                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 02-1915
                                     ___________

Linda Johnson; Reginald Johnson,          *
                                          *
      Plaintiffs - Appellees,             *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Nebraska.
Aaron Crooks,                             *
                                          *
      Defendant - Appellant.              *
                                     ___________

                                Submitted: November 7, 2002

                                    Filed: April 23, 2003
                                     ___________

Before WOLLMAN, LAY, and LOKEN,* Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

       This is an action by Linda and Reginald Johnson against Aaron Crooks, a
deputy sheriff for Gage County, Nebraska. The Johnsons allege that Crooks stopped
Ms. Johnson’s car, not for a traffic violation, but because she is an African-American.
They assert federal Fourth Amendment, equal protection, and due process claims and
pendent claims under Nebraska state law. Crooks appeals the denial of his motion
for partial summary judgment dismissing the federal claims on the basis of qualified

      *
       The Honorable James B. Loken became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2003.
immunity. In an interlocutory appeal challenging the denial of qualified immunity,
we consider whether “[Crooks’s] conduct which the District Court deemed
sufficiently supported for purposes of summary judgment” violated clearly
established statutory or constitutional standards of which a reasonable person would
have known. Behrens v. Pelletier, 516 U.S. 299, 313 (1996); see Tlamka v. Serrell,
244 F.3d 628, 632 (8th Cir. 2001). Viewing the summary judgment record in the light
most favorable to the Johnsons, who are the non-moving parties, we conclude that the
federal claims must be dismissed and therefore reverse.

                                  I. Background.

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

       When Crooks asked her for identification, Ms. Johnson gave him her military
identification card because she could not quickly find her driver’s license. The card
listed Ms. Johnson as a dependent civilian whose “sponsor” was Reginald Johnson.

                                         -2-
The following day, Crooks called Fort Riley to report the circumstances of the traffic
stop “to the proper military supervisory personnel.” Crooks was told there was no
one in the military at Fort Riley named Linda Johnson. He was referred to the Judge
Advocate General’s Office, where he spoke, perhaps coincidentally, to Reginald
Johnson. Mr. Johnson explained that Ms. Johnson was his wife and a military
dependent, not a member of the military. When Crooks complained that Ms. Johnson
had accused him of being a racist, Mr. Johnson stated that he believed Ms. Johnson’s
version of the traffic stop. Crooks asked to speak to Mr. Johnson’s commanding
officer about Ms. Johnson’s warning citation. Mr. Johnson told Crooks how to
contact his supervisor, the Deputy Inspector General, but Crooks did not do so.

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

                       II. The Fourth Amendment Claim.

       The amended complaint alleges that Crooks violated the Fourth and Fourteenth
Amendments by stopping and detaining Ms. Johnson for an alleged traffic violation.
It is well-settled that “stopping an automobile and detaining its occupants constitute
a ‘seizure’ within the meaning of [the Fourth and Fourteenth] Amendments, even
though the purpose of the stop is limited and the resulting detention quite brief.”
Delaware v. Prouse, 440 U.S. 648, 653 (1979). “An automobile stop is thus subject
to the constitutional imperative that it not be ‘unreasonable’ under the
circumstances.” Whren v. United States, 517 U.S. 806, 810 (1996). In determining

                                         -3-
the reasonableness of an automobile search or seizure, the Supreme Court recognizes
that automobiles are inherently mobile, motorists have a lessened expectation of
privacy when traveling on the public highways, and “[a]utomobiles, unlike homes,
are subjected to pervasive and continuing governmental regulation and controls.”
South Dakota v. Opperman, 428 U.S. 364, 368 (1976); see Cardwell v. Lewis, 417
U.S. 583, 589-91 (1974).

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

       On appeal, Crooks virtually concedes, and we accept, the district court’s
determination that Ms. Johnson’s affidavit asserting she did not commit a traffic
violation creates a genuine fact dispute concerning whether Crooks had probable
cause to stop and detain her for that reason. But the district court’s analysis
overlooked the investigatory aspect of traffic stops in general and of this stop in
particular. Because a brief traffic stop is a relatively minor intrusion on the motorist’s
privacy interests, its Fourth Amendment reasonableness is judged by the standard that
applies to investigatory stops -- whether “the officer’s action is supported by
reasonable suspicion to believe that criminal activity ‘may be afoot.’” United States
v. Arvizu, 534 U.S. 266, 273 (2002) (quotation omitted); see United States v. Jones,
269 F.3d 919, 924 (8th Cir. 2001). An officer with reasonable suspicion may stop the

                                           -4-
automobile and may question the driver “to determine his identity and to try to obtain
information confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty,
468 U.S. 420, 439 (1984).

