                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                  September 11, 2012
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                  TENTH CIRCUIT                     Clerk of Court



 CURTIS BLACKWELL,

                Plaintiff - Appellee,                    No. 11-2078
           v.                                           D. New Mexico
 BEN STRAIN,                                (D.C. No. 2:09-CV-00377-MCA-WPL)

                Defendant - Appellant,

 and

 JOHN DENKO; FORREST SMITH;
 TIM LABIER; DEPARTMENT OF
 PUBLIC SAFETY, State of New
 Mexico, ex rel. Motor Transportation
 Division, and Taxation & Revenue
 Department-Motor Vehicle Division,

                Defendants.


                              ORDER AND JUDGMENT *


Before MURPHY, HOLLOWAY, and GORSUCH, Circuit Judges.




       *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I.    Introduction

      Curtis Blackwell, a commercial truck driver, claimed he was stopped,

detained, subjected to a heightened inspection level, and issued a citation at the

Lordsburg, New Mexico, Port of Entry (“POE”) because he is black. Blackwell

filed a civil-rights lawsuit against, inter alia, Ben Strain, the New Mexico Motor

Transportation Division (“MTD”) officer with whom he interacted at the POE. In

his complaint, Blackwell alleged, among other things, a violation of his right to

equal protection under the law. Officer Strain moved for summary judgment,

asserting qualified immunity. After the district court denied his motion, Officer

Strain appealed. The district court erred in denying summary judgment to Officer

Strain because, under Blackwell’s version of the facts that have record support,

Officer Strain did not violate his right to equal protection under the law.

Accordingly, exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court

reverses and remands to the district court with instructions to grant summary

judgment to Officer Strain.

II.   Background

      New Mexico requires all commercial motor carriers to stop at designated

ports of entry. As vehicles proceed through the POE, an MTD officer stationed at

a POE window either directs the driver to proceed without an inspection or directs

the driver into the POE parking lot for an inspection. MTD officers inspect




                                         -2-
commercial vehicles and accompanying documentation to determine whether the

vehicles, drivers, and cargo are in compliance with state law.

      MTD officers perform three levels of inspections, with a Level I inspection

being the most thorough. Level I inspections are not at issue in this case.

Officers not scheduled to conduct Level I inspections exercise their discretion in

selecting between Level II and Level III inspections. A Level II inspection

allows an MTD officer to review a driver’s documents, including the log book

and drivers license, and conduct safety checks of the cab, trailer, equipment, and

components. A Level III inspection is limited to a review of the driver’s

documents and cargo verification.

      On August 15, 2008, Blackwell, who was driving a tractor-trailer on

Interstate 10, entered the POE. When Blackwell pulled up to the POE window,

Officer Strain directed him to pull his vehicle out of line and proceeded to

conduct a Level II inspection. During the inspection, Officer Strain discovered an

unopened bottle of gin and an unopened pack of beer in an outside storage

compartment of the trailer. Possession of alcohol under these circumstances was

a violation of New Mexico transportation regulations. As a penalty for the

violation, Officer Strain ordered Blackwell to remove his tractor-trailer from

service for twenty-four hours and assessed a $250 penalty.

      Blackwell, who is black, claimed he was subjected to selective law

enforcement because of his race and filed an equal-protection-based civil rights

                                         -3-
lawsuit against Officer Strain. Officer Strain claimed Blackwell’s race played no

part in his decision to detain Blackwell, perform a Level II inspection, or issue

Blackwell a citation. He asserted he was not yet aware of Blackwell’s race when

he decided to perform a Level II inspection on Blackwell’s tractor-trailer. He

also claimed the citation he issued Blackwell was mandatory. Officer Strain filed

a motion for summary judgment claiming, among other things, he was entitled to

qualified immunity because Blackwell had not shown a violation of a clearly

established constitutional right.

      In support of his claim, Blackwell presented evidence he asserts shows both

discriminatory effect and discriminatory purpose on the part of Officer Strain.

This evidence includes Blackwell’s account of his experience at the POE,

statistical evidence presented by an expert witness, statements provided by other

black truck drivers who said they were discriminated against by MTD officers at

the POE because of their race, and evidence that state and federal narcotics agents

and individuals at the federal public defenders office believed racial profiling was

occurring at the POE.

      The district court denied Officer Strain’s motion for summary judgment.

The court concluded Blackwell came forward with evidence sufficient to create

genuine issues of material fact as to racially discriminatory effect and racially

discriminatory purpose. It also concluded Blackwell’s right not to be subjected to

racially selective law enforcement was clearly established on August 15, 2008.

                                         -4-
Officer Strain appeals, arguing he is entitled to qualified immunity because, under

Blackwell’s version of the facts that have record support, he did not violate

Blackwell’s clearly established constitutional rights.

III.   Standard of Review

       “Because this is an interlocutory appeal from a denial of summary

judgment, our jurisdiction under 28 U.S.C. § 1291 is limited.” Bowling v. Rector,

584 F.3d 956, 963 (10th Cir. 2009). The denial of a summary judgment motion is

generally not an appealable final order under § 1291. Id. “Such a denial is

subject to appeal, however, when the defendants are public officials asserting a

qualified immunity defense and the appealed issue is whether a given set of facts

establishes that defendants violated clearly established law.” Id. (quotation

omitted); see also Johnson v. Jones, 515 U.S. 304, 311 (1995); Mitchell v.

