                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 18-1454


BIANCA JOHNSON; DELMAR                    CANADA;      RODNEY       HUBBARD;
SAVANNAH HUBBARD,

                    Plaintiffs - Appellants,

             v.

ANDREW HOLMES,

                    Defendant - Appellee,

             and

JOHN DOES 1-3; ALBEMARLE COUNTY,

                    Defendants.



Appeal from the United States District Court for the Western District of Virginia, at
Charlottesville. Norman K. Moon, Senior District Judge. (3:16-cv-00016-NKM; 3:16-
cv-00018-NKM)


Argued: May 7, 2019                                          Decided: August 26, 2019


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
ARGUED: Jeffrey Edward Fogel, Charlottesville, Virginia, for Appellants. Jim H.
Guynn, Jr., GUYNN & WADDELL, P.C., Salem, Virginia, for Appellee. ON BRIEF:
Julian F. Harf, GUYNN & WADDELL, P.C., Salem, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       In this consolidated Fourteenth Amendment equal protection case, Bianca

Johnson, Delmar Canada, Rodney Hubbard, and Savannah Hubbard (“Appellants”), who

are all African American, assert that they were stopped and searched by Albemarle

County Police Officer Andrew Holmes as a result of racial profiling.

       To prove their selective enforcement actions against Officer Holmes, Appellants

offered statistical evidence obtained from Albemarle County. Appellants assert that this

statistical evidence demonstrates a striking disparity between the percentage of traffic

summonses that Holmes issues to African Americans, the percentage of traffic

summonses that all other officers on the police force issue to African Americans, and the

population of African Americans in Albemarle County.             According to Appellants,

Holmes made it a practice to stop and ticket three times as many African Americans as

Caucasians as compared to all other officers on the force, and more than twice as many as

compared to all officers who worked the same sectors 1 as Holmes.

       The district court concluded that Appellants’ statistical evidence failed to

demonstrate that similarly situated drivers of a non-protected class were treated

differently than Appellants, and, therefore, the district court held that such evidence could

not be admitted to prove that Holmes’s conduct had a discriminatory effect. Specifically,

according to the district court, Appellants’ statistics failed to identify white drivers


       1
         While on patrol duty, officers are assigned to patrol a particular area of the
county, called a sector.


                                             3
presenting “no distinguishable legitimate enforcement factors that might justify making

different enforcement decisions with respect to them.” J.A. 65–66. 2

       Because we conclude that the district court applied an improperly narrow

definition of “similarly situated,” we reverse the district court’s decision to exclude the

statistics for the purpose of proving discriminatory effect. However, because the record

before us is insufficient for this court to determine whether the statistics offered establish

Appellants’ claims as a matter of law, we remand to the district court for further fact

finding consistent with the proper standard described herein.

                                              I.

                                             A.

                                  Appellants’ Traffic Stops

       This consolidated case arises from two separate traffic stops conducted by

Holmes. The first stop involves Appellant Delmar Canada, the driver of the stopped car,

and Appellant Bianca Johnson, the owner of the car and Canada’s fiancée. The second

stop involves Appellant Rodney Hubbard, the driver of the stopped car, and his mother,

Appellant Savannah Hubbard.




       2
           Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.


                                              4
                                             1.

                           Delmar Canada and Bianca Johnson

       Holmes was on duty as a patrol officer for the Albemarle County Police

Department on April 26, 2014. As the district court described it, Holmes’s “main goal

that day was to use traffic enforcement . . . as a tool to do criminal interdiction,”

including using traffic stops to search for evidence of narcotics. J.A. 39–40 (internal

quotation marks omitted). As Holmes explained in his deposition, this was necessary

because “[n]o one drives around with signs on the side of their car that say ‘I’m carrying

drugs.’” Id. at 40. In furtherance of these criminal interdiction efforts, Holmes parked

his patrol vehicle in the parking lot of a Super 8 motel in Charlottesville, Virginia, which

was located across the street from a 7-Eleven convenience store. Holmes then ran the

license plates of vehicles in the parking lots of both businesses through a police database.

       After running the license plates on several other vehicles, Holmes ran the plates on

a BMW 7 Series sedan and learned that the vehicle was registered to Appellant Johnson.

Holmes then ran Johnson’s information in another police database, where Appellant

Canada was listed as a person associated with Johnson. Holmes reviewed Canada’s

information in the database, obtained a photograph of Canada, and learned that Canada’s

driver’s license had been suspended for failing to pay child support.

       At some point during this process, an African American man exited the 7-Eleven

and got in the driver’s seat of the BMW. Holmes matched the photograph from the

police database to the man who entered the vehicle and determined that Canada was the

driver. After Canada left the 7-Eleven’s parking lot, Holmes initiated a traffic stop of the

                                             5
vehicle. Holmes informed Canada that his license was suspended. Canada stated that he

did not know his license had been suspended. Canada contacted Johnson and arranged

for her to bring the vehicle registration to him at the stop, which she did. After speaking

with Appellants Canada and Johnson, Holmes and another officer who had joined the

scene returned to Holmes’s patrol vehicle. While there, the other officer observed that

Canada was driving a “nice car.” J.A. 42. Holmes noted that it was an “expensive car.”

Id. Holmes then issued Canada a summons for driving on a suspended license.