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

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

                                          -5-
             4. . . . I then observed that the car immediately ahead of me on
      several occasions crossed the centerline slightly into the oncoming
      traffic lane.

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

                                  *    *    *    *   *

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

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



                                           -6-
                         III. The Equal Protection Claim.

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

        Here, the Johnsons have offered no evidence that Crooks does not stop non-
African Americans under similar circumstances. We will assume that a prima facie
equal protection claim may also be proved by direct evidence of racial discrimination
in this type of case. But the Johnsons presented no such evidence. They rely on Ms.
Johnson’s personal opinion that she was stopped on account of her race, plus
additional aspects of the encounter that do not directly evidence racial animus -- that
Crooks was in a position to see Ms. Johnson’s race when he pulled out into traffic,
that Crooks closely followed Ms. Johnson for eleven miles before pulling her over,
and that Crooks called Fort Riley the next day to bring the traffic stop to the attention
of either Ms. Johnson’s or Mr. Johnson’s commanding officer. As the non-moving
parties, the Johnsons must “identify affirmative evidence from which a jury could find

                                          -7-
that the plaintiff has carried his or her burden of proving the pertinent motive.”
Crawford-El v. Britton, 523 U.S. 574, 600 (1998). They failed to do so. As the
Seventh Circuit stated in Ford, “We do not think . . . that the combination of an
arbitrary stop . . . with a difference in race between the person stopped and the officer
establishes a prima facie case of racial discrimination.” 90 F.3d at 248-49. The
district court erred in not dismissing the equal protection claim.

                           IV. The Due Process Claims.

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

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




                                          -8-
LAY, Circuit Judge, dissenting.

      I respectfully dissent.

       I think the majority’s opinion will cause a great deal of confusion to all district
courts as to the proper summary judgment standard in civil cases. The standard as
instructed by the Supreme Court is that district courts must view the evidence in the
light most favorable to the nonmoving party. In the present case, the majority recites
disputed issues of fact in favor of the moving party and does not give any credence
to the nonmoving party’s claims. This approach is contrary to every rule governing
summary judgment and leads the majority to improperly grant summary judgment for
the Defendant, Aaron Crooks. From reading the district court’s opinion, it is obvious
that the district court applied the correct summary judgment standard. It fully
recognized there existed genuine issues of disputed fact; it viewed the evidence in the
light most favorable to the nonmoving party; and it provided the nonmoving party all
favorable inferences.

       A review of the facts shows that Ms. Johnson has made a prima facie case. She
is a member of a minority race who drove her car on the public highway and asserted
that she did not violate any traffic laws. Sheriff Crooks followed her vehicle closely
for eleven miles before stopping her. At that time, Crooks accused her of crossing
the center line, an accusation which she vehemently denied. Ms. Johnson said she
was well aware that Crooks was following her closely so she was careful to obey all
traffic laws. Crooks then asked for her identification, and she presented her military
identification because she could not immediately find her driver’s license. The
military identification showed on the back of it that she was a civilian, which Crooks
ignored. He gave her a written warning and then called Fort Riley to report the
incident to her superior officer.




                                           -9-
       Based on these facts, there is no question that Ms. Johnson has made a prima
facie case of an unauthorized stop in violation of the Fourth Amendment. Further,
she has set forth a prima facie case of racial harassment, which provides a genuine
issue for trial as to whether there has been a denial of the Equal Protection Clause.
I have set forth the district court’s opinion in its entirety at the end of my dissent
(Exhibit A) because it provides the proper summary judgment analysis and details the
factual disputes of the case.

       The primary problem with the majority’s Fourth Amendment analysis is that
it mischaracterizes the facts, making the case appear more simple than it actually is.
The majority recites that when an officer makes a mere investigatory stop, there is no
unreasonable intrusion “upon the privacy and liberty interests protected by the Fourth
Amendment.” Maj. Op. at 5. However, the facts in this case do not allow for such
a conclusion. Additional facts, which are not analyzed by the majority, raise doubts
about the constitutionality of the stop.