Forsyth, 472 U.S. 511, 528 (1985).

       Thus, this court may consider Officer Strain’s appeal but “only insofar as it

presents neat abstract issues of law.” Bowling, 584 F.3d at 963 (quotation

omitted). Officer Strain “may not appeal the district court’s summary judgment

order insofar as that order determines whether or not the pretrial record sets forth

a genuine issue of fact for trial.” Id. (quotations and alteration omitted).

Furthermore, “it is not our province to determine whether the record supports the

district court’s factual assumptions.” Id. (quotation omitted). “[I]nstead, we




                                         -5-
simply take, as given, the facts that the district court assumed when it denied

summary judgment for a purely legal reason.” Id. (quotations omitted).

      This court reviews the district court’s denial of a summary judgment

motion asserting qualified immunity de novo, applying the same legal standard as

the district court. Id. Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The evidence is

considered in the light most favorable to Blackwell, the non-moving party.

Bowling, 584 F.3d at 964.

      Summary judgment orders denying qualified immunity, however, are

reviewed differently from other summary judgment decisions. Id. When a

defendant asserts a qualified immunity defense, “the burden shifts to the plaintiff,

who must meet a strict two-part test by showing (1) that the defendant violated a

constitutional or statutory right, and (2) that this right was clearly established at

the time of the defendant’s conduct.” Id. (quotations omitted). “We may, at our

discretion, consider the two parts of this test in the sequence we deem best in

light of the circumstances in the particular case at hand.” Id. (quotation omitted).

IV.   Analysis

      A claim of racially selective law enforcement requires the plaintiff to

“demonstrate that the defendant’s actions had a discriminatory effect and were

motivated by a discriminatory purpose.” Marshall v. Columbia Lea Reg’l Hosp.,

                                          -6-
345 F.3d 1157, 1168 (10th Cir. 2003). “The discriminatory purpose need not be

the only purpose, but it must be a motivating factor in the decision.” Id. To

survive Officer Strain’s motion for summary judgment, Blackwell must present

evidence from which a jury could reasonably infer Officer Strain was motivated

by a discriminatory purpose and his actions had a discriminatory effect. Id.

Blackwell, of course, must also show his right to equal protection under the law

was clearly established at the time of Officer Strain’s conduct. This court

concludes that, under Blackwell’s version of the facts that have record support,

Officer Strain did not violate his right to equal protection under the law.

Blackwell failed to present evidence from which a jury could reasonably infer

Officer Strain was motivated by a discriminatory purpose. Thus, Officer Strain is

entitled to qualified immunity.

      A.     Statistical Evidence

             1.     Introduction

      In its order denying summary judgment, the district court first set forth

statistical evidence proffered by Blackwell in support of its conclusion a jury

could reasonably infer Officer Strain was motivated by a discriminatory purpose

and his actions had a discriminatory effect. Statistical evidence can be used to

show both discriminatory effect and discriminatory purpose. Marshall, 345 F.3d

at 1168 (noting that most selective law enforcement claims are “based on

statistical comparisons between the number of black or other minority Americans

                                         -7-
stopped or arrested and their percentage in some measure of the relevant

population”). To be useful, however, a statistical comparison “requires a reliable

measure of the demographics of the relevant population, a means of telling

whether the data represent similarly situated individuals, and a point of

comparison to the actual incidence of crime among different racial or ethnic

segments of the population.” Id. (citations omitted).

      Statistical evidence alone is rarely enough to show discriminatory purpose.

Although the Supreme Court “has accepted statistics as proof of intent to

discriminate in certain limited contexts,” only in “rare cases [has] a statistical

pattern of discriminatory impact demonstrated a constitutional violation.”

McCleskey v. Kemp, 481 U.S. 279, 293 & n.12 (1987); Vill. of Arlington Heights

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (“Sometimes a clear

pattern, unexplainable on grounds other than race, emerges from the effect of the

state action . . . . But such cases are rare.” ). This is because, to prevail on an

equal protection claim, a plaintiff “must prove that the decisionmakers in his case

acted with discriminatory purpose.” McCleskey, 481 U.S. at 292. Examples of

“those rare cases in which a statistical pattern of discriminatory impact

demonstrated a constitutional violation” include Gomillion v. Lightfoot, 364 U.S.

339, 340-41 (1960), and Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

McCleskey, 481 U.S. at 293 n.12. In Gomillion, the Supreme Court held a state

legislature violated the Fifteenth Amendment when it altered a city’s boundaries

                                           -8-
“from a square to an uncouth twenty-eight-sided figure,” thereby excluding 395 of

400 black voters without excluding a single white voter. 364 U.S. at 340-41. The

Court held that “the conclusion would be irresistible, tantamount for all practical

purposes to a mathematical demonstration” that the state acted with a

discriminatory purpose. Id. at 341. In Yick Wo, an ordinance required laundry

operators to obtain a permit, and all but one of the white applicants received

permits while none of the over 200 Chinese applicants received permits. 118 U.S.

at 373-74. The Court determined that the statistical disparity “warrent[ed] and

“require[d] the conclusion” the state acted with a discriminatory purpose. Id.

“Absent a pattern as stark as that in Gomillion or Yick Wo,” however, “impact

alone is not determinative, and the Court must look to other evidence.” Vill. of

Arlington Heights, 429 U.S. at 266 (footnote omitted); see also Chavez v. Ill.

