp, 481 U.S. 279, 293 n.12,
107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987)
(citing Gomillion v. Lightfoot, 364 U.S.
339, 81 S. Ct. 125, 5 L. Ed. 2d 110
(1960); Yick Wo v. Hopkins, 118 U.S. 356,
6 S. Ct. 1064, 30 L. Ed. 220 (1886)),
though "the Court has accepted statistics
as proof of intent to discriminate in
certain limited contexts." Id. at 293.
Specifically, "[t]he Court has accepted
statistical disparities as proof of an
equal protection violation in the
selection of a jury venire in a
particular district" and "has accepted
statistics in the form of multiple-
regressions analysis to prove statutory
violations under Title VII of the Civil
Rights Act of 1964." Id. at 293-94; see,
e.g., Int’l Bhd. of Teamsters, 431 U.S.
324, 97 S. Ct. 1843, 52 L. Ed. 2d 396
(1977); EEOC v. O & G spring & Wire Forms
Specialty Co., 38 F.3d 872, 876 (7th Cir.
1994). It is possible that the Supreme
Court would also accept statistics as
sole proof of intent in the context of
challenges to legislative redistricting.
See Hunt v. Cromartie, 526 U.S. 541, 548-
49, 119 S. Ct. 1545, 143 L. Ed. 2d 731
(1999) (finding that circumstantial
evidence, including statistical evidence,
"tend[ed] to support an inference that
the state drew its distinct lines with an
impermissible racial motive--even though
[plaintiffs] presented no direct evidence
of intent"); Smith v. Boyle, 144 F.3d
1060, 1067-68 (7th Cir. 1998) (Flaum, J.
concurring in part and dissenting in
part) (noting that Supreme Court cases
addressing legislative redistricting
indicate that discriminatory effect might
suffice to establish intent); see also
Gomillion v. Lightfoot, 364 U.S. 339, 81
S. Ct. 125, 5 L. Ed. 2d 110 (1960)
(finding that the Alabama legislature
violated the Fifteenth Amendment by
altering the city boundaries in a way
that excluded 395 of 400 black voters
without excluding a single white voter).
None of these situations, however, are
before us. Instead, plaintiffs ask us to
rely on their statistics, which allegedly
show discriminatory effect, to conclude
that the ISP and the individual officer-
defendants are intentionally
discriminating against the plaintiffs. In
this context, statistics may not be the
sole proof of a constitutional violation
and neither Chavez nor Lee have presented
sufficient non-statistical evidence to
demonstrate discriminatory intent.

  The plaintiffs have thus not met their
burden of showing that the ISP or its
individual officers purposefully
discriminated against them. Because
plaintiffs have not proven the prima
facie elements of an equal protection
claim under the Fourteenth Amendment, we
will affirm the district court’s grant of
summary judgment in favor of the
defendants.

E.   Right to Travel Claims

  The plaintiffs’ first amended complaint
alleged that the defendants’ actions
unreasonably burdened the fundamental
right to travel guaranteed by Article VI,
Section 2 of the U.S. Constitution and by
the Privileges and Immunities Clause of
the Fourteenth Amendment. The plaintiffs
claimed that defendants’ conduct
prevented them from "freely traveling the
highways in the State of Illinois." The
district court determined that, while
plaintiffs’ complaint alleged violations
of the right to travel, the factual
allegations of the complaint failed to
allege any violations of the right to
interstate travel--that is, the right to
travel among the states. See Chavez v.
Ill. State Police, No. 94 CV 5307, 1996
WL 65992 (N.D. Ill. Feb. 12, 1996). Thus,
the court concluded that only intrastate
travel--travel within the state of
Illinois--was raised by the allegations
of the complaint. See id.

  The district court then determined that
"[n]either the Supreme Court nor the
Seventh Circuit have addressed whether
intrastate travel is afforded the same
protection under constitutional
principles as interstate travel" and
declined to conclude that it is. Id. The
court dismissed the plaintiffs’ claims
pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Plaintiffs
appeal this ruling, arguing that Chavez’s
right to travel claim should not have
been dismissed.

  We review the district court’s dismissal
under Rule 12(b)(6) de novo, examining a
plaintiff’s factual allegations and any
inferences reasonably drawn therefrom in
the light most favorable to the
plaintiff. See Marshall-Mosby v. Corp.
Receivables, Inc., 205 F.3d 323, 326 (7th
Cir. 2000). Dismissal under Rule 12(b)(6)
is proper only if the plaintiff could
prove no set of facts in support of his
claims that would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-46, 78
S. Ct. 99, 2 L. Ed. 2d 80 (1957); Veazey
v. Communications & Cable of Chi., Inc.,
194 F.3d 850, 854 (7th Cir. 1999). "[I]f
it is possible to hypothesize a set of
facts, consistent with the complaint,
that would entitle the plaintiff to
relief, dismissal under Rule 12(b)(6) is
inappropriate." Veazey, 194 F.3d at 854
(citing Graehling v. Vill. of Lombard,
Ill., 58 F.3d. 295, 297 (7th Cir. 1995)).