      The next day, Holmes applied for and received a search warrant to search

Appellants Canada and Johnson’s home for a license suspension notice, which DMV

records showed had been sent to the home a year earlier. 3 In his trial testimony, Holmes

expressed the view that obtaining a search warrant to search an individual’s home for a

suspension notice could be used as an “investigative tool” by law enforcement to find

evidence of possible other, non-traffic-related crimes for which there was not probable




       3
         Of note, the search warrant application was only for the suspension notice and
made no mention of any other criminal activity. Despite this, at some point after the stop
but before obtaining the search warrant, Holmes contacted the Jefferson Area Drug
Enforcement (“JADE”) task force and inquired as to whether Canada was involved in any
active drug investigations. Holmes was advised that Canada’s name was familiar, but he
was not involved in any open investigations by the task force.

       Holmes testified that contacting JADE was in line with his “common practice,”
because he “didn’t want to mess up anything they may have been doing” regarding
Canada or his residence. J.A. 128. However, Holmes did not inquire about any active
JADE investigations involving Johnson, who also resided in the home Holmes intended
to search.


                                            6
cause to search. J.A. 100. 4 Holmes testified that he had never before obtained a search

warrant to search for a suspension notice, and he was unaware of any other officer in the

department who had done so. According to Holmes, he had only recently learned about

the use of search warrants in suspended license cases from another officer, Detective

Schenk, who learned of the tactic during a police training session on gangs.

      The warrant directed officers to “forthwith search” Appellants’ residence, “either

in day or night.” J.A. 43. Holmes waited five days before executing the warrant. Then,

      4
         In this case, the evidence of possible other, non-traffic-related crimes that
Holmes apparently thought he might find at Appellants’ residence was related to
narcotics:

             Q: You had found out that using a search warrant in a traffic
             matter was a useful investigative tool, hadn’t you?

             A: Yes, sir.

             Q: And that tool was useful beyond the fact of the actual
             traffic ticket.

             A: It’s an investigative tool. Yes, sir.

             ...

             Q: You knew if you went to the house with this search
             warrant and you found drugs, you could arrest him for the
             possession of drugs.

             ...

             A: [Y]es, if you find drugs in an apartment while you’re
             searching for something else that you’re legally there to
             search for, then you can begin an investigation into drugs.

J.A. 100–101; see also id. at 112 (“Q: You were really there looking for narcotics. A: I
was there looking for a DMV notification . . . . I wouldn’t have been surprised if I found
drugs; but I was looking, searching for a DMV notification form.”).


                                             7
on a Friday night at 11:19 PM, Holmes and two other officers arrived at Appellants’

home and conducted the search, ostensibly for the one-page license suspension

notification. They found nothing.

                                          2.

                       Rodney Hubbard and Savannah Hubbard

      On September 11, 2015, Appellant Rodney Hubbard and his mother, Appellant

Savannah Hubbard, were driving north on Route 29 and entered Albemarle County.

Hubbard slowed down when he passed Holmes, who was standing outside his patrol car.

A mile or two later, Hubbard noticed Holmes in his patrol car following behind Hubbard.

This continued for three to four miles, until Holmes passed Hubbard. After another mile

or two, Hubbard again noticed Holmes following him in his patrol car. At that point,

Holmes pulled Hubbard over. Holmes claimed he stopped Hubbard because he had

driven 65 mph in a 60 mph zone, but Hubbard denied he was speeding.

      Holmes asked Hubbard for his license and registration, but Hubbard did not have

his license with him and gave Holmes an identification card instead. Holmes then asked

Hubbard to step out of the vehicle and asked him whether Hubbard’s license was

suspended in Virginia. Hubbard said he was unsure, but that his license in Maryland was

expired. Holmes learned later during the stop that Hubbard’s Virginia license was, in

fact, suspended.

      Holmes claimed he smelled marijuana and asked Hubbard why the vehicle

smelled like marijuana. Hubbard denied that the vehicle smelled like marijuana and said

there was no marijuana in the car, but he admitted that someone had smoked in the

                                          8
vehicle three or four days before the stop. Hubbard stated he had placed an air freshener

in his car to conceal the marijuana smell from his mother. In her deposition, Savannah

Hubbard denied smelling marijuana.

       Holmes told Hubbard he was not under arrest.              Nevertheless, Hubbard was

handcuffed, searched, and placed in the back of Holmes’s patrol car due to the alleged

marijuana Holmes claimed he smelled in Hubbard’s vehicle. Savannah Hubbard, who

was 75 years old, 5 was also searched and placed in another patrol car, and Hubbard’s car

was searched. No drugs were found in the car. Holmes issued Hubbard a summons for

driving with a suspended license.

                                               B.

                           Appellants’ Proffered Statistical Evidence

       Pursuant to Appellants’ discovery request, Albemarle County generated the

statistical evidence at issue in this case, which is located at J.A. 74, 75, 76, 77, and 78. 6

Although the parties dispute what conclusions are to be drawn from these statistics, a

general discussion of the charts created by the county is necessary at the outset.

                                                1.

       The chart at J.A. 75 depicts the general demographic data of Albemarle County as

of 2016, as well as the demographic data of the specific sectors of the county that Holmes


       5
        Savannah Hubbard’s age is not in the record, but during oral argument,
Appellants’ counsel noted that she was 75.
       6
           For reference, these pages of the J.A. are attached to this opinion.


                                                9
patrolled most often. Overall in Albemarle County, 80.66% of the population is white,

and just 9.69% of the population is black. Holmes usually patrolled Sector 1 or 2. J.A.