State Police, 251 F.3d 612, 647-48 (7th Cir. 2001). 1




      1
        The Supreme Court has also accepted statistics as the sole evidence of
discriminatory purpose in certain limited contexts, including “as proof of an equal
protection violation in the selection of the jury venire in a particular district” and
“in the form of multiple-regression analysis to prove statutory violations under
Title VII of the Civil Rights Act of 1964.” McCleskey v. Kemp, 481 U.S. 279,
293-94 (1987). There is also some indication the Supreme Court would accept
statistics as the sole evidence of discriminatory purpose in the context of
challenges to legislative redistricting. See Chavez v. Ill. State Police, 251 F.3d
612, 647 (7th Cir. 2001) (citing cases). None of these contexts are implicated
here. See id. at 647-48.

                                         -9-
             2.     Statistical Evidence Proffered by Blackwell

      The district court relied on three statistical data sets for its conclusion a

jury could reasonably infer Officer Strain was motivated by a discriminatory

purpose. The first data set is not relevant and the validity of the second data set

is doubtful as is the reliability of the third. We need not, however, resolve the

question whether the validity or reliability of the latter data sets is a matter we

can review on an interlocutory appeal from a denial of qualified immunity. See

Bowling, 584 F.3d at 963. Even assuming these statistical data sets are valid and

reliable, they do not show a pattern of discrimination as stark as that in Gomillion

or Yick Wo. Thus, standing alone, they are not evidence from which a jury could

reasonably infer Officer Strain was motivated by a discriminatory purpose.

Instead, this statistical evidence must be coupled with other evidence of

discriminatory purpose. As explained more fully below, Blackwell has failed to

proffer any such evidence. Thus, he has failed to meet his burden of showing a

reasonable jury could infer Officer Strain was motivated by a discriminatory

purpose in this case.

      As to the first data set, the district court stated that Blackwell’s expert

witness, James Williams, Ph.D., was prepared to testify that: “law enforcement

activities at the POE produce ‘race[] based differentials in outcomes’”; his “data

tends to show that vehicles operated by Black truckers are subjected to

inspections or searches at a much higher rate than vehicles operated by non-Black

                                         -10-
truckers”; his data “tends to show that when MTD personnel cannot tell the

ethnicity of a driver prior to instigating law enforcement activity, the percentage

of Black truckers subjected to enforcement activity closely corresponds to the

percentage of Black truckers on the road”; there is “a significant disparity

between the percentage of Black truckers reporting delays due to inspections and

searches (51.7%) and the percentage of other truckers reporting delays (28.3%)”;

and “30.6% of the arrests by Officer Strain at the POE are Blacks, even though

Black truckers make up only 14.6% of the truckers passing through the POE.”

Most of this statistical evidence concerns the conduct of MTD personnel at the

POE as a whole, rather than the conduct of Officer Strain individually. As such,

it is not evidence from which a jury could reasonably infer Officer Strain was

motivated by a discriminatory purpose. See United States v. Coleman, No.

11-2173, 2012 WL 1764224, at *1 (10th Cir. May 18, 2012) (unpublished)

(concluding “it would be a gross misuse of statistical data to extrapolate about [a

particular officer’s conduct] merely from aggregate data that covers many other

individuals”); Carpenter v. Boeing Co., 456 F.3d 1183, 1196-97 (10th Cir. 2006)

(stating that to be reliable, statistical data must “relate to the proper population”

and control for key variables).

      Moreover, the statistical evidence that concerns Officer Strain individually

does not demonstrate he was motivated by a discriminatory purpose. The

evidence regarding arrests made by Officer Strain shows that, of those individuals

                                          -11-
Officer Strain stops, detains, and subjects to a heightened inspection level, a high

percentage he ultimately arrests are black, more than double the percentage of

truck drivers passing through the POE who are black. Absent additional

information, however, this evidence proves nothing because there is no reliable

measure of the demographics of the relevant population, no means of telling

whether the data represent similarly situated individuals, and no point of

comparison to the actual incidence of crime among different racial segments of

the population.

      In United States v. Olvis, 97 F.3d 739, 745 (4th Cir. 1996), in support of

their selective prosecution claim, the plaintiffs proffered a study showing that

over 90% of the federal crack cocaine trafficking prosecutions in the area

involved black defendants. The Fourth Circuit noted that the 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.” Id. “Without an appropriate basis for comparison,”

the court concluded, “raw data about the percentage of black crack cocaine

defendants proves nothing. Such statistics could have relevance only if it could

be presumed that crack cocaine violations were committed proportionately by all

races—a presumption the Supreme Court rejected in Armstrong as ‘at war’ with

unchallenged statistics.” Id. (quoting United States v. Armstrong, 517 U.S. 456,




                                         -12-
469-70 (1996)). Thus, the Fourth Circuit concluded the study was not evidence of

discriminatory effect or purpose. Id. 2

      Like in Olvis, the statistical evidence regarding arrests by Officer Strain

lacks an appropriate basis for comparison. For example, there is no statistical

evidence regarding whether a greater percentage of non-blacks passing through

the POE could have been arrested. Indeed, the evidence regarding arrests made

by Officer Strain is only relevant if it can be presumed that arrestable offenses

were committed proportionately by all races—a presumption prohibited by

Armstrong. In sum, the statistical evidence regarding arrests by Officer Strain,

without more, is not evidence from which a jury could reasonably infer Officer

Strain was motivated by a discriminatory purpose.

