                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

Nos. 02-2234 & 02-2248
SHARON ANDERSON, et al.,
                                            Plaintiffs-Appellees,
                                v.

MARIO CORNEJO, et al.,
                                                      Defendants.
Appeals of:

 SERGEI HOTEKO, PATRICK NOONAN,
  and ROBERT TROTTER

                         ____________
       Appeals from the United States District Court for the
          Northern District of Illinois, Eastern Division.
            No. 97 C 7556—William T. Hart, Judge.
                         ____________
 ARGUED SEPTEMBER 9, 2003—DECIDED JANUARY 21, 2004
                   ____________



 Before CUDAHY, EASTERBROOK, and RIPPLE, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Three of the defendants in
this Bivens action have taken interlocutory appeals, con-
tending that they are entitled to qualified immunity. The
plaintiffs are 90 American citizens who were searched at
O’Hare Airport between March 1996 and August 1999 when
reentering this country after foreign travel. They contend
2                                    Nos. 02-2234 & 02-2248

that Customs personnel chose them for non-routine
searches (pat-downs, strip searches, x-ray inspections, or
body-cavity searches) because of their race and sex (the
plaintiffs are black women) rather than because of reason-
able suspicion that they were violating the law. None of the
searches detected any contraband in the plaintiffs’ posses-
sion. What is more, plaintiffs contend, inspectors were more
likely to act on suspicion with respect to black women than
with respect to black men, white women, or any other
combination of attributes. The selection practices at O’Hare
between 1995 and 1999 (the period covered by the com-
plaint) thus violate the equal protection component of the
fifth amendment’s due process clause, plaintiffs maintain.
Appellants were managers and did not target any of the
plaintiffs for search or perform any of those searches. Their
argument starts from the rule that there is no vicarious
liability in Bivens litigation, which means that they may be
held liable only for their own conduct— and none of that
conduct would have alerted a reasonable person to the risk
of liability, appellants contend. If that is so, then they are
entitled to immunity. See, e.g., Saucier v. Katz, 533 U.S.
194 (2001); Anderson v. Creighton, 483 U.S. 635 (1987). But
the district court denied their motion for summary judg-
ment, see 225 F. Supp. 2d 834 (N.D. Ill. 2002), leading to
these appeals. See Behrens v. Pelletier, 516 U.S. 299 (1996).
  Because the first issue when a defendant invokes immu-
nity is whether the conduct alleged in the complaint
violates the Constitution, see Saucier, 533 U.S. at 201, ap-
pellants also ask us to determine whether plaintiffs have a
good claim against them. Plaintiffs see this as an opening,
because Saucier did not reconcile its merits-first approach
with the holding of Johnson v. Jones, 515 U.S. 304 (1995),
that a court of appeals lacks jurisdiction to consider a
challenge to the quality of the plaintiffs’ proof. The district
court must consider the merits first, but a court of appeals
Nos. 02-2234 & 02-2248                                      3

must stick to immunity, the argument goes. Yet Saucier
described an evaluation of the merits as part of the appel-
late task.
   Resolution of this problem starts with separating factual
and legal components of the claim for relief. “We didn’t
do it” may be a good defense, but it is unrelated to immu-
nity (a doctrine designed to protect public officials from
the effects of guessing wrong in a world of legal uncer-
tainty) and thus, Johnson held, not a proper ground of
interlocutory appeal. Johnson precludes the managerial
defendants from denying that the line inspectors used
race and sex as selection criteria. Plaintiffs believe that,
if we must assume that racial discrimination occurred on
defendants’ watch, and they did nothing to stop it, there
could be no point to the appeal. We should just let the
case proceed to trial. Recognizing the force of Johnson, the
managers concede (for purpose of the appeal only) that
some line inspectors at O’Hare behaved unconstitutionally,
and they further concede (again arguendo) that they did not
lift a finger to rectify the problem. There remains a bona
fide question about legal doctrine, and thus about immu-
nity: would reasonable persons, knowing what the manag-
ers knew (or were bound to learn), have recognized that the
Constitution required them to intervene? We may address
that question without transgressing Johnson, and as in
Saucier may give either of two answers: first, that taking
all evidence in the light most favorable to the plaintiffs
there was no requirement to act; or, second, that there is
such a requirement but that a reasonable person would not
have understood at the time that the law required this.
Thus it is possible, consistent with Johnson, to cover the
question whether the plaintiffs have a good legal theory as
well as the immunity defense; but, as Johnson and Saucier
hold, see 533 U.S. at 201, this must be done by taking the
evidence and reasonable inferences in plaintiffs’ favor. (Lest
plaintiffs think that we have overlooked one of their
4                                  Nos. 02-2234 & 02-2248