75 shows that 68.04% of the population of Sectors 1 and 2 is white, while 18.21% is

black.

                                             2.

         J.A. 74 depicts the number of Holmes’s traffic stops and summonses for the years

2009 to 2015. In this timeframe, Holmes conducted 1,205 traffic stops and issued 655

summonses.      For these 655 summonses, J.A. 74 also includes a breakdown of the

summonses issued per year sorted by the race of the driver receiving the summons. 7 Per

the charts provided by Albemarle County, in 2015, Holmes issued 92 summonses. Of

these 92, he issued 47 summonses, or 51.08%, to black individuals and 44 summonses, or

47.82% to white individuals. Out of the 655 summonses that Holmes issued from 2009

to 2015, he issued 305 summonses, or 46.56%, to black individuals and 348 summonses,

or 53.13%, to white individuals.

                                             3.

         J.A. 76 is titled “2015 County Traffic Statistics,” and it contains a chart of all

summonses issued by the Albemarle County Police Department in 2015 sorted by the

race of the driver receiving the summons. Per these statistics, in 2015, officers in the



         7
        Albemarle County tracks the number of traffic stops an officer conducts, but it
does not record the race of the stopped driver if no summons was issued. Accordingly,
data based on a driver’s race is only available for actual traffic summonses, not stops.


                                             10
department issued a total of 8,219 summonses. Of those summonses, 6,626, or 80.6%,

were issued to white drivers, and 1,412, or 17.2%, were issued to black drivers.

                                               4.

       J.A. 77 lists all officers other than Holmes who patrolled Sectors 1 and 2, along

with the number of summonses 8 each officer issued in 2015 sorted by the race of the

person receiving the summons. In total, the other officers on the force who worked the

same sectors as Holmes 9 issued 285 summonses. Of these, 210 summonses, or 73.68%,




       8
          Of the statistics generated by Albemarle County, J.A. 77 is the only page that
references “citations” rather than “summonses.” Although these terms are not defined in
the record, all parties agreed during oral argument that “citations” and “summonses” are
synonymous and can be used interchangeably to mean “writing a ticket.” See Oral
Argument at 3:38–4:03, Johnson v. Holmes, No. 18-1454 (4th Cir. May 7, 2019),
http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (hereinafter “Oral
Argument”) (“Court: ‘Are summonses and citations the same thing?’ Appellants’
Counsel: ‘I believe so. . . . As far as I know, they are. But there’s nothing in the record to
indicate that.’”); see also id. at 18:25–36 (“Appellee’s Counsel: ‘I think that summonses
and citations are . . . two different words for the same thing. . . . Basically, that’s writing a
ticket.’”). For the purposes of this opinion, we will use the term “summonses.”

      J.A. 77 is also the only page of statistics that does not reference traffic stops or
summonses specifically. Accordingly, and as further discussed below, it is unclear
whether the data in this chart reflects only traffic summonses, or if it includes non-traffic
summonses issued by officers in Sectors 1 and 2.
       9
          Holmes testified that he was occasionally assigned to patrol Sector 3;
accordingly, the data reflected on J.A. 74 could contain summonses he issued outside of
Sectors 1 or 2. Although the specific demographic data on J.A. 75 and the summonses of
other officers on J.A. 77 only pertain to Sectors 1 and 2, both counsel agreed at oral
argument that Sector 3 is a more rural area than Sectors 1 and 2 and contains a higher
percentage of white individuals and a lower percentage of black individuals.
Accordingly, Holmes’s stops and summonses issued in Sector 3 cannot explain the racial
disparity in Appellants’ statistics.


                                               11
were issued to white individuals, and 62 summonses, or 21.75%, were issued to black

individuals.

                                             5.

       J.A. 78 is titled “Traffic Unit.” Similar to J.A. 76 (which pertained to 2015), J.A.

78 contains a chart of all summonses issued by the Albemarle County Police Department

in 2014 sorted by the race of the driver receiving the summons. In 2014, officers in the

department issued a total of 10,250 summonses. Of those summonses, 8,315, or 81.1%,

were issued to white drivers, and 1,716, or 16.7%, were issued to black drivers.

                                             6.

       Thus, as portrayed in J.A. 74, 75, and 77, the population of Sectors 1 and 2 is

68.04% white and 18.21% black. In 2015, Albemarle County police officers other than

Holmes patrolling Sectors 1 and 2 issued 73.68% of summonses to white individuals and

21.75% to black individuals.      Meanwhile, in 2015, Holmes issued 47.82% of his

summonses to white individuals and 51.08% to black individuals.

                                             C.

                                    Procedural History

       Appellants Canada and Johnson and Appellants Rodney and Savannah Hubbard

each brought 42 U.S.C. § 1983 actions against Holmes, other unknown police officers,

and Albemarle County. Both cases were originally assigned to Judge Glen E. Conrad of

the United States District Court for the Western District of Virginia.




                                            12
                                              1.

                                    Canada/Johnson Case

       In the case of Appellants Canada and Johnson, Holmes and Albemarle County

moved for summary judgment. Judge Conrad granted summary judgment to Albemarle

County on the municipal liability claim, but denied summary judgment on Appellants’

equal protection claim against Holmes. Specifically, Judge Conrad concluded that based

on Appellants’ proffered statistics and other evidence, a jury could reasonably infer that

Holmes’s stop and subsequent search of Appellants’ residence “were motivated by a

discriminatory purpose and had a discriminatory effect.” J.A. 52.