  The right to travel "embraces at least
three different components:" 1) the right
of a citizen of one state to enter and
leave another state; 2) the right to be
treated as a welcome visitor rather than
an unfriendly alien when temporarily
present in the second state; and 3) for
those travelers who elect to become
permanent residents, the right to be
treated like other citizens of that
state. See Saenz v. Roe, 526 U.S. 489,
500, 119 S. Ct. 1518, 143 L. Ed. 2d 689
(1999).

  We do not agree with the district court
that Chavez’s claim only alleged a
violation of his right to intrastate
travel. Chavez alleges, in effect, that
the ISP’s practices are a barrier to his
ability to enter and leave the state of
Illinois. This is a legal claim based on
the first component of the right to
interstate travel, and the district court
should have examined whether the
complaint properly stated a claim under
this component. We will thus consider
whether Chavez could prove any set of
facts that would prevent dismissal of his
interstate travel claims under Rule
12(b)(6).

  The first component of the right to
travel prohibits direct impairment of the
right to move between the states, that
is, the right to go from one place to
another, including the right to cross
state borders while en route./12 The
scope of this component is not well
defined because it has received only
limited treatment from the Supreme Court.
Past cases "spoke in terms of ’actual
barriers’ to interstate movement," though
the component may encompass a broader
range of prohibitions. Md. State
Conference of NAACP Branches v. Md. Dept.
of State Police, 72 F. Supp. 2d 560, 568
(citing Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 277, 113 S. Ct.
753, 122 L. Ed. 2d 34 (1993); Zobel v.
Williams, 457 U.S. 55, 60 n.6, 102 S. Ct.
2309, 72 L. Ed. 2d 672 (1982)). Even
giving this prohibition a broad scope,
however, plaintiffs’ factual allegations,
if proved, would not demonstrate any
direct impairment. Defendants have done
nothing to prevent Chavez from entering
or leaving the state. Further, Chavez has
asserted that he will travel to Illinois
in the future, not that the defendants
are preventing him from doing so.
Chavez’s claim that he was stopped in
Illinois on the basis of his race, simply
does not state a right to travel claim,
based upon the first component of that
right, under which relief could be
granted. See Saenz, 526 U.S. at 501
(noting that the California statute at
issue, limiting the maximum welfare
benefits available to newly arrived
residents, did not impose an obstacle to
plaintiffs’ entry into the state).

  We thus turn to the second component of
the right to travel, expressly protected
by Article IV, Section 2, Clause 1 of the
Constitution: "The Citizens of each State
shall be entitled to all Privileges and
Immunities of Citizens in the several
States." The purpose of this provision is
to protect non-residents from
discrimination "where there is no
substantial reason for the discrimination
beyond the mere fact that they are
citizens of other states." Saenz, 526
U.S. at 502 (citing Toomer v. Witsell,
334 U.S. 385, 396, 68 S. Ct. 1156, 92 L.
Ed. 1460 (1948)). Plaintiffs allege that
the ISP’s practice of stopping,
detaining, and searching African-American
and Hispanic motorists unreasonably
burdens their right "to be treated as
welcome visitors" in Illinois.
Plaintiffs’ complaint does not allege
that the ISP discriminates against non-
residents, however, but that the ISP
targets all African-American and Hispanic
motorists, regardless of their state of
origin. This allegation does not state a
claim under the Privileges and Immunities
Clause of Article VI.

  Plaintiffs also allege, on appeal, that
the defendants target African-Americans
and Hispanic motorists from states in the
American southwest. Defendants have
repeatedly asserted that Valkyrie
officers are not trained to stop people
based on any type of indicator, race or
otherwise, yet the defendants contradict
this statement at least twice: 1) the
defendants’ statistical expert stated
that ISP officers would be more inclined
to stop a vehicle with a license plate
from a drug source state than a vehicle
with a license place from a non-drug
source state; and 2) the defendants’
appellate brief stated that "Valkyrie
troopers focus on whether a particular
vehicle or driver is both violating the
traffic laws and also displaying any
combination of DEA-approved
characteristics associated with drug
couriers, such as license plates from a
drug source state."

  While the allegation that defendants
stop motorists driving cars from drug
source states was not before the district
court, the well-established law of this
circuit provides that, when reviewing a
dismissal under Rule 12(b)(6), "’we will
consider new factual allegations raised
for the first time on appeal provided
they are consistent with the complaint.’"
Veazey, 194 F.3d at 861 (quoting
Highsmith v. Chrysler Credit Corp., 18 F.
3d 434, 439 (7th Cir. 1994)). The
allegation, however, is rife with
problems.