       The majority’s fact section states that Crooks “maneuvered his patrol car
through traffic until it was directly behind Mr. Johnson’s vehicle” and then followed
her closely for approximately eleven miles. Maj. Op. at 4. Crooks alleges that he
followed Ms. Johnson’s vehicle because she crossed the center line of the highway.
Why he did not immediately effect a stop rather than following her for eleven miles
makes Crooks’s credibility highly dubious. Further, if we take Ms. Johnson’s
statement that she did not cross the center line as true, Crooks’s stop was arbitrary
and capricious. The majority, however, simply credits Crooks’s version of the facts
even though his stated reasons for stopping Ms. Johnson remain in dispute.

      Instead of addressing the relevant facts, the opinion mischaracterizes the case
and concludes “it was objectively reasonable for Crooks to stop Ms. Johnson’s car to
determine if she was competent to continue her travels.” Maj. Op. at 6. Such a
conclusion assumes that Ms. Johnson swerved her car. In essence, the majority says

                                        -10-
that it believes Crooks is telling the truth and Ms. Johnson is not. The opinion further
mischaracterizes the case by saying that “Crooks let Ms. Johnson go with a warning
rather than a citation, ending the investigatory stop.” Maj. Op. at 6. Yet the facts
show that Crooks did not simply let Ms. Johnson go. He called Fort Riley and
reported the incident. Such behavior does not comport with standard police
procedure and extended the stop to more than a “relatively minor intrusion on the
motorist’s privacy interest.” Maj. Op. at 4. A fair inference remains that he called
Fort Riley to racially harass Ms. Johnson. This inference is made stronger because
Ms. Johnson denied violating any traffic laws.

       Much of these same concerns apply to the majority’s Equal Protection analysis.
The majority states that “‘We do not think . . . that the combination of an arbitrary
stop . . . with a difference in race between the person stopped and the officer
establishes a prima facie case of racial discrimination.’” Maj. Op. at 8 (quoting Ford
v. Wilson, 90 F.3d 245, 248-49 (7th Cir. 1996)). Once again, this case is not as
simple as the majority suggests. The facts show much more than a difference in race
and an arbitrary stop. Here, Crooks called the military and reported the incident. He
also followed Ms. Johnson for eleven miles prior to making the stop. These facts,
when credited as true, at the very least, should allow the case to survive summary
judgment.

       The majority faults the district court for failing to distinguish between
investigatory stops and individual traffic stops. The majority claims that Ms.
Johnson’s stop was investigatory and that Crooks had a reasonable suspicion to
believe that criminal activity was afoot because he “observed Ms. Johnson’s car
crossing the center line more than once on a two-lane rural highway . . . .” Maj. Op.
at 5. The majority’s analysis, however, is persuasive only if we assume that Ms.
Johnson crossed the center line. Since the parties dispute this key fact, we cannot say
as a matter of law that Crooks had a reasonable suspicion. The district court correctly
denied summary judgment because it could not resolve this disputed fact at the

                                         -11-
summary judgment stage. While it is true the district court did not make a distinction
between an investigatory stop and an individual stop, the district court did not need
to make such a distinction to reach the correct result. As long as the parties dispute
whether Ms. Johnson crossed the center line, the issue of whether Crooks had a
reasonable suspicion remains.

       In conclusion, the majority does not apply the correct standard for summary
judgment. The Supreme Court instructs this court in a summary judgment proceeding
to view the evidence in the light most favorable to Ms. Johnson, the nonmoving party.
The majority bases its analysis upon material facts which are in dispute and views the
evidence in the light most favorable to Crooks, the moving party. By accepting
Crooks’s statements over Ms. Johnson’s assertions, the majority has turned the
summary judgment standard on its head and has reached an incorrect result.