       The case was subsequently reassigned to Judge Norman K. Moon, also of the

United States District Court for the Western District of Virginia, and it proceeded to trial.

Holmes filed a motion in limine to exclude Appellants’ statistical evidence. Judge Moon

granted Holmes’s motion in part, concluding that although the statistics could be

admitted for the purpose of showing discriminatory intent, 10 they could not be used to


       10
            As to discriminatory intent, Judge Moon concluded:

                Plaintiffs[] need only prove that racial animus was but one of
                the reasons Holmes undertook the course of action he did
                against them. In answering that question, the jury can take
                many factors into consideration, including any pattern of
                racially motivated actions by Holmes or any “historical
                background” of his actions that might reveal racial
                discrimination. In light of these jury considerations, the data
                showing Holmes’[s] comparably high arrest and citation rates
                of blacks is somewhat probative of his intent -- at least when
                combined with other evidence Plaintiffs may adduce at trial.

(Continued)
                                              13
show discriminatory effect because they “lack[ed] any information about Holmes’[s]

actions against similarly situated individuals of a different race.” J.A. 70.

       During the course of the trial, Appellants sought to introduce a portion of the trial

deposition of Captain Darrell Byers of the Albemarle County Police Department, wherein

Captain Byers stated that in his career as a captain and a patrol officer, he had never

sought a search warrant for a suspended license case and he was unaware of any other

officer in the department who had done so. Holmes objected to this testimony on the

basis that without proof that Captain Byers had faced similar circumstances, it was not

relevant.   The district court sustained Holmes’s objection, concluding that Captain

Byers’s testimony was insufficient to show that Holmes had deviated from normal

procedure by obtaining a warrant for the suspension notice. See J.A. 169 (“Well, we

don’t know that it’s a deviation. We don’t know how often we have the same or similar

circumstances in all these cases.”).

       At the close of the plaintiffs’ case, Holmes moved for judgment as a matter of law.

Judge Moon granted the motion in Holmes’s favor, reasoning that Appellants failed to

provide evidence that Holmes’s conduct had a discriminatory effect, an element of

Appellants’ selective enforcement claim.




J.A. 64–65 (citations omitted). On appeal, the parties do not ask this court to disturb
Judge Moon’s ruling as to discriminatory intent.


                                             14
                                             2.

                                  Hubbard/Hubbard Case

        Appellants Rodney and Savannah Hubbard’s case was also reassigned to Judge

Moon.       Following Judge Moon’s exclusion of Appellants’ statistics in the

Canada/Johnson case, Holmes moved for summary judgment in the Hubbards’ case on

the basis that Appellants similarly could not prove discriminatory effect based on the

statistics sought to be introduced in the Johnson/Canada trial. The district court granted

Holmes’s motion. Consistent with his decision in the Johnson/Canada trial, Judge Moon

concluded Appellants’ statistical evidence was insufficient to demonstrate discriminatory

effect in the Hubbards’ case because it lacked information on white individuals who were

similarly situated to Appellants but were treated differently.

                                             II.

        We review de novo the legal question of whether Appellants’ proffered statistics

satisfied the standard for selective enforcement cases set out in United States v. Hare, 820

F.3d 93 (4th Cir. 2016) (adopting the standard in United States v Armstrong, 517 U.S.

456, 465 (1996), as the standard for selective enforcement cases), and we review a

district court’s relevancy and Federal Rule of Evidence 403 determinations for abuse of

discretion. See United States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000). A trial

court’s evidentiary ruling will be overturned only if it is “arbitrary and irrational.” Noel

v. Artson, 641 F.3d 580, 591 (4th Cir. 2011).




                                             15
                                              III.

      The Equal Protection Clause of the Fourteenth Amendment prohibits police

officers from selectively enforcing laws based on race. See Whren v. United States, 517

U.S. 806, 813 (1996). To prevail on a selective enforcement claim, Appellants must

prove that Holmes’s conduct (1) was motivated by a discriminatory intent; and (2) had a

discriminatory effect. See United States v. Armstrong, 517 U.S. 456, 465 (1996); Cent.

Radio Co. v. City of Norfolk, 811 F.3d 625, 634–35 (4th Cir. 2016). As noted above,

Judge Moon ruled that Appellants’ proffered statistics were admissible to prove

discriminatory intent, but not discriminatory effect. On appeal, the parties dispute only

the discriminatory effect element.

                                              A.

                                     Appellants’ Statistics

      Establishing discriminatory effect requires a plaintiff to show that similarly

situated individuals of a different race were treated more favorably. See Armstrong, 517

U.S. at 465.   A plaintiff may make this showing by (1) naming similarly situated

individuals of a different race who were treated differently by law enforcement; or (2)

providing statistics that address this question. See Farm Labor Org. Comm. v. Ohio State

Highway Patrol, 308 F.3d 523, 534 (6th Cir. 2002) (quoting Chavez v. Ill. State Police,

251 F.3d 612, 638 (7th Cir. 2001)).

      The law has repeatedly recognized that statistics can be used to prove

discriminatory effect. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (finding

that a San Francisco ordinance banning the operation of laundries in wooden buildings

                                              16
was discriminatorily applied to Chinese launderers where the city denied the petitions of

some two hundred Chinese applicants who applied for exemption from the ordinance, but

granted all but one of the eighty petitions of the non-Chinese launderers who applied);

Armstrong, 517 U.S. at 467 (noting that the similarly situated requirement was met by the

“indisputable evidence” in Hunter v. Underwood, 471 U.S. 222 (1985), that African

Americans were 1.7 times as likely as whites to suffer disenfranchisement under the law

in question).