      The district court also relied on a second set of statistics, one involving the

following comparison of Officer Strain’s arrest data:



      2
        See also United States v. Armstrong, 517 U.S. 456, 470 (1996) (concluding
that a study which “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,” did not constitute “evidence tending to show the
existence of the essential elements of a selective-prosecution claim”) (quotation
omitted)); James v. Davis, 257 F.3d 1173, 1179 (10th Cir. 2001) (“[A] defendant
cannot satisfy the discriminatory effect prong by providing statistical evidence
which simply shows that the challenged government action tends to affect one
particular group. Rather, the proffered statistics must address the critical issue of
whether that particular group was treated differently than a similarly-situated
group.”); Chavez, 251 F.3d at 642-45 (“[W]ithout comparative racial information,
plaintiffs can not prove that they were stopped, detained, or searched, when
similarly situated whites were not.”).

                                          -13-
             At the POE, Officer Strain arrests Blacks at a rate that is twice
      their representation in the population of truckers passing through the
      POE, whereas the percentage of Blacks arrested by Officer Strain as
      the result of patrolling (where, as Dr. Williams hypothesized, it [is]
      more difficult for Officer Strain to confirm the driver’s ethnicity
      prior to initiating law enforcement activity) closely corresponds to
      the percentage of Black truckers in the population of truckers passing
      through the POE.

It is admittedly curious that a higher percentage of the individuals Officer Strain

arrests at the POE are black than the percentage he arrests while on patrol. There

are, however, at least two potential problems with the validity of this statistical

comparison. First, Dr. Williams’s hypothesis that it is more difficult for Officer

Strain to determine the race or ethnicity of a driver while on patrol than at the

POE appears to have been pure conjecture. In his deposition, Dr. Williams

testified he formed this hypothesis after reading about another study which

concluded it is more difficult for officers to determine the race of a driver at night

than during the day. He offered no evidence to support his extension of this study

to the evidence of this particular case. Second, the record indicates the arrest

data, at least with respect to arrests made while on patrol, includes individuals

who are not truck drivers. Thus, it appears we lack a reliable measure of the

demographics of the relevant population, i.e., the percentage of individuals, as

opposed to truck drivers, in the areas Officer Strain patrols who are black. See

Marshall, 345 F.3d at 1168 (stating that a statistical comparison “requires a

reliable measure of the demographics of the relevant population”); Chavez, 251


                                         -14-
F.3d at 642-45 (concluding that without reliable comparison data, plaintiff’s

statistics did not show discriminatory effect); Olvis, 97 F.3d at 745 (“Without an

appropriate basis for comparison, raw data about the percentage of black crack

cocaine defendants proves nothing.”). This comparison of the percentage of black

individuals arrested by Officer Strain as the result of patrolling with the

percentage of black truckers he arrested passing through the POE is inappropriate.

Even assuming its validity, however, this statistical comparison does not show a

stark pattern of discrimination similar to that in Gomillion or Yick Wo. That is,

the statistics are not so compelling that the only explanation for the anomalies

therein is intentional racial discrimination. Thus, standing alone, this statistical

evidence is not evidence from which a jury could reasonably infer Officer Strain

was motivated by a discriminatory purpose.

      Lastly, the district court cited to statistical evidence regarding inspections

conducted by Officer Strain at the POE:

      [O]n the date that Officer Strain encountered [Blackwell], Officer
      Strain inspected seven trucks. Three of the seven truckers (43%),
      well in excess of their representation (14.6%) in the population of
      truckers passing through the POE were Black, and every one of the
      Black truckers was subjected to a Level II inspection, which includes
      a safe loading check. The two truckers who were White were
      subjected to Level III inspections. Two of the truckers were
      Hispanic: one was subjected to a Level III inspection and one was
      subjected to a Level II inspection.

(citations omitted). This statistical evidence, although relevant, is based on seven

inspections performed by Officer Strain on a single day and is, therefore, not

                                         -15-
reliable. See James v. Davis, 257 F.3d 1173, 1180 (10th Cir. 2001) (stating that a

sample size may be “too small to provide reliable statistical results”); Chavez,

251 F.3d at 643 (noting that a sample size must be “sufficiently large to be

reliable”). Even assuming its reliability, however, it does not show a stark pattern