  First, the allegation that Chavez was
stopped because he had an out of state
license plate is not consistent with the
complaint. The complaint is hinged upon
the allegation that Chavez was stopped
because of his race. He has never alleged
that he was stopped because of his out of
state license plate. Second, plaintiffs
asked this court to ignore the
possibility that Valkyrie officers stop
vehicles with out of state plates for the
purposes of the equal protection
analysis, dismissing the idea as a late-
day attempt by the ISP to justify the
high numbers of Hispanics stopped. The
final blow, however, is plaintiffs’ own
admission that the ISP does not engage in
pre-stop profiling based on license
plates:
The deposition testimony both of front-
line Valkyrie troopers and of the head of
the Valkyrie program shows that Valkyrie
troopers do not profile prior to stopping
a car; rather, Valkyrie encounters emerge
from routine traffic stops. In fact,
significant evidence demonstrates that
the Valkyrie program does not train
officers which motorists to stop for
violations of the traffic code; rather,
Valkyrie officers are trained to identify
indicators of drug trafficking only after
a vehicle has already been stopped.

Plaintiffs’ Preliminary Response to
Defendants’ Daubert Motion to Strike
Plaintiffs’ Expert Reports, at 17-18.
Plaintiffs can not base their right to
travel claim upon something that they
have admitted does not occur.

  In light of the above analysis, we will
affirm the Rule 12(b)(6) dismissal of
Chavez’s right to travel claim. We do not
reach the question of whether targeting
vehicles with out of state license plates
would be a violation of the right to
travel.

F. Supervisory Liability Under 42
U.S.C. sec. 1983

  Plaintiffs claim that defendant Master
Sergeant Michael Snyders, the former
statewide coordinator of the Valkyrie
program, is liable under 42 U.S.C. sec.
1983 for his supervision of the officers
charged in this action./13 The
defendants moved for summary judgment on
the supervisory liability claim, and the
magistrate judge recommended granting the
motion. The district court agreed and
granted summary judgment, finding that
"the plaintiffs have failed to point to
any evidence linking Snyders’ training to
Cessna’s use of race, and have failed to
create a question of material fact as to
whether Snyders taught state troopers to
use race as a factor in their work, or
facilitated or condoned racially
discriminatory enforcement." Chavez, 27
F. Supp. 2d at 1076.

  We review de novo a grant of summary
judgment, as explained above. "Liability
under sec. 1983 requires proof that the
defendants were acting under color of
state law and that the defendants’
conduct violated the plaintiff’s rights,
privileges, or immunities secured by the
Constitution or laws of the United
States." Lanigan v. Vill. of E. Hazel
Crest, Ill., 110 F.3d 467, 471 (7th Cir.
1997) (citations omitted). No one
disputes that Snyders acted under color
of state law, thus we move to the
question of whether plaintiffs have
established that he "was personally
responsible for the deprivation of a
constitutional right." Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir.
1995).

  The doctrine of respondeat superior can
not be used to hold a supervisor liable
for conduct of a subordinate that
violates a plaintiff’s constitutional
rights. See id. "Supervisory liability
will be found, however, if the
supervisor, with knowledge of the
subordinate’s conduct, approves of the
conduct and the basis for it." Lanigan,
110 F.3d at 477 (citations omitted). That
is, "to be liable for the conduct of
subordinates, a supervisor must be
personally involved in that conduct." Id.
(citations omitted). "[S]upervisors who
are merely negligent in failing to detect
and prevent subordinates’ misconduct are
not liable . . . . The supervisors must
know about the conduct and facilitate it,
approve it, condone it, or turn a blind
eye for fear of what they might see. They
must in other words act either knowingly
or with deliberate, reckless
indifference." Jones v. City of Chi., 856
F.2d 985, 992-93 (7th Cir. 1988)
(citations omitted).

1.   Supervision of Valkyrie Troopers

  Plaintiffs allege that as head of the
District Six Valkyrie team, and then as
the Statewide coordinator of Operation
Valkyrie, Snyders was in a position which
entailed supervision and extensive
monitoring of Valkyrie troopers. Yet
Snyders was not in a supervisory position
with respect to any of the troopers named
in this case. He was not part of the
police chain of command, rather, he
conducted training sessions that the
officers attended. Plaintiffs have
proffered no support for the proposition
that an individual who trains officers
can be deemed to be their supervisor. "It
is not the obligation of this court to
research and construct the legal
arguments open to parties, especially
when they are represented by counsel."
Sanchez v. Miller, 792 F.2d 694, 703 (7th
Cir. 1986); see also Fed. R. App. P.
28(a)(9). We thus find that Snyders can
not be held liable based on any alleged
supervision of the Valkyrie troopers.