       The ultimate question presented in this case is exactly what these statistics must

show in order to meet the similarly situated requirement. Holmes does not dispute the

fact that as a general matter statistics can be used, but he contends that, in this case,

Appellants’ statistics were insufficient to demonstrate that similarly situated individuals

of another race were treated differently.

                                            1.

                     Standard for Similarly Situated Using Statistics

       We have held that individuals are similarly situated when there are “no

distinguishable legitimate enforcement factors that might justify making different

enforcement decisions with respect to them.” United States v. Hare, 820 F.3d 93, 99 (4th

Cir. 2016) (quoting United States v. Venable, 666 F.3d 893, 900–01 (4th Cir. 2012)); see

also United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996). In other words, the

statistics must show “similarly situated white individuals who could have been targeted

for [the enforcement action] but were not.” Hare, 820 F.3d at 99. The statistics must

compare apples to apples.

                                            17
                                              2.

                         Holmes’s Proposed Enforcement Factors

       According to Holmes, Appellants’ proffered statistics failed to establish that other

white drivers were similarly situated to Appellants because the statistics were not detailed

enough to rule out possible legitimate enforcement factors that might justify making

different enforcement decisions notwithstanding race.

       Specifically, Holmes asserts the following faults with Appellants’ statistical

evidence, which he argues could constitute distinguishable legitimate enforcement

factors: (1) the statistics are not (according to Holmes) limited to traffic stops and

searches, but may include calls for service; 11 (2) the statistics do not include the reason a

driver was pulled over; (3) the statistics do not identify individuals who were not stopped

but could have been; (4) the statistics regarding summonses issued to white individuals

by other officers on the force do not break down the types of offenses charged, the

specific location of the offenses within Sectors 1 and 2, or specify whether the summons

originated with a traffic stop or involved a search; and (5) “the statistics do not account

for potential racial disparities that might result from crime-based assignments, such as if

Holmes or his fellow officers were directed to focus on one type of crime or another.”

Appellee’s Br. 11.


       11
          A call for service is when an officer is dispatched to a certain location in
response to an emergency or nonemergency police call. See J.A. 154 (“[A]s a patrol
officer, one of my duties is to answer what I was referring to as calls for service. It’s
where dispatch dispatches you to a particular location to handle a call.”).


                                             18
       Thus, according to Holmes, Appellants’ statistics are insufficient because they are

not detailed enough to exclude certain possible legitimate law enforcement factors that

may explain the stark disparity in Holmes’s rate of traffic summonses for African

American individuals.

       The district court agreed with Holmes, noting, “[T]he statistics do not break down

citations and arrests by particular kind of crime, nor do they account for potential racial

disparities that might result from crime-based assignments, such as if Holmes or his

fellow officers were directed to focus on one type of crime or another.” J.A. 66. The

district court concluded this was fatal to Appellants’ claim because “[w]ithout these types

of information, the raw statistics simply don’t advance the ball because they leave the

jury without any indication of whether ‘distinguishable legitimate enforcement factors’

differentiate [Appellants] from some (as yet unidentified) non-black citizen who (by

hypothesis) received different treatment.” Id. at 66–67.

       However, for the reasons explained below, none of Holmes’s proposed

enforcement factors -- that is, the five alleged statistical faults he raised -- prevent

Appellants’ statistical evidence from comparing apples to apples as a matter of law.

                                             a.

              Proposed Factor 1: Traffic Summonses and Calls for Service

       First, Holmes makes much of his assertion that Appellants’ statistics may include

summonses resulting from calls for service in addition to traffic stops.




                                            19
       We note that nothing on the face of the statistical evidence at J.A. 74–78 suggests

that the data includes calls for service, and Appellants dispute that it does. 12 However,

even if true, we fail to see how the inclusion of calls for service in Appellants’ statistics

could explain the racial disparity in Holmes’s traffic summonses as compared to other

officers working the same sectors. As Holmes himself explained, a call for service

occurs when dispatch sends an officer to a particular location to respond to a police call.

       Thus, even if calls for service are included in the statistics, this would affect the

statistics for all officers, not only Holmes. Unless dispatch assigns Holmes, and no other

officers, to respond to calls for service when a black individual is involved -- an absurd

hypothetical that is nowhere supported in the record -- the inclusion of calls for service

into Appellants’ statistics could not explain the stark disparity in the number of

summonses that Holmes issues to black individuals as compared to other officers.




       12
          And, although Holmes’s briefing before this court argues unequivocally that
Appellants’ statistical evidence was not limited to traffic summonses because it included
summonses that resulted from calls for service, see Appellee’s Br. 3 (“Appellants
mistakenly refer to the statistics on summonses as representing ‘traffic summonses.’”),
Holmes testified at trial that he did not know whether the data was limited to traffic
summonses. See J.A. 135–36 (“Q: So you don’t think these were traffic summonses that
were on this document. A: I don’t know. The only thing that was on that document, as I
recall, when it was presented, was total summonses issued. Again, I don’t know -- again,
I don’t know whether they’re traffic summonses or whether they include all my
summonses issued.”). Meanwhile, at oral argument before this panel, Holmes’s counsel
seemed to acknowledge that Appellants had requested only traffic summonses from
Albemarle County, not all summonses. See Oral Argument at 33:51–57 (“[Appellants’
counsel] never asked for a breakdown of the summonses as to what they were for. It was
just simply traffic summonses.” (emphasis supplied)).