of discrimination like that in Gomillion or Yick Wo, and, therefore, cannot by

itself demonstrate discriminatory purpose. 3

      In sum, the three sets of statistical data proffered by Blackwell, standing

alone, are not evidence from which a jury could reasonably infer Officer Strain

was motivated by a discriminatory purpose. Thus, they must be coupled with

      3
        Contrary to the dissent’s assertions, this evidence is not similar to the
evidence proffered by the plaintiff in Marshall v. Columbia Lea Regional
Hospital, 345 F.3d 1157, 1168-71 (10th Cir. 2003). In Marshall, there was
“evidence that in more than thirty cases, [the officer] falsely charged arrestees
with possession of narcotics, seriously mishandled narcotics evidence,” and “was
accused of planting evidence on arrestees, as well as using evidence to barter for
sexual favors.” Id. at 1162, 1170-71. The plaintiff in Marshall alleged this
evidence established a “pattern of discrimination against blacks and Hispanics,
and a modus operandi similar to that in his case.” Id. at 1170-71. In this case,
Blackwell failed to provide data regarding the racial composition of truckers
passing through the POE on August 15, 2008. This court is not at liberty to
assume the racial composition of truckers passing through the POE on a single
day mirrors the racial composition of truckers passing through the POE over a
period of several months. Without that data, this evidence does not establish a
pattern of discrimination against blacks or a modus operandi similar to that in this
case. In short, this evidence is not similar to the “evidence regarding extensive
alleged misconduct” by the officer in Marshall. Id. at 1170. Moreover, as the
dissent acknowledges, the plaintiff in Marshall also proffered “direct evidence”
of racially discriminatory purpose, which included, inter alia, evidence the officer
repeatedly accused the plaintiff of being on crack with no apparent basis, made
unnecessary note of the plaintiff’s race, and changed his account of the events
dramatically. Id. at 1168, 1170. In contrast, Blackwell proffered no direct
evidence of racially discriminatory purpose in this case.

                                        -16-
other evidence of discriminatory purpose if Blackwell is to meet his burden of

showing a jury could reasonably infer Officer Strain was motivated by a

discriminatory purpose. Because he failed to proffer any other evidence Officer

Strain was motivated by a discriminatory purpose, Blackwell failed to meet his

burden.

      B.    Other Evidence Proffered by Blackwell

      Contrary to Officer Strain’s assertions, there need not be direct evidence of

discriminatory purpose; discriminatory purpose can be shown with purely

circumstantial evidence. Vill. of Arlington Heights, 429 U.S. at 266-68; United

States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006). In this case,

the district court concluded “a reasonable juror could reason as follows based

upon [Blackwell’s] proffered evidence”:

      Officer Strain is known for aggressively interdicting drugs. Safety
      inspections provide Officer Strain with an opportunity to search for
      drugs. In particular, Level I and Level II inspections provide Strain
      with an opportunity to search for illegal drug shipments in the guise
      of a safe cargo check. Notwithstanding his denial of racial profiling,
      Officer Strain has been proceeding on the assumption that Black
      truckers are more likely than White truckers to be involved in
      transporting illegal drugs. Accordingly, Officer Strain selects Black
      truckers as a group for inspections at a disproportionately higher rate
      than their representation in the general population of truckers, and
      the inspections to which he subjects Black truckers are more
      intrusive than the inspections to which White truckers are subjected.




                                       -17-
(quotations and citation omitted). 4 The only one of these statements supported by

the record is that “Officer Strain is known for aggressively interdicting drugs.”

The remaining statements appear to be inferences the district court concluded a

jury could reasonably make based on Blackwell’s proffered evidence, although it

did not indicate what that evidence was. If indeed, based on Blackwell’s

proffered evidence, a jury could reasonably make these inferences, Blackwell has

likely met his burden at the summary judgment stage of demonstrating Officer

Strain was motivated by a discriminatory purpose. Officer Strain argues,

however, that these inferences are not supported by any record evidence

whatsoever, and, therefore, we need not credit them. He argues that because

these factual conclusions entirely lack record support, we are permitted to review

the entire record de novo to determine whether a jury could reasonably make

these inferences based on Blackwell’s proffered evidence. Blackwell argues the

district court’s inferences are supported by the record, but more importantly, that

we lack jurisdiction to review them.

      As a general rule, “it is not our province to determine whether the record

supports the district court’s factual assumptions.” Bowling, 584 F.3d at 963

      4
       The district court also reached the following conclusion: “From the
foregoing proffered evidence, a reasonable juror could conclude that Officer
Strain selects Black truckers for inspections at a disproportionately high rate, and
that when Officer Strain has the discretion to determine the level of an inspection,
he disproportionately subjects Black truckers to Level II inspections, which
include a safe loading check.” Because this factual conclusion is no different in
substance from the factual conclusion quoted, we do not analyze it separately.

                                        -18-
(quotation omitted). “[I]nstead, we simply take, as given, the facts that the

district court assumed when it denied summary judgment for a purely legal

reason.” Id. (quotations omitted); see also Lewis v. Tripp, 604 F.3d 1221, 1225

(10th Cir. 2010) (“[I]f a district court concludes that a reasonable jury could find

certain specified facts in favor of the plaintiff, the Supreme Court has indicated

we usually must take them as true—and do so even if our own de novo review of

the record might suggest otherwise as a matter of law.”). Where, however, “the

‘version of events’ the district court holds a reasonable jury could credit ‘is

blatantly contradicted by the record,’ we may assess the case based on our own de

novo view of which facts a reasonable jury could accept as true.” Lewis, 604 F.3d

at 1225-26 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

      In this case, the inferences made by the district court are wholly devoid of

record support. There is no record evidence, for example, supporting the

inference that Officer Strain has assumed “Black truckers are more likely than

White truckers to be involved in transporting illegal drugs.” Aside from the

statistical evidence proffered by Blackwell regarding inspections Officer Strain

conducted on August 15, 2008, which is insufficient alone to support an inference

of discriminatory purpose, there is no further record evidence supporting the

inference that Officer Strain selects black truckers for inspections at a

disproportionately higher rate than their representation in the general population

of truckers or that the inspections to which he subjects black truckers are more

                                         -19-
intrusive than those to which he subjects white truckers. Because the record is

devoid of any evidence that supports these inferences we need not and do not

credit them. See Scott, 550 U.S. at 380, 381 n.8 (noting that at the summary

judgment stage, we draw “all inferences in favor of the nonmoving party to the

extent supportable by the record” and refusing to adopt a version of facts “so

utterly discredited by the record that no reasonable jury could have believed

[it]”); Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009) (stating

that “we adopt plaintiff’s version of facts, insofar as it is supported by the

record”); Serna v. Colo. Dept. of Corr., 455 F.3d 1146, 1150-51, 1155 (10th Cir.