      I respectfully dissent.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -12-
                                       “Exhibit A”

                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEBRASKA



LINDA JOHNSON and                  )       4:01CV230
REGINAL JOHNSON,                   )
                                   )
             Plaintiffs,           )       MEMORANDUM AND ORDER ON
                                   )       DEFENDANT’S MOTION FOR
vs.                                )       SUMMARY JUDGMENT
                                   )
AARON CROOKS,                      )
                                   )
             Defendant.            )

       This case is now before me on the Defendant’s Motion for Summary Judgment,
filing 27. The plaintiffs’ Amended Complaint, filing 17, alleges eight causes of
action arising from an April 18, 2000, traffic stop conducted by the defendant. In
moving for summary judgment, the defendant argues that the doctrine of qualified
immunity shields him from the plaintiffs’ first four claims. Thus, the defendant
continues, the plaintiffs’ latter four claims must also fail, as such claims are brought
pursuant to the court’s supplemental jurisdiction. See 28 U.S.C. § 1367. After
reviewing the submissions of the parties, I find that the defendant’s motion will be
denied.

                                    I. Background

       During the morning hours of April 18, 2000, the plaintiff Linda Johnson
(hereinafter L. Johnson) was traveling from Omaha, Nebraska, to Fort Riley, Kansas,
in her 1996 Lexus. Around 9:15 a.m., she passed through Beatrice, Nebraska, as she
drove south on Highway 77. L. Johnson contends that at the south end of Beatrice,
she noticed a patrol car attempting to turn onto the highway from a parking lot. The
patrol car, driven by the defendant Crooks, was facing the driver’s side of her vehicle.
According to L. Johnson, Crooks pulled onto the highway and “maneuvered his way

Exhibit A
through traffic” to position himself behind her. Aff. of Linda Johnson ¶ 2, filing 40
at Ex. 1. Crooks then allegedly followed L. Johnson “at a very close distance” for
approximately eleven miles. Id. ¶ 4. L. Johnson states that during this time, she
“took extra precaution to ensure that [she] would do nothing wrong or commit any
traffic violation so as not to give him any reason to stop [her].” Id. ¶ 3.
Nevertheless, Crooks activated his light to initiate a traffic stop.

       L. Johnson asserts that after Crooks approached her car and asked her several
questions, she inquired as to why he pulled her over. Crooks responded that she was
stopped for ‘“going left of center.”’ Id. ¶ 5. L. Johnson replied that she believed she
had been targeted “‘because of the color of [her] skin1 and the type of car [she was]
driving.’” Id. L. Johnson then began looking for her driver’s license and car
registration. She could not find her license, but she did locate her dependent military
identification card when she reached into the glove compartment for the registration.
This front of this card includes L. Johnson’s picture, signature, and social security
number, as well as he name, social security number, rank, and pay grade of her
“sponsor.” See filing 40 at Ex. 1-A, p.1. The back of the car indicates that L.
Johnson is a civilian. See id. at Ex. 1-A, p.2.

       L. Johnson gave the military identification card to Crooks, who said he could
use the card to obtain the information he needed. L. Johnson asked if she could look
in the trunk for her license. Crooks responded that she could and then went back to
his patrol car. After her unsuccessful search of her trunk, L. Johnson reentered her
vehicle and found her license on the floor of the passenger’s side. According to L.
Johnson, she gave the license to Crooks, who indicated he did not need it. She went
back to her vehicle and waited for Crooks, who later returned to her vehicle and
issued her a written warning. L. Johnson again protested that she had not in fact
“gone left of center,” and again advised Crooks that she believed she had been
stopped because of her race and the type of car she was driving. Aff. of Linda
Johnson ¶ 7, filing 40 at Ex. 1. She then pulled back onto Highway 77 and
continued south.

      According to L. Johnson, she was “courteous and cooperative” with Crooks
throughout their encounter. Id. ¶ 8. Both L. Johnson and her husband, plaintiff
Reginald C. Johnson (hereinafter R. Johnson), also indicate that as of the date of the

      1
          Both plaintiffs are “Afro-American United States citizen[s].” Filing 17 ¶ 2.

Exhibit A
stop, the windows of their 1996 Lexus were not tinted. See id. ¶ 10; Aff. of Reginald
C. Johnson ¶ 5, filing 40 at Ex. 2.

       The defendant Crooks recounts a different version of events relating to the
April 18, 2000, stop. According to Crooks, he had to wait for a number of cars as he
attempted to turn onto Highway 77. He asserts that after the cars passed, he pulled
onto the highway “some distance behind” the last car. Aff. in Supp. of Def.’s Mot.
for Summ. J. [hereinafter Aff. of Aaron Crooks] ¶ 3, filing 28 at Ex. 1. He states
that although he initially did not notice anything in particular about the vehicles in
front of him, he later observed the vehicle immediately in front of him cross the
center line into the oncoming traffic lane on “several occasions.” Id. ¶ 4. Concerned
about the driver’s condition, he activated his lights to initiate a stop.