2.   Failure to Intervene

  From 1990 to 1994, Snyders reviewed
monthly statistics showing that African-
American and Hispanic motorists comprised
more than sixty percent of motorists
searched by Valkyrie officers in his
district, yet Snyders did not keep
statewide statistics after being promoted
to statewide Valkyrie coordinator.
Plaintiffs assert that this creates an
issue of fact as to whether Snyders
failed to intervene to prevent
constitutional violations. Omissions can
violate civil rights, and "under certain
circumstances a state actor’s failure to
intervene renders him or her culpable
under sec. 1983." Yang v. Hardin, 37 F.3d
282, 285 (7th Cir. 1994); see also
Gossmeyer v. McDonald, 128 F.3d 481, 494
(7th Cir. 1997) (applying the Yang
analysis to a search and seizure claim).
Yang summarized the responsibility to in
tervene:

  An officer who is present and fails to
intervene to prevent other law
enforcement officers from infringing the
constitutional rights of citizens is
liable under sec. 1983 if that officer
had reason to know: (1) that excessive
force was being used, (2) that a citizen
has been unjustifiably arrested, or (3)
that any constitutional violation has
been committed by a law enforcement
official; and the officer had a realistic
opportunity to intervene to prevent the
harm from occurring.

37 F.3d at 285 (citations omitted).

  Presumably, plaintiffs believe that
Snyders is liable under the third
category of Yang. We have already found
that the plaintiffs did not prove a
violation of their right to equal
protection. Snyders can not be held
liable for failing to intervene to
prevent a constitutional violation that
plaintiffs have not proven. Further, even
if there had been a constitutional
violation, Snyders would not have been
present and thus would have been unable
to intervene, rendering him not liable.
We thus decline to find Snyders liable
based on his alleged failure to
intervene.

3. Personal Responsibility for Deprivation
of a Constitutional Right

  Snyders could still be liable if he was
personally responsible for the
deprivation of plaintiffs’ constitutional
rights. He will be deemed to have
sufficient personal responsibility if he
directed the conduct causing the
constitutional violation, or if it
occurred with his knowledge or consent.
See Gentry, 65 F.3d at 561 (citations
omitted). The magistrate judge found that
the evidence "fails to demonstrate that
Snyders instructed, or even encouraged or
consented to, the use of race as an
indicator of illegal drug activity."
Chavez, No. 94 C 5303, at 30 (N.D. Ill.
July 10, 1997). We agree.

  Plaintiffs’ assertion that Snyders
instructed officers to use race as an
indicator is based on two facts in the
record: 1) Snyders’ training sessions
included references to drug distribution
by Hispanics and 2) Trooper Cessna, who
testified that race was one indicator to
keep in mind, identified Snyders as one
of two officers who participated in his
Valkyrie training.

  With respect to the first, neither the
tapes of those sessions nor the written
materials presented at the sessions
support a conclusion that Snyders
instructed officers to use race as an
indicator. At the beginning of the
session, Snyders explains to the officers
that the training does not teach them
whom to stop, but rather teaches
observational skills to improve their
awareness during all stops. Snyders also
states that profiles are ineffective, and
that "if troopers waited for Mexicans
driving pick-ups, they’d miss all the
white guys with dope." He states that
perhaps in 1989, Colombians were
employing Mexicans as couriers, but that
now most couriers are white males
traveling alone. He relates stopping two
Mexicans and seizing drugs, and also
relates stopping a white family of three
and seizing drugs. He tells the troopers
that three of his last four seizures of
drugs were from white motorists, and that
the fourth seizure was from a Mexican.
There is one document used in the
training sessions that indicates that, in
Texas, there are a high number of
Hispanics involved in the drug trade.

  Plaintiffs allege that, if all
inferences from these statements are
construed in their favor, there would be
a disputed issue of material fact. We
disagree. Even viewed in the light most
favorable to plaintiffs, the examples
given by Snyders are clearly intended to
illustrate that the use of race as an
indicator is counterproductive. Snyders’
occasional use of the term "Mexican" does
not lead to the conclusion that he was
training troopers to stop motorists on
the basis of their race. The fact that
one example discussed a Hispanic motorist
who was stopped for drugs "does not
create an inference that Snyders was
teaching Illinois police that Latino
drivers are more likely to be
transporting drugs." Chavez, 27 F. Supp.
2d at 1076. Further, the presentation of
one document citing the high percentage
of Hispanics in the drug trade does not
support a conclusion that Snyders
"directed" officers to racially profile.