2006) (reversing a district court’s denial of summary judgment based on qualified

immunity because plaintiff failed to present any evidence to support his

allegations); Blossom v. Yarbrough, 429 F.3d 963, 967 (10th Cir. 2005)

(suggesting a complete lack of evidence supporting a plaintiff’s allegation may

involve “a jurisdictionally permissible abstract question of law that may be

resolved in a qualified immunity appeal”).

      On appeal, Blackwell points to evidence he argues supports an inference

Officer Strain was motivated by a discriminatory purpose. He first asserts his

account of his experience at the POE is such evidence. He alleged Officer Strain

made him wait an inordinately long period of time before conducting the

inspection of his vehicle; accused him of being under the influence of drugs or

alcohol; administered a field sobriety test; told him he had a “problem,” subjected

                                          -20-
him to a subsequent unwarranted breathalyzer test; pressured him to sign the

citation; and otherwise exhibited a disturbingly hostile, aggressive,

unprofessional, and confrontational demeanor for no apparent reason. Contrary to

Blackwell’s assertions, however, this is not evidence from which a jury could

reasonably infer Officer Strain was motivated by a racially discriminatory

purpose. There is no indication Officer Strain behaved the way he did, even in

part, because Blackwell is black. For all we know, Officer Strain behaves in this

same manner toward all of the truckers he interacts with at the POE, regardless of

their race. See Johnson v. Crooks, 326 F.3d 995, 1000 (8th Cir. 2003) (stating

that “the Johnsons have offered no evidence that Crooks does not stop non-

African Americans under similar circumstances,” but instead, “rely on Ms.

Johnson’s personal opinion that she was stopped on account of her race, plus

additional aspects of the encounter that do not directly evidence racial animus”);

Gardenhire v. Shubert, 205 F.3d 303, 320 (6th Cir. 2000) (concluding that

plaintiff’s evidence the officer gave them “condescending glares” and told them

to “get out of town” did not indicate discriminatory purpose because, while the

officer’s “manners may not have conformed to Emily Post standards, there is no

evidence that he was motivated by racial animus”).

      At oral argument, Blackwell’s counsel emphasized that Officer Strain

accused Blackwell of being under the influence of drugs or alcohol, administered

a sobriety test, told Blackwell he had a “problem” after this test was administered,

                                        -21-
and then performed an unwarranted breathalyzer test. The record shows,

however, that Officer Strain asked Blackwell if he had been drinking or doing

drugs, which Blackwell took as an accusation, and conducted the sobriety tests

only after Officer Strain discovered the alcohol in Blackwell’s vehicle. It is

eminently reasonable for Officer Strain to pose these questions and administer

sobriety tests after discovering Blackwell was transporting alcohol in his vehicle

illegally. Nothing in the record suggests Officer Strain posed these questions or

administered the sobriety tests even in part because of Blackwell’s race. In sum,

even viewing Blackwell’s account of his encounter with Officer Strain in the light

most favorable to Blackwell, it is not evidence from which a jury could

reasonably infer Officer Strain was motivated by a racially discriminatory

purpose.

      Blackwell next points to evidence that several other black truck drivers felt

they were discriminated against at the POE because of their race. Many of these

accounts, however, alleged racial discrimination by MTD personnel at the POE as

a whole rather than Officer Strain individually. As such, they are not evidence

from which a jury could reasonable infer Officer Strain was motivated by a

discriminatory purpose. Some of these accounts, however, do involve Officer

Strain. One driver claimed that when he pulled up at the POE window, Strain

said “I remember you,” and told him to pull over. The driver alleged Officer

Strain recognized him because Strain previously and unjustly gave him a speeding

                                        -22-
ticket. The driver stated that he believed racial profiling was occurring at the

POE and that he was profiled. Another trucker alleged that, during the inspection

of his vehicle, he asked why Officer Strain was inspecting the inside of his trailer

and Officer Strain became agitated. He claims Officer Strain then told him to

stand in a certain spot while the trailer was searched and, when he did not move

quickly enough, Officer Strain reached for his sidearm. He claimed Officer Strain

then searched the cab, and again ordered him to stand in a certain spot. When he

objected to the cab search, Officer Strain again reached for his sidearm. The

driver asserted he has been driving for decades and never experienced anything

like this. He claimed Officer Strain was not interested in safety, as he did not

check for a secure load or safety equipment. He claimed he never had a Level II

inspection last so long, felt violated by the search, and has since avoided the POE.