       According to Crooks, the windows of the vehicle were tinted. Thus, he asserts
that “[i]t was not until I was near the passenger’s door that I saw that the driver was
an Afro-American female.” Id. ¶ 9. Crooks states that after he greeted L. Johnson,
she interrupted him and accused him of stopping her because “‘of the type of car she
was driving and because of the color of her skin.’” Id. ¶ 10. She appeared “extremely
upset and very unfriendly.” Id. “[S]omewhat offended and disappointed with her
response,” Crooks advised L. Johnson that she had been stopped for driving “left of
center several times.” Id. Crooks states that he requested her driver’s license and
registration, but L. Johnson was unable to locate the former. Thus, according to
Crooks, L. Johnson then advised him that she was in the military and had a military
identification card. Crooks responded that he could use the military identification to
obtain the necessary information and that she no longer needed to look for the license.
L. Johnson, however, “continued to insist upon finding the license” so she
“‘wouldn’t get into any more trouble.’” Id. ¶ 15. Crooks states that he told her she
was not necessarily in trouble and that he was primarily concerned about her safety.
He nevertheless allowed her to continue her search for the license in the trunk as he
went back to his patrol car.

       Crooks asserts that while he was calling in her information, L. Johnson found
her license and approached the patrol car. Crooks advised her to return to her car and
wait for him. After completing the information check, Crooks went back to the
vehicle where he found L. Johnson talking on her cell phone. When she finished her
conversation, Crooks handed her a written warning and told her there was a truck stop
ahead if she was tired. L. Johnson again commented that she believed she had been

Exhibit A
stopped because of her race and the type of car she was driving, and Crooks again
assured her “that such was not the case.” Id. ¶ 21. She also inquired whether Crooks
would continue to follower her, and Crooks responded that he would be going in the
same direction as she, but not for the purpose of following her. L. Johnson then
pulled back onto Highway 77.

       Crooks states that, based on his military background, “it is my belief and
understanding of military procedure that any contact or stop by a law enforcement
officer should result in the information of the stop being forwarded to the superior
officer of the individual.” Id. ¶ 24. Crooks felt that in this case, such follow-up was
“especially necessary . . . since Ms. Johnson had made accusations of inappropriate
conduct on [his] part, which were absolutely false.” Id. Thus, the next day, Crooks
contacted Fort Riley in an alleged attempt to reach L. Johnson’s First Sergeant.
Crooks was told that there was no military person by the name of Linda Johnson at
the base and was advised to contact the Judge Advocate General’s Office for further
information. According to Crooks, he did so by telephone, “and coincidentally the
phone was answered by a man who identified himself as Mr. Reginald Johnson.” Id.
¶ 25. During their conversation, Crooks tried to explain what had occurred regarding
the traffic stop. R. Johnson responded that L. Johnson was his wife, that she had
already told him what happened, and that he believed his wife. Crooks then advised
R. Johnson that he believed the matter should be reported to L. Johnson’s First
Sergeant or a superior officer. R. Johnson indicated that his wife was not in the
military and then transferred Crooks to another individual, who also advised Crooks
that L. Johnson was not in the military. Crooks concludes as follows:

       After having done what I believed was appropriate regarding the stop
       and with the information given to me by Ms. Johnson regarding military
       affiliation, and after finding out that military affiliation was not true, I
       took no further course of action to inform anyone in the military that Ms.
       Johnson had made a false claim of military affiliation.

Id. ¶ 26.

       R. Johnson, however, recalls a somewhat different telephone conversation
with Crooks. An Assistant Inspector General at Fort Riley, R. Johnson states that on
the morning of April 19, 2000, Crooks contacted the Inspector General’s Office, and
the call was transferred to R. Johnson by a secretary. R. Johnson asserts that when

Exhibit A
he answered the telephone, “Crooks made it clear . . . that he had called for me.” Aff.
of Reginald C. Johnson ¶ 4, filing 40 at Ex. 2. In describing the traffic stop, Crooks
“specifically suggested that [L. Johnson] had acted inappropriately.” Id. According
to R. Johnson, Crooks “stated he wanted to talk to [R. Johnson’s] superior officer
about the warning citation,” and “specifically stated he knew [L. Johnson] was a
military dependent and [R. Johnson], as her spouse, was responsible for her actions.”
Id. After advising Crooks that he believed his wife’s version of events, R. Johnson
gave Crooks the phone number of a First Sergeant and the Deputy Inspector General.