  The second allegation is that Snyders
taught Trooper Cessna that race was one
factor to be considered in determining
whom to stop. Even if we were to accept
that Cessna was taught to use race as an
indicator--and he did not testify that he
was--there is no evidence that Snyders
did the teaching. Cessna’s original
Valkyrie training program was led by two
instructors, and he also received
subsequent training once a year in two to
three day sessions. There is no
indication who conducted these sessions.
Thus there is nothing to establish that
Snyders taught Cessna to use race, even
if Cessna was taught to do so. As the
district court noted, "[t]he fact that a
student allegedly discriminates . . .
does not necessarily mean . . . that the
student’s former teacher taught the
student to discriminate." Id. at 1075.

  We will affirm the district court’s
grant of judgment in favor of defendant
Snyders with respect to the claim of
supervisory liability.

G.   Title VI
  Plaintiffs’ original complaint requested
injunctive relief under sec. 1983 and the
Fourteenth Amendment, but the district
court dismissed this request under Rule
12(b)(6) of the Federal Rules of Civil
Procedure. See Chavez v. Ill. State
Police, 27 F. Supp. 2d 1053, 1075 (N.D.
Ill. 1998); Chavez v. Ill. State Police,
No. 94 CV 5307, 1996 WL 65992 (N.D. Ill.
Feb 12, 1996). The plaintiffs then moved
for leave to reinstate their claims for
prospective relief, claiming that the
ISP’s actions in maintaining a practice
of discrimination and in stopping,
detaining, and searching plaintiffs
pursuant to this practice constituted a
violation of the Civil Rights Act of
1964, 42 U.S.C. sec. 2000d et seq., and
the administrative regulations of the
Department of Justice effectuating Title
VI, 28 C.F.R. sec. 42.101 et seq.
Plaintiffs sought, inter alia, a
permanent injunction barring the ISP from
stopping, detaining, and searching
individuals on the basis of race with or
without legally sufficient cause or
justification. The district court found
that the plaintiffs did not have standing
to pursue claims for equitable relief
because there was no real and immediate
threat of injury. See Chavez v. Ill.
State Police, No. 94 CV 5307, 1999 WL
592187 (N.D. Ill. Aug. 2, 1999).

  In response to the district court’s
ruling, plaintiffs moved to simplify the
issues remaining for adjudication under
Rule 16 of the Federal Rules of Civil
Procedure, and asked the court to dismiss
the Title VI regulatory claims for lack
of jurisdiction. Plaintiffs also
requested leave to amend their complaint,
pursuant to Rule 15(a), to voluntarily
dismiss with prejudice the Title VI
statutory claims. The court granted the
motion to simplify and thus dismissed the
regulatory claims with prejudice under
Rule 16. See Chavez v. Ill. State Police,
No. 94 CV 5307, 1999 WL 754681 (N.D. Ill.
Sept. 9, 1999). The court denied the
motion for leave to amend the complaint,
and advised plaintiffs that, if they
elected to dismiss their remaining claims
with prejudice under Rule 41(a)(2), the
court would impose reasonable costs.
Plaintiffs then moved to dismiss the
Title VI statutory claims voluntarily and
with prejudice, under Rule 41(a)(2). The
court granted this motion. See Chavez v.
Ill. State Police, No. 94 CV 5307 (N.D.
Ill. Sept. 21, 1999); Chavez v. Ill.
State Police, No. 94 CV 5307 (N.D. Ill.
Sept. 16, 1999).

  On appeal, plaintiffs now argue that the
judge erred in finding that they lacked
standing to pursue injunctive relief, and
ask us to reinstate their Title VI
regulatory claim. Because the Title VI
claims were dismissed and are no longer
part of this litigation, we can not
review the district court’s finding or
reinstate the plaintiffs’ claim.
Plaintiffs intimate that these dismissals
were somehow improper. We find otherwise.

  The court dismissed the plaintiffs’
regulatory claims, at plaintiffs’
request, pursuant to Rule 16. Rule 16(c)
states that the court may consider, and
"take appropriate action, with respect to
(1) the formulation and simplification of
the issues, including the elimination of
frivolous claims or defenses." Fed. R. Civ.
P. 16(c)(1); see also G. Heileman Brewing
Co., Inc. v. Joseph Oat Corp., 871 F.2d
648, 650 (7th Cir. 1989) (en banc). While
this rule is directed toward pre-trial
conferences, it "is not inconsistent with
the general purpose of Rule 16" to use
this rule "to determine whether there are
any issues remaining in the case that
justify proceeding to a full trial on the
merits." 6A Charles Alan Wright, et al.,
Federal Practice & Procedure sec. 1529, at
301 (2d ed. 1990). The court would have
had the power to dispose of the claim sua
sponte and did nothing improper by
granting plaintiffs’ request for
dismissal.