Like Blackwell’s account of his encounter with Officer Strain, nothing in these

accounts suggests Officer Strain behaved toward these truckers as he did because

they are black. See Gardenhire, 205 F.3d at 320. Moreover, there is no evidence

that non-black truck drivers who were stopped, detained, and subjected to

heightened inspections by Officer Strain were treated any differently from these

truckers. See Armstrong, 517 U.S. at 470; Johnson, 326 F.3d at 1000; James, 257

F.3d at 1179. Like Blackwell, these truck drivers’ allegations of racial

discrimination are based on their personal opinions they were stopped, detained,

subjected to a heightened inspection level, or treated badly by Officer Strain

                                         -23-
because they are black. This is not evidence from which a jury could reasonably

infer Officer Strain was motivated by a discriminatory purpose. See Johnson, 326

F.3d at 1000.

      Finally, Blackwell points to evidence that state and federal narcotics agents

and federal public defenders who handle cases originating from the POE noticed

that persons arrested for possession with intent to distribute drugs at the POE

have been almost exclusively black. Moreover, he claims, a Drug Enforcement

Administration agent notified a POE supervisor that racial profiling was occurring

at the POE and other narcotics agents commented to an MTD supervisor on the

number of blacks arrested at the POE. Nevertheless, Blackwell asserts, the MTD

failed to investigate whether racial profiling was occurring at the POE. As this

court has already made clear, however, evidence concerning the POE as a whole,

rather than Officer Strain individually, is not evidence from which a jury could

reasonably infer Officer Strain was motivated by a discriminatory purpose. 5

      In sum, while Blackwell presented a generous amount of evidence

regarding alleged discrimination at the POE as a whole, the evidence he presented

regarding alleged discrimination by Officer Strain as an individual is entirely

lacking. Other than the statistical evidence, which is insufficient standing alone

to demonstrate discriminatory purpose, there is simply no evidence in the record


      5
       We also note that much of this particular evidence appears to be hearsay,
and, therefore, is likely inadmissible. Fed. R. Evid. 801-802.

                                        -24-
from which a jury could reasonably infer Officer Strain was motivated by a

discriminatory purpose when he stopped, detained, subjected to a heightened

inspection level, or issued a citation to Blackwell on August 15, 2008.

V.    Conclusion

      Because Blackwell failed to present evidence from which a jury could

reasonably infer Officer Strain was motivated by a discriminatory purpose Officer

Strain is entitled to qualified immunity. We need not decide whether Blackwell

presented evidence from which a jury could reasonably infer Officer Strain’s

actions had a discriminatory effect. This court reverses and remands to the

district court with instructions to grant summary judgment to Officer Strain.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




                                        -25-
No. 11-2078, Blackwell v. Strain
Holloway, Circuit Judge, dissenting:

      Because I am persuaded that the district judge decided the issues correctly

and supported her decision amply in her Memorandum Opinion and Order, I

would affirm her order denying summary judgment on grounds of qualified

immunity to Defendant-Appellant Strain.

                                          I

      The majority quotes the correct standards for our review of this

interlocutory appeal but, in my view, fails to adhere to those standards. The

majority notes that “it is not our province to determine whether the record

supports the district court’s factual assumptions” and that instead “we simply

take, as given, the facts that the district court assumed when it denied summary

judgment for a purely legal reason.” Maj. op. at 5-6 (quoting Bowling v. Rector,

584 F.3d 956, 963 (10th Cir. 2009) (emphasis added)). The majority is also

correct that where the district court has found that a reasonable jury could make

certain findings based on the plaintiff’s evidence, “we usually must take them as

true – and do so even if our own de novo review of the record might suggest

otherwise as a matter of law.” Maj. op. at 18 (quoting Lewis v. Tripp, 604 F.3d

1221, 1225 (10th Cir. 2010)).

      But the majority proceeds to undertake exactly the examination of the

district court’s factual assumptions that it purports to eschew and that binding

precedent forbids. Noting that our review is limited to “neat [,] abstract issues of
law,” as Johnson v. Jones requires and as we have since recognized numerous

times, the majority makes no attempt to identify such an issue in this case, and

understandably so because there is no such issue.

      The only exception to the principle that we simply accept the district

court’s findings of fact applies only in that rare case in which the district court’s

view of the facts is “blatantly contradicted by the record.” Id. (quoting Lewis,

which in turn was quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). But

nowhere in the majority’s opinion is any finding or factual assumption shown to

be “blatantly contradicted by the record.” Instead, the majority proceeds to do

just what it said we should not, scouring the record de novo to determine whether

the record supports the district court’s factual findings. It may be helpful to

remember the reasons underlying the principle that we take the district court’s

findings and assumptions of fact as true “even if our own de novo review of the

record might suggest otherwise as a matter of law.”

      The reasons were set out in a unanimous opinion from the Supreme Court,

Johnson v. Jones, 515 U.S. 304 (1995). There the Court noted that

      the issue here at stake – the existence, or nonexistence, of a triable
      issue of fact – is the kind of issue that trial judges, not appellate
      judges, confront almost daily. Institutionally speaking, appellate
      judges enjoy no comparative expertise in such matters. And, to that
      extent, interlocutory appeals are less likely to bring important
      error-correcting benefits here than where purely legal matters are at
      issue . . . .




                                          -2-
      For another thing, questions about whether or not a record
      demonstrates a “genuine” issue of fact for trial, if appealable, can
      consume inordinate amounts of appellate time. Many constitutional
      tort cases, unlike the simple “we didn't do it” case before us, involve
      factual controversies about, for example, intent – controversies that,
      before trial, may seem nebulous.

Id. at 316 (internal citations omitted).