                                II. Standard of Review

       A motion for summary judgment will be granted when “there is no genuine
issue as to any material fact and . . . the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c). A “material” fact is one “that might affect
the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A “genuine” issue of material fact exists when there
is sufficient evidence favoring the party opposing the motion for a jury to return a
verdict for that party. Id. In determining whether a genuine issue of material fact
exists, the evidence is to be taken in the light most favorable to the nonmoving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 158-59 (1970). If the moving party
meets the initial burden of establishing the nonexistence of a genuine issue, the
burden then shifts to the opposing party to produce evidence of the existence of a
genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
opposing party “may not rest upon mere allegation or denials of his pleading, but
must set forth specific facts showing that there is a genuine issue for trial,” and “must
present affirmative evidence in order to defeat a properly supported motion for
summary judgment.” Anderson, 477 U.S. at 256, 257 (citing FED. R. CIV. P. 56(e)).

                                     III. Analysis

       The plaintiffs filed their Amended Complaint on August 13, 2001, alleging the
following eight causes of action: (1) a Fourteenth Amendment due process violation;
(2) a Fourth Amendment violation; (3) a Fourteenth Amendment equal protection
violation; (4) a second, separate Fourteenth Amendment due process violation; (5)
a violation of NEB. REV. STAT § 20-148 and NEB. CONST. art. I, §§ 3, 7; (6) false
arrest and false imprisonment; (7) a violation of NEB. REV. STAT. § 28-926; and (8)
a violation of NEB. REV. STAT. § 20-201 et seq. and “the common law of the state

Exhibit A
of Nebraska.” Filing 17 at 4-8. Claims one through four are based on 42 U.S.C.
§ 1983,2 while claims five through eight are brought pursuant to the court’s
supplemental jurisdiction. In his motion for summary judgment, the defendant
Crooks contends that the first four causes of action “are barred by the [d]octrine of
[q]ualified [i]mmunity.” Br. in Supp. of Def. Aaron Crooks’ Mot. for Summ. J.
[hereinafter Defendant’s Brief] at 7. Without these claims, Crooks concludes, the
plaintiffs’ latter four causes of action must also fail for lack of jurisdiction.

       The doctrine of qualified immunity “shields government officials from suit
unless their conduct violates a clearly established constitutional or statutory right of
which a reasonable person would have known.” Burnham v. Ianni, 119 F.3d 668,
673 (8th Cir. 1997) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Yowell
v. Combs, 89 F.3d 542, 544 (8th Cir. 1996)). A claim of qualified immunity triggers
a two-part inquiry: “‘whether the plaintiff has alleged the deprivation of an actual
constitutional right at all, and if so, . . . whether that right was clearly established at
the time of the alleged violation.’” Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.
2001) (quoting Wilson v. Layne, 526 U.S. 603, 609 (1999); Conn v. Gabbert, 526
U.S. 286, 290 (1990); citing Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000)).
When the qualified immunity defense is raised during the summary judgment stage,
“the official’s conduct must be viewed through the prism of Rule 56 - that is, [the
court] must take as true those facts asserted by [the] plaintiff that are properly
supported in the record.” Id. (citations omitted). Thus, “‘if there is a genuine dispute
concerning predicate facts material to the qualified immunity issue, there can be no
summary judgment.’” Gregoire v. Class, 236 F.3d 413, 417 (8th Cir. 2000) (quoting
Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999)). After the predicate
facts are established, “the reasonableness of the official’s conduct under the
circumstances is a question of law.” Tlamka, 244 F.3d at 632 (citing Pace v. City of
Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000)); Pace, 201 F.3d at 1056 (“We
restate for emphasis that whether an officer ‘acted reasonably under settled law in the
circumstances’ . . . is a question of law, and not itself a predicate fact. ‘Predicate
facts’ include only the relevant circumstances and the acts of the parties themselves,
and not the conclusions of others about the reasonableness of those actions.”
(internal citation omitted)).