                                             20
Accordingly, this alleged fault does not prevent the statistics from meeting the similarly

situated requirement.

                                             b.

            Proposed Factors 2, 3, and 4: Details the Statistics Do Not Show

       Holmes next takes issue with the particular details of each stop and summons that

are not reflected in the aggregate data. Specifically, he faults Appellants’ statistical

evidence for not revealing the reason each driver was stopped; whether a driver received

more than one summons during the same stop; the specific types of offenses charged; the

specific location of the traffic stop within the sector; or whether the encounter involved a

search. Holmes also faults the statistical evidence for failing to identify individuals who

were not stopped.

       Significantly, Holmes does not explain how the lack of these details makes

Appellants’ statistics unreliable for the purpose of proving that Holmes’s conduct had a

discriminatory effect, or how any of these factors could explain the racial disparity in

Holmes’s traffic summonses. Appellants do not assert that Holmes’s alleged selective

enforcement of traffic laws depended on, for example, the specific type of traffic offense

at issue or the exact location of the stop within a sector. As for the statistics’ failure to

identify individuals who were not stopped, such data is not recorded by the county -- and,

indeed, would likely be impossible to track. How could something that was not done

possibly be tracked? Further, all of the information that Holmes claims is missing with

respect to his traffic summons statistics are similarly not included in the statistics for all



                                             21
other officers on the force, so the statistics (at least facially) appear to compare apples to

apples.

        More broadly, the level of detail that Holmes seeks from Appellants’ statistics is

fundamentally at odds with the nature of aggregated data, which cannot include every

conceivable detail about each traffic stop. Without an indication in the record that the

details Holmes seeks would affect Appellants’ claims, the allegedly missing information

does not constitute distinguishable legitimate enforcement factors that justify excluding

the statistics.

                                              c.

             Proposed Factor 5: Accounting for Potential Crime-Based Assignments

        Finally, Holmes faults Appellants’ statistics for failing to “account for potential

racial disparities that might result from crime-based assignments, such as if Holmes or his

fellow officers were directed to focus on one type of crime or another.” Appellee’s Br.

11. But there is zero evidence in the record, including in Holmes’s own testimony, that

Albemarle County police officers in fact received crime-based traffic patrol assignments.

Similarly, contrary to Holmes’s suggestion, there is no evidence that Holmes focused on

patrolling different streets than other officers assigned to the same sector. 13

        These proposed “distinguishable legitimate enforcement factors” are not apparent

on the face of Appellants’ statistics, but are instead possible differences that Holmes says

        13
         In fact, Holmes testified at trial that he patrolled the entire sector to which he
was assigned: “We have an assigned sector and we’ll patrol that whole sector . . . in
between calls for service in that sector.” J.A. 80.


                                              22
might exist. In other words, Holmes assails the data -- which came from his employer and

original co-defendant, Albemarle County Police Department -- for failing to affirmatively

rule out his proposed enforcement factors when there is no record basis to believe such

factors exist.

       It is notable that Holmes is in the best position to know whether his proposed

enforcement factors are true; however, even he does not claim that he in fact received

crime-based assignments or that he in fact patrolled different streets than the other

officers assigned to the same sectors. Holmes merely asserts that Appellants’ statistics do

not show whether he did or not.

       Holmes’s entirely speculative proposed factors do not constitute “distinguishable

legitimate enforcement factors,” and they cannot justify excluding Appellants’ statistical

evidence from proving discriminatory effect.

                                              3.

                         The Proper Meaning of Distinguishable

       By accepting Holmes’s proposed enforcement factors as legitimate reasons to

exclude Appellants’ statistics, the district court improperly defined “distinguishable

legitimate enforcement factors” too narrowly. Rather than interpreting “distinguishable”

to mean an enforcement factor that was identifiable or discernable from the statistics

themselves or other evidence in the record, the district court interpreted it to mean any

possible   differentiating   feature   --   even   if   not   supported   by   the   evidence

-- between Appellants and the other drivers represented in Appellants’ statistics. Such a

definition would require a plaintiff’s statistics to affirmatively disprove every conceivable

                                              23
distinguishable factor that a defendant could raise. Aggregated data could never be so

detailed.

       Although selective enforcement and selective prosecution claims may be difficult

to prove, the Supreme Court has clarified that they are not (and should not be) impossible

to prove. See Armstrong, 517 U.S. at 466 (“The similarly situated requirement does not

make a selective-prosecution claim impossible to prove.”). Accordingly, we conclude

that when a plaintiff offers statistical evidence to prove discriminatory effect in a

selective enforcement case, a “distinguishable legitimate enforcement factor” is one that

is identifiable on the face of the statistics or made apparent from other evidence in the

record. To hold otherwise would mean interpreting the law to permit a claim (and an

avenue for bringing that claim through statistics), while simultaneously making it

impossible for such a claim to make it to a jury (by imposing a standard of proof that

defies statistics). This cannot be right.

       It is significant that Holmes may raise his proposed enforcement factors, if true,

before the jury to attack Appellants’ statistical evidence at trial. Conversely, requiring a

plaintiff’s statistics to be so detailed as to disprove any possible enforcement factor that a

defendant may assert, even when there is no record evidence that any such factor exists,

would mean a plaintiff’s proof must be completely unassailable both factually and as a

matter of law to even submit it to a jury.