  Likewise, the court dismissed the
plaintiffs’ Title VI statutory claims at
the plaintiffs’ request, pursuant to Rule
41(a)(2). Rule 41(a)(2) addresses the
effect of voluntary dismissals, and
states that "an action shall not be
dismissed at the plaintiff’s insistence
save upon order of the court and upon
such terms and conditions as the court
deems proper." Plaintiffs requested a
voluntary dismissal with prejudice and
this is what the court granted. "The case
law is clear . . . that when a district
court grants voluntary dismissal under
Federal Rule of Civil Procedure 41(a), a
plaintiff normally has neither the reason
nor the right to appeal the dismissal
because the plaintiff has received the
relief it requested." Boland v. Engle,
113 F.3d 706, 714 (7th Cir. 1997)
(citations omitted).

  Plaintiffs wanted to dismiss these
claims to enable immediate appellate
review, and they openly explained their
reasoning:

  The principal concern of this lawsuit
has always been systematic racial
profiling by the ISP. . . . As a result
of this Court’s rulings . . . this
lawsuit cannot result in an injunction .
. . . Dismissal with prejudice of these
claims will facilitate the efficient
resolution of the merits of this
litigation by permitting plaintiffs to
obtain a final judgment from which they
can immediately appeal . . . .

Plaintiffs’ Motion to Voluntarily Dismiss
with Prejudice Certain Claims at paras.
1-2, 5. By moving to dismiss the Title VI
claims, however, the plaintiffs limited
themselves to the possibility that they
could get injunctive relief based on
their equal protection or sec. 1983
claims. They ask us to reinstate the
regulatory claim, but we can not
reinstate what they voluntarily
dismissed. While they may wish this was
not so, it is the legal consequence of
their very purposeful actions.

H. Payment of Litigation Costs as a
Condition of Voluntary Dismissal

  On August 4, 1999, plaintiffs advised
the district court judge that, in
response to the court’s numerous unfavor
able rulings, they intended to dismiss
their remaining claims with prejudice in
order to take an immediate appeal. As
noted above, the court denied the request
for leave to amend the complaint,
dismissed the Title VI regulatory claims
pursuant to Rule 16 of the Federal Rules
of Civil Procedure, and advised
plaintiffs that, if they elected to
dismiss the remaining claims pursuant to
Rule 41(a)(2), the court would impose
reasonable costs. Plaintiffs opposed the
imposition of costs, but the court ruled
that "an award of reasonable costs will
be a condition precedent to entry of an
order permitting the plaintiffs to
voluntarily dismiss their remaining
claims." Chavez v. Ill. State Police, No.
94 CV 5307, 1999 WL 754681, at *6 (N.D.
Ill. Sept. 9, 1999). Plaintiffs
eventually accepted the court’s condition
on dismissal. Noting the seriousness of
the decision, the court required proof
that the named plaintiffs voluntarily
sought to dismiss their remaining claims,
and each of the named plaintiffs
submitted a sworn declaration expressly
agreeing to the conditions of dismissal.
The court then granted plaintiffs’ motion
to voluntarily dismiss the remaining
claims with prejudice under Rule
41(a)(2). The plaintiffs subsequently
filed their notice of appeal with this
court.

  In October 1999, the defendants moved
for, inter alia, immediate payment of all
costs. Plaintiffs responded that they
would seek a stay of payment pending
appeal under Rule 62(d). On October 22,
the district court granted defendants’
motion for immediate payment, noting that
the "fundamental problem with the
plaintiffs’ position regarding costs is
that the court specifically ordered that
’an award of reasonable costs will be a
condition precedent’" to voluntarily
dismissal. Chavez v. Ill. State Police,
No. 94 CV 5307 (N.D. Ill. Oct. 22, 1999)
(quoting Chavez, 1999 WL 754681, at *6
(N.D. Ill. Sept. 9, 1999)). The court
further stated that if plaintiffs "wish
to renege on their acceptance of this
condition, they must establish that they
misunderstood its nature, as a change of
heart is not enough to reopen proceedings
at this point." Id. Plaintiffs did not
attempt to withdraw their motion to
dismiss.