        2
            The third cause of action is also based on 42 U.S.C. § 1981. See filing 17
¶ 15.

Exhibit A
        In moving for summary judgment, the defendant Crooks contends that “there
is no constitutional violation when a valid warrant or probable cause supports an
arrest, regardless of the motives of the arresting officer.” Defendant’s Brief at 8
(citations omitted); see Whren v. United States, 517 U.S. 806, 813 (1996)
(“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment
analysis.”); Conrad v. Davis, 120 F.3d 92, 96 (8th Cir. 1997), cert. denied, 523 U.S.
1081 (1998) (“[A]ny traffic violation, even a minor one, gives an officer probable
cause to stop the violator. If the officer has probable cause to stop the violator, the
stop is objectively reasonable and any ulterior motivation on the officer’s part is
irrelevant.” (quoting United States v. Caldwell, 97 F.3d 1063, 1067 (8th Cir. 1996)).
Thus, Crooks seems to be arguing that because he saw L. Johnson cross the center
line, he had probable cause to stop her, and his motives for stopping her, even if
improper, are therefore irrelevant. See Defendant’s Brief at 9; Aff. of Aaron Crooks
¶ 4, filing 28 at Ex. 1. Had L. Johnson admitted that she committed a traffic offense,
I woUld be included to agree with Crooks’ analysis, at least with respect to the
plaintiffs’ Fourth Amendment claim. See, e.g., Conrad, 120 F.3d at 96 (concluding
that “even if [the defendant] presented evidence that [the officer’s] stated reasons for
stopping [the defendant] were pretextual, such evidence would not invalidate the stop
and arrest” since the defendant “[did] not dispute the fact that he was speeding”
(citing Whren, 517 U.S. at 813)); see also Whren, 517 U.S. at 813 (“[T]he
constitutional basis for objecting to intentionally discriminatory application of law
is the Equal Protection Clause, not the Fourth Amendment.”); United States v. Pipes,
125 F.3d 638, 640 (8th Cir. 1997), cert. denied, 523 U.S. 1012 (1998) (“Of course,
officers must not selectively enforce the law based on unconstitutional considerations,
but such claims fall under the Equal Protection Clause, not the Fourth Amendment.”
(citation omitted)). Here, however, the question of whether L. Johnson crossed the
center line is a disputed factual issue that cannot be resolved at this stage of the
proceedings. Compare Aff. of Linda Johnson ¶ 4, filing 40 at Ex. 1 (“[A]t no time
did I ever cross the center line of the highway.”), with Aff. of Aaron Crooks ¶ 4,
filing 28 at Ex. 1 (“I then observed that the car immediately ahead of me on several
occasions crossed the centerline slightly into the oncoming traffic lane.”); see
Anderson, 477 U.S. at 255 (“Credibility determines, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge, whether he is ruling on a motion for summary judgment or for a directed
verdict.”); Mems v. City of St. Paul, 224 F.3d 735, 739 (8th Cir. 2000)
(“[C]redibility determinations fall within the fact finder’s purview, not ours.”);
Grossman v. Dillard Dep’t Stores, Inc., 47 F.3d 969, 971 (8th Cir. 1995) (“We may

Exhibit A
neither weigh evidence nor make credibility determinations at the summary judgment
stage.” (citation omitted)). Given the allegations in the plaintiffs’ affidavits, it seems
to me that factual issues also remain as to whether the stop was the product of racial
discrimination. Thus, because “‘there is a genuine dispute concerning predicate facts
material to the qualified immunity issue,’” I cannot find, as a matter of law, that
Crooks “acted reasonably under settled law in the circumstances.” Gregoire, 236
F.3d at 417 (citation omitted); Hunter v. Bryant, 502 U.S. 224, 228 (1991).
Accordingly, the defendant Crooks’ motion for summary judgment must be denied.

       IT IS ORDERED that the Defendant’s Motion for Summary Judgment, filing
27, is denied.

      Dated March 4, 2002.

                                            BY THE COURT


                                            /s/ Warren K. Urbom
                                            Warren K. Urbom
                                            United States Senior District Judge.

      A true copy.

             Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




Exhibit A