       Finally, Appellants could only bring this claim by relying on data received from

Albemarle County. In other words, the very entity who decides what data to record is the

same entity that would benefit from vague or incomplete statistics in selective

                                             24
enforcement cases like this one. Although the burden of proving a selective enforcement

claim is on the plaintiff, we cannot ignore the reality that the recordkeeping is entirely

under the county’s control.            Defendants could evade liability by simply omitting

necessary information from their records. The law should not create or allow such an

incentive.

                                                 4.

                         Whether Appellants’ Statistics are Sufficient

       The remaining question is whether Appellants’ statistics are sufficient evidence of

discriminatory effect when applying the correct standard -- that is, whether the statistics

or other evidence in the record reveal no distinguishable legitimate enforcement factors

that justify making different enforcement decisions between Appellants and the white

drivers reflected in the statistics.

       At the outset, we note that Appellants’ statistics avoid the pitfall of the statistics at

issue in United States v. Armstrong, United States v. Hare, and United States v. Olvis. 14

Crucially, in each of these cases, the proffered statistics faltered because they said

nothing about individuals of other races who committed the same crimes but were treated

more favorably. For example, in Armstrong, the Supreme Court rejected the statistical

evidence proffered by the criminal defendants, which was (as relevant here) a “study”


       14
         Although Armstrong and Olvis are selective prosecution claims, they apply the
same standard as selective enforcement claims. See Hare, 820 F.3d at 99 (“This Court
has adopted Armstrong’s standard for proving selective prosecution as the standard for
proving selective enforcement.”).


                                                25
conducted by the criminal defendants’ lawyers showing that “in every one” of the Office

of the Federal Public Defender’s 24 cases in 1991 in which a defendant was prosecuted

for conspiring to possess and distribute crack cocaine, the defendant was black.

Armstrong, 517 U.S. at 468–69. The Court held that the study was insufficient because it

addressed only the prosecuted black defendants and did not include evidence that

similarly situated white defendants could have been prosecuted but were not. Instead, the

study “presum[ed] that people of all races commit all types of crimes,” a presumption

that the Court determined “ha[d] no proper place in the analysis of this issue.” Id. at

469–70 (emphasis omitted). Thus, the flaw in the proffered study in Armstrong was that

it did not demonstrate that anyone outside of the 24 black defendants could have been

prosecuted, and the Court was unwilling to assume without evidence that such

individuals of other races existed.

       But, significantly, Appellants’ statistics are unique in this respect.      Because

Appellants charge one officer, Holmes, with selectively enforcing traffic laws based on

race (as opposed to an entire department), Appellants can compare data about Holmes’s

traffic stops and summonses by race with similar data from the rest of the police force

and from individual officers assigned to the same sectors as Holmes. Thus, even though

Albemarle County does not (and could not) record the races of specific drivers who could

have been stopped but were not, nor does it record the races of drivers who were stopped

but not ticketed, the percentage of white drivers stopped and ticketed by the other officers

patrolling the same locations as Holmes serves as a proxy to show the general racial

composition of drivers on the road that Holmes could have pulled over but did not.

                                            26
       But this is not necessarily enough to prove Appellants’ claims. As explained

above, to satisfy the similarly situated requirement, there can be no distinguishable

legitimate enforcement factors identifiable on the face of Appellants’ statistics or made

apparent from other evidence in the record that justify making different enforcement

decisions between Appellants and the white drivers reflected in the statistics. In this case,

we cannot conclude on the current record that no legitimate enforcement factors are

identifiable on the face of the statistics, because it is not clear whether Appellants’

statistics on J.A. 77, which shows the summonses issued by other officers in Sectors 1

and 2, are limited to traffic summonses.

       We have already addressed Holmes’s contention that Appellants’ statistical

evidence may include summonses resulting from calls for service. As we noted, this

argument does not explain the racial disparity in Holmes’s summonses, since any racial

disparities created by calls for service would affect the other officers in Sectors 1 and 2 as

well. Separate from the calls for service issue, however, Holmes more broadly attacks

Appellants’ statistics as not being limited to traffic stops and traffic summonses, but as

including all summonses issued by an officer for any reason.

       In response, Appellants maintain that the statistics reflect only traffic summonses.

Appellants first assert that the statistics were provided by Albemarle County in response

to a discovery request for traffic summonses. See Oral Argument at 3:34–38 (“All that

we requested were traffic summonses and traffic stops.”). Secondly, Appellants argue,

“the context of the charts demonstrate that they are traffic statistics.” Appellants’ Reply

Br. 1 n.1.

                                             27
       As to Appellants’ second point, we agree that the titles and context of the charts

provided by the county and proffered by Appellants on J.A. 74, 75, 76, and 78 indicate

that these statistics refer to traffic stops and summonses. J.A. 74, which relates to

Holmes’s traffic stops and summonses issued from 2009 to 2010, contains first a chart

titled “Number of Traffic Stops Conducted by Year,” followed by an identically

formatted chart titled “Number of Summonses Issued by Year.”                      The number of

summonses appear to be a subset of the number of traffic stops (those stops that resulted

in a summons being issued), and there is nothing on the face of the statistics nor any other

evidence in the record to suggest that the data includes summonses from any source other

than traffic stops.    J.A. 75 includes only demographic data; nevertheless, it notes:

“Demographic data is not available for traffic stops unless a summons/citation is issued.”