      The majority, however, in direct contradiction of the standard of review it

expressly recognizes, proceeds to reverse the district court in this case “[b]ecause

the record is devoid of any evidence that supports” inferences drawn by the

district court. Maj. op. at 19. As I will show below, the majority errs in its

reading of the record, which does include evidence to support the district court’s

inferences. But the larger point is that undertaking this review of the record is

“not our province.” Bowling, 584 F.3d at 963.

      The majority cites Scott v. Harris, 550 U.S. 372, as authority for its stark

departure from over fifteen years of decisions in the wake of Johnson v. Jones.

Scott v. Harris, however, stands only for the proposition, as already quoted, that

the reviewing court may, in unusual circumstances such as those present in that

case, determine if the district court’s view of the evidence is “blatantly

contradicted by the record.” The majority also quotes Scott’s unremarkable

statement that at the summary judgment stage, courts “draw all inferences in

favor of the nonmoving party to the extent supportable by the record . . . .” Maj.

op. at 19. But Scott simply does not overrule or abrogate the holding of Johnson


                                           -3-
v. Jones that it is for the district court to make the determination of what is

supported by the record.

      We recognized this when we said, after Scott, that we “consider only

whether the district court erred in assessing the legal significance of the conduct

that the district court deemed sufficiently supported for purposes of summary

judgment” and that “[i]t is not the job of the appellate court to determine whether

the record supports the district court’s factual assumptions.” Dixon v.

Kirkpatrick, 553 F.3d 1294, 1301 (10th Cir. 2009) (internal citation omitted). As

already noted, we said the same thing in Rector, and the majority actually quotes

this principle before proceeding in contravention of it.

      Similarly, we have described the holding of Scott as applying only “in the

most limited of circumstances.” Mascorro v. Billings, 656 F.3d 1198, 1202, n.1

(10th Cir. 2011). We noted that the exceptional circumstances in Scott involved

the existence in the record of a videotape that “clearly contradicted” the

plaintiff’s version of events. We went on to say that we “will not hear an appeal

when the question is the sufficiency of the evidence or the correctness of the

district court’s findings with respect to a genuine issue of material fact.” Id. at

1204, n.6.

      In addition to relying on the inapposite holding of Scott v. Harris, the

majority also cites three of our cases as purportedly supporting its marked

departure from precedent and making it our province to determine whether the

                                          -4-
record supports the district court’s factual assumptions. The third of these,

Blossom v. Yarbrough, 429 F.3d 963, 967 (10th Cir. 2005), as the majority notes,

merely suggests that there might be some cases where a reviewing court could

depart from the usual principle. Thus, it is no authority for ignoring the well

established limits of our review in interlocutory appeals. The majority also cites

Serna v. Colorado Dept. of Corrections, 455 F.3d 1146, 1150-51 (10th Cir. 2009),

and Thomson v. Salt Lake County, 584 F.3d 1304, 1312 (10th Cir. 2009). To the

extent that Serna and Thomson do hold that we can review the evidence de novo

to see if the district court’s findings are supported by the record, I would

recognize that those cases are contrary to Johnson v. Jones and numerous cases

from our court and so not binding on us here.

      In sum, this interlocutory appeal involves no neat, abstract issue of law,

and the majority does not even attempt to identify such an issue. The district

court found that the evidence submitted on summary judgment was sufficient for

a reasonable jury to infer that Defendant violated Plaintiff’s constitutional rights.

We have no jurisdiction to review that holding. The majority’s detailed and

thorough (but flawed) examination of the record is in contravention of the well

established limits of our jurisdiction here. I must dissent from this approach.

                                          II

      Even if our limited jurisdiction in this interlocutory appeal were to include

the de novo review of the evidence underlying the district court’s determinations

                                          -5-
– which it most certainly does not, as I have explained – I would still be unable to

agree with the majority’s holding because the majority makes another error in its

evidentiary review. The majority (at pp. 15-16) rejects Plaintiff’s evidence that

Defendant Strain subjected other African-American truck drivers to intrusive

inspections on the same day that he was detained at the Port of Entry, deeming

this evidence to be statistical evidence that is too weak to be reliable because of a

small sample size. That legal principle, however, does not apply to this evidence,

which is not merely statistical evidence.

      When faced with a claim of discriminatory enforcement practices by an

individual officer, we have described similar evidence as seeking to prove the

plaintiff’s case “not by means of statistical inference but by direct evidence of

[the officer’s] behavior during the events in question, . . . and [the officer’s]

alleged record of racially selective stops and arrests in drug cases under similar

circumstances . . . .” Marshall v. Columbia Lea Regional Hospital, 345 F.3d

1157, 1168 (10th Cir. 2003) (emphasis added). 1 The majority’s rejection of Mr.

Blackwell’s evidence is contrary to the holding of that case.

                                      Conclusion

      Because binding precedent does not permit us to rule on the sufficiency of

the evidence supporting the district court’s factual findings and the inferences

      1
       I note that Defendant does not assert that the evidence of his own actions
should have been disregarded as statistical evidence based on a sample of
insufficient size. See Appellant’s Reply Brief at 16-17.

                                            -6-
reasonably drawn therefrom, I dissent from the majority’s view of the boundaries

of our jurisdiction. I am further convinced that the majority errs in disregarding

evidence of Defendant’s behavior with other African-American drivers at the

relevant time.

      Accordingly, I respectfully dissent.




                                         -7-