  In late November the district court
taxed costs in the amount of $22,800.72.
Judge Manning reiterated that payment of
costs was a condition precedent to her
dismissal order, and that the costs award
would need to be paid regardless of the
result on appeal. Following that
decision, the plaintiffs moved to alter
or amend the judgment pursuant to Rule
59. Plaintiffs also moved for a stay of
payment pending appeal. On January 13,
2000, the court denied plaintiffs’ motion
to alter or amend the judgment, but did
grant the requested stay of payment.
Shortly after, plaintiffs filed a notice
of appeal from the court’s cost orders,
challenging the decision to tax costs as
a condition on voluntarily dismissal with
prejudice.
  As we noted in our discussion of the
Title VI claims, a court may include, in
its order for voluntary dismissal,
whatever "terms and conditions" it deems
proper. Fed. R. Civ. P. 41(a)(2). The
district court has broad discretion in
this respect, and we will overturn an
imposition of conditions only if the
court abused its discretion. See Babcock
v. McDaniel, 148 F.3d 797, 799 (7th Cir.
1998); LeBlang Motors, Ltd. v. Subaru of
America, Inc., 148 F.3d 680, 686 (7th
Cir. 1998). Clearly, the court here did
not abuse its discretion. Judge Manning
repeatedly stressed the import of the
plaintiffs’ decision to voluntarily
dismiss their claims. She decided not to
assess attorneys’ fees, as the parties
would have incurred greater legal costs
had they gone to trial, but did exercise
her discretion to require the plaintiffs
to pay costs as a condition of dismissal.
The plaintiffs abandoned their arguably
meritorious remaining claims; this type
of decision should not be taken lightly,
particularly after five years of
briefing, discovery, motions, orders, and
so forth. As noted by Judge Manning, "the
award of reasonable costs to the
defendants reflects the court’s decision
that the price of a Rule 41(a)(2)
voluntary dismissal with prejudice on the
eve of trial in this hotly-litigated 1994
case is payment of reasonable costs."
Chavez v. Ill. State Police, No. 94 CV
5307 (N.D. Ill. Nov. 19, 1999). It is
true that a plaintiff seeking a voluntary
dismissal "is not required to accept
whatever conditions the district court
may impose." Marlow v. Winston & Strawn,
19 F.3d 300, 304 (7th Cir. 1994). The
appropriate response, however, would be
to decline to accept the conditions, not
to accept them and then argue that their
imposition was an abuse of discretion.
Plaintiffs agreed to the district court’s
conditions and then dismissed their
claims with prejudice. We find that the
order requiring payment of costs as a
prerequisite to voluntary dismissal did
not constitute an abuse of discretion.
Costs were properly assessed by the
district court.

  Because the plaintiffs have not
prevailed on appeal, we need not reach
the issue of whether it would have been
proper to require plaintiffs to pay costs
even if their appeal had been successful.
III.   Conclusion

  Notwithstanding the disposition of this
case, we recognize the destructive
effects of racial and ethnic profiling by
any police agency. Plaintiffs have not
proven that the Operation Valkyrie
officers of the Illinois State Police
stop, detain, and search African-American
and Hispanic motorists on the basis of
racial or ethnic profiling. Yet,
unfortunately, the oft-cited public
perception that race and ethnicity play a
role in law enforcement decisions on
Illinois highways will no doubt remain.
The ISP has asserted throughout this
litigation that they do not condone race-
based law enforcement action; much of the
evidence in this case indicates that they
endeavor to conduct police activity
through means that respect constitutional
rights. How to change public perception
and demonstrate compliance with
constitutional requirements is a matter
the State of Illinois may wish to
consider.

  On the basis of the foregoing analysis,
we AFFIRM the district court’s grant of
summary judgment in favor of the
defendants on plaintiffs’ equal
protection and supervisory liability
claims, and we AFFIRM the dismissal of
Peso Chavez’s right to travel claim.

FOOTNOTES

/1 For the purposes of this opinion, "white"
is meant to indicate "white, non-
Hispanic."

/2 The field report form permits racial
identification of a citizen as, inter
alia, Mexican, Puerto Rican, or Other
Hispanic; for the purposes of analysis,
Shapiro combined the several Hispanic
categories into one. The citations and
warnings database does not include infor-
mation on race and ethnicity, so plain-
tiffs’ experts estimated the number of
Hispanic motorists contained in this
database through analysis of the Spanish
surnames provided by the U.S. Census
Bureau. As there is no cohesive set of
surnames that would allow identification
of whites or African-Americans, there is
no analysis of the citations and warnings
database with respect to those groups.

/3 Plaintiffs subsequently discovered that
the Center had presented the experts with
incomplete or incorrect data. The dis-
trict court granted a motion to stay
defendants’ then pending motion for par-
tial summary judgment so plaintiffs could
obtain a new analysis of the data. Plain-
tiffs found the new statistics to be more
favorable than the original data, so they
sought to withdraw the original expert
opinions, and substitute new, revised
versions. This motion was denied. Chavez
v. Ill. State Police, 27 F. Supp. 2d
1053, 1065 (N.D. Ill. 1998). As far as we
can determine, the revised expert opin-
ions are the ones presented by the plain-
tiffs on appeal.