The inclusion of this note on J.A. 75, which otherwise contains no data about summonses

or other enforcement activities, suggests that the statistics were generated in response to a

data request specific to traffic enforcement. J.A. 76 and 78, titled “2015 County Traffic

Statistics” and “Traffic Unit,” respectively, appear clearly tailored to traffic data and

include charts related to traffic crashes, traffic fatalities, and DUI arrests.

       However, J.A. 77 does not specify that the summonses contained in that chart

were traffic summonses. In fact, J.A. 77 is the only chart that contains no mention of

“traffic.”   Notably, Holmes is not included in the chart on J.A. 77, so we cannot

determine the value of the statistics on this chart. Thus, it is unclear whether all of




                                               28
Appellants’ statistics compare Holmes’s traffic summonses to the other Sector 1 and 2

officers’ traffic summonses. 15

       This leaves us with Appellants’ first point: that the statistics were provided by

Albemarle County in response to Appellants’ discovery request for traffic summonses.

However, the specific language of this data request is not in the record before us, and it

was apparently not in the record before the district court. As discussed at oral argument:

              COURT: What did you ask for?

              APPELLANTS’ COUNSEL: I asked for traffic summonses.

              COURT: Traffic summonses?

              COUNSEL: Yes. In fact, I have the request here.

              COURT: Is the request in the record?

              COUNSEL: No.

Oral Argument at 4:44–55.

       The question of what data is depicted in J.A. 77 arose repeatedly in oral argument,

and Appellants’ counsel offered to supplement the record with Appellants’ original data

request to show specifically what Appellants asked the county for:

              COURT: What we don’t know is what you asked for.
              You’ve made a representation to us about what you asked for.
              Both [counsel] told us, I think, that those discovery requests
              are not in the record, and the responses to them are not in the

       15
          If further fact-finding reveals that the data underlying J.A. 77 is not limited to
traffic summonses, whether this is a distinguishable legitimate enforcement factor
precluding Appellants’ statistics from satisfying the similarly situated requirement is a
question for the district court to resolve in the first instance. We express no opinion on
this matter.


                                            29
              record . . . . It was also suggested . . . that you all could move
              to supplement the record. You haven’t done that yet, right?

              APPELLANTS’ COUNSEL: But it’s not too late, I hope.

              COURT: You’re never going to know unless you make a
              motion, will you?

Oral Argument at 37:06–41.

       But Appellants’ subsequent motion to supplement did not include Appellants’

original data request to the county, but instead contained only the raw data used to

compile the chart in J.A. 74. Thus, Appellants have so far been unable to support their

assertion that they specifically requested traffic summonses from Albemarle County.

       Accordingly, this court is unable to decipher on this record whether Appellants’

statistics satisfy the similarly situated requirement as a matter of law. Therefore, we

reverse the district court’s ruling excluding Appellants’ statistics from trial for the

purpose of proving discriminatory effect, and remand to the district court for further fact-

finding and analysis per the correct standard explained in this opinion. 16

       Specifically, the question for the district court is whether there are distinguishable

legitimate enforcement factors apparent from the face of the statistics themselves or other

record evidence that justify making different enforcement decisions between Appellants

and the white drivers reflected in the statistics, bearing in mind the unique power

imbalances inherent in selective enforcement cases when plaintiffs are forced to rely on


       16
       In light of this remand, we accordingly dismiss as moot Appellants’ Motions to
Supplement, ECF Nos. 45 and 48.


                                             30
the police department’s statistics to prove their claim. If Appellants show that they asked

for traffic stops and traffic summonses, they may rely on the information the county

provides about its own officers in response to that request. Thus, in that case, the district

court may safely presume J.A. 77 -- and the remaining statistical evidence created by the

county -- reflects traffic summonses.

                                             B.

                                Captain Byers’s Testimony

       Appellants also assert that the district court erred in excluding deposition

testimony by Captain Byers of the Albemarle County Police Department that he had

never sought a search warrant to look for a license suspension notice, nor was he aware

of any other officer who had done so. The district court ruled this evidence inadmissible

because Captain Byers’s statement did not establish that he had confronted similar

circumstances as Holmes’s stop and subsequent citation of Appellant Canada -- that is,

Captain Byers’s testimony did not state that he had issued a suspended license ticket to a

driver who denied receiving a suspension notice in the mail.

       It strikes us that Captain Byers’s testimony could serve as evidence that Holmes

deviated from standard procedure in applying for a search warrant for the suspension

notice, which a jury may consider as evidence of discriminatory intent, if Captain Byers

testified that he has, in fact, faced similar circumstances as Holmes but chose not to apply

for a search warrant for a suspension notice. However, in the absence of such testimony,

we cannot conclude that the district court’s evidentiary ruling was “arbitrary and



                                             31
irrational.” Noel v. Artson, 641 F.3d 580, 591 (4th Cir. 2011). Accordingly, the district

court did not abuse its discretion by excluding the evidence.

                                             IV.

       For these reasons, we affirm the district court’s evidentiary ruling regarding

Captain Byers’s testimony. However, the district court erred in applying an improperly

narrow definition of “similarly situated.” Therefore, we reverse the district court’s ruling

excluding Appellants’ statistical evidence proffered to prove discriminatory effect.

Because the record before us is insufficient for this court to determine whether the

proffered statistics establish Appellants’ claims as a matter of law, we remand to the

district court for further fact finding consistent with the proper standard described herein.

                         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED




                                             32