/4 The magistrate judge focused only on Rule
20, and did not discuss the relevancy of
Rule 15(a), which discusses amending the
pleadings, or Rule 21, which addresses
misjoinder and non-joinder of parties.
The district judge did refer to case law
addressing the Rule 15(a) standard for
denying leave to amend a complaint,
though she did not address the text of
this rule. We feel discussion of both
Rule 15 and 20 is appropriate, therefore
we address both.

/5 ISP officers are required to radio head-
quarters when making a stop, as discussed
above. However, it is not clear from the
record how long this radio log is main-
tained, or whether plaintiffs attempted
discovery along these lines.

/6 Lee identified Lauterbach as a person in
his late twenties or early thirties with
a mustache and a tan uniform, driving a
white or tan ISP vehicle with flashing
lights on top. In contrast, the ISP
states that Lauterbach would have been a
mustache-less, forty-six year old trooper
wearing green pants, driving a plain blue
squad car with lights located in the
grill. Lee stated that Fraher wore a
normal state trooper’s uniform and drove
a vehicle with blue flashing lights lo-
cated on top. The ISP states that Fraher
wore green pants and a baseball cap,
drove a vehicle with a red rotating light
on the dash, and patrolled with his ca-
nine Zeus in the car, whom Lee did not
see or hear.

/7 The instant case is one of several cur-
rently in progress. See Daniels v. City
of New York, No. 99 CIV. 1695 (SAS), 2001
WL 62893 (S.D.N.Y. Jan. 25, 2001) (certi-
fying a class of persons stopped and
frisked within the city of New York);
Ledford v. City of Highland Park, No. 00
C 4212, 2000 WL 1053967 (N.D. Ill. July
31, 2000) (certifying a class action of
persons subjected to racial profiling by
the Highland Park Police Department);
Farm Labor Org. Comm. v. Ohio State High-
way Patrol, 95 F. Supp. 2d 723 (N.D. Ohio
2000) (ruling on various claims in a
class action suit challenging the ques-
tioning of Hispanic motorists about their
immigration status); State of New Jersey
v. Ballard, 752 A.2d 735 (N.J. Super. Ct.
App. Div. 2000) (granting discovery in
furtherance of a claim that the N.J.
state police selectively enforce the
motor vehicle laws).

/8 Plaintiffs argued that their equal pro-
tection claims should be analyzed under
the pattern and practice analysis used in
Int’l Bhd of Teamsters. The pattern and
practice analysis is only relevant to
statutory schemes which utilize the Mc-
Donnell-Douglas burden shifting frame-
work, like Title VII, and thus it can not
be used here.

/9 The Hunter plaintiffs used their statis-
tics to satisfy the effect prong; howev-
er, they also had "convincing direct
evidence" of discriminatory intent and it
was through proof of both discriminatory
effect and intent that they proved a
violation of the Equal Protection Clause.

/10 The ISP issued a total of 3.1 million
citations and warnings over the period
from January 1990 through February 1997.
Citations and warnings issued by the same
officer at the same time were grouped
together as one incident.

/11 The defendants cited this number as the
number of total field reports, after
excluding reports by administrative and
commercial vehicle troopers. Plaintiffs
have not stated that this is an unjusti-
fiable exclusion, nor have they indicated
what the total number of field reports
would be without this exclusion.
Shapiro’s report does not say how many
field reports he reviewed, just that he
analyzed the reports from 1985-1997.
Ginger’s report indicates that the field
report database included 1.4 million
field reports, though if this is based on
the same database as Shapiro’s report, it
means that they both reviewed field re-
ports from 1985-1989, years that were not
included in the citations and warnings
database (which covered 1990 to 1997). In
the absence of any proffered alternative,
we thus assume that only 88,618 of the
citations and warnings resulted in field
reports, as stated by the defendants.

/12 The Supreme Court has refrained from
identifying the constitutional source of
this right. See Saenz, 526 U.S. at 501
(noting that the right of "free ingress
and regress to and from" neighboring
states was expressly mentioned in the
text of the Articles of Confederation).
In light of this uncertainty, we examine
whether the plaintiffs state a legal
claim under this component, even though
they only allege a violation of their
rights under the Privileges and Immuni-
ties Clauses of the Constitution.

/13 In the district court, plaintiffs also
brought claims against Terrance Gainer,
the Director of the ISP, and Edward
Kresl, District Commander of the ISP.
These claims were dismissed under Rule 16
of the Federal Rules of Civil Procedure
on the basis of the court’s granting of
summary judgment on the equal protection
claim. Plaintiffs’ briefs to this court
only alleged error in the district
court’s grant of summary judgment with
respect to defendant Snyders, though one
footnote in their equal protection analy-
sis asked us to reinstate the supervisory
claims against Gainer and Kresl. We will
not reinstate these claims as plaintiffs
did not object to the magistrate judge’s
recommendations in front of the district
court judge and therefore can not chal-
lenge them now.