principal arguments, we add that the managers’ arguendo
concession that discrimination occurred does not waive any
of the contentions they present on appeal; the concession is
required not only by Johnson but also by the rule that a
party opposing a motion for summary judgment receives the
benefit of all reasonable inferences about disputed material
issues of fact.)
  Application of this normal summary-judgment standard
does not mean, however, that all evidence is equally helpful
to the plaintiffs. Plaintiffs point to data collected by the
General Accounting Office and described in its report U.S.
Customs Service: Better Targeting of Airline Passengers for
Personal Searches Could Produce Better Results (2000).
They submit that these data show systematic constitutional
violations by the Customs Service—the sort of violations
that managers must know about and act to prevent. The
district judge wrote that “Black women were . . . the
racial/gender group of United States citizens most likely to
be X-rayed (6.4%), a rate more than 8 times that of White
women (0.73%) and almost 12 times that of White men
(0.53%), as well as 39% higher than Black men (4.6%).” 225
F. Supp. 2d at 848. There were disparities by race, ethnic-
ity, and sex in selection for other kinds of non- routine
searches as well. Yet higher search rates for black women
were not matched by better results (implying that they were
not justified by reasonable suspicion in proportion to the
rate of search): “Of those Black women that were strip
searched, contraband was found on 27.6% of them, which is
a higher positive rate than for White men (25.1%) and
White women (19.5%), but a substantially lower positive
rate than for Black men (61.6%), Hispanic men (58.8%), and
Hispanic women (45.7%).” Id. at 848-49. The implication is
that Customs inspectors searched black women with less by
way of suspicion than they required before they would
search Hispanics or black men (though black women seem
to have been treated similarly to both white men and white
women).
Nos. 02-2234 & 02-2248                                    5

   These and similar data from the GAO’s report do not sup-
port any constitutional claim against the appellant man-
agers, for at least four reasons. First, the report was not
published until March 2000, while the last search contested
in this litigation occurred in August 1999. (During May
1999 the Customs Service announced a review of its criteria
for conducing non-routine inspections; plaintiffs do not
contest the policy that was implemented as a result of this
process.) Plaintiffs do not contend that the Customs Service
had any equivalent compilations in its possession earlier,
and there was accordingly no reason for the managers to
know these statistics in time to have done plaintiffs any
good. See 225 F. Supp. 2d at 860. The Constitution does not
require prescience. Second, the GAO’s data are national,
aggregate information; it is not possible to use the pub-
lished report to learn what happened at O’Hare. Third, the
report’s principal finding is that very few arriving passen-
gers were subject to non-routine searches. Of approximately
140,000,000 passengers arriving at U.S. airports from
abroad during 1997 and 1998, only 102,000 were subjected
to any kind of personal search. Better Targeting at 9.
Almost all black women, like almost all other passengers,
were admitted without any search. The GAO did not discuss
how the Customs Service selected the 102,000 from the 140
million; for all these data reveal, black women were
underselected for search compared with other groups. The
data to which the district court pointed—the 6.4%, 0.73%,
and so on, are the kinds of searches experienced by the
102,000. All of those 102,000 experienced some non-routine
search. That there were differences in precisely which kind
of search was used for which members of the group does not
help us with the principal issue in this case: were race and
sex (as opposed to reasonable suspicion of wrongdoing) used
to select, from among the 140 million, the 102,000 to be
searched? The GAO’s report sheds no light on that subject.
6                                   Nos. 02-2234 & 02-2248

  Fourth, these statistics show disparate impact, not dis-
parate treatment, and the equal protection guarantee is
concerned only with the latter. See Washington v. Davis,
426 U.S. 229 (1976). Differences in the sorts of search
carried out could stem from differences in the arriving pas-
sengers’ origins, itineraries, and other matters unrelated to
race or sex. And even disparities that cannot be chalked up
to random variance may have causes other than race, sex,
or another proscribed ground of decision. That’s the point of
decisions such as Personnel Administrator of Massachusetts
v. Feeney, 442 U.S. 256 (1979), which held that a veter-
ans’-preference program that bestowed 97% of its benefits
on men could not be condemned as sex discrimination.
Plaintiffs in Feeney had argued that because people intend
the natural and probable consequences of their acts, to
know that a program disfavors women is to intend to
disfavor women. The Supreme Court disagreed; it held,
instead, that “intent” (and thus disparate treatment) in
constitutional law means doing something because of,
rather than in spite of (or with indifference to), the prohib-
ited characteristic. 442 U.S. at 279. Veterans’- preference
programs are deferred compensation to veterans, compensa-
tion afforded in spite of its adverse effect on women, not
because of that effect; hence these programs do not violate
the Constitution, the Court held in Feeney. Similarly, the
knowledge of prosecutors (and judges) that most defendants
in crack-cocaine cases are black does not establish discrimi-
nation. To make out even a prima facie case of discrimina-
tion, the Court has held, a litigant must show that prosecu-
tors are failing to bring charges against white crack ped-
dlers similarly situated to the actual defendants. See
United States v. Bass, 536 U.S. 862 (2002); United States v.
Armstrong, 517 U.S. 456 (1996). Thus searches designed to
catch smugglers comport with the Constitution even if they
produce a disparate impact. See also Chavez v. Illinois State
Police, 251 F.3d 612 (7th Cir. 2001) (rejecting a claim that
Nos. 02-2234 & 02-2248                                       7

a statistical disparity in traffic stops is enough by itself to
establish racial profiling).
  Data from the GAO’s report do not imply that Customs
officials are searching black women (or any other group) but
not similarly-situated passengers in other groups. The
report’s outcome-by-group tables—we gave one example
above, concerning the success rate of strip searches—show
that Customs officials search black women with (on aver-
age) the same degree of suspicion that leads them to search
white women or white men. A 27.6% success rate for a
particular kind of border search is not to be sneezed at. It
may imply that the Customs officials are conducting too few
searches, not too many. (The GAO recommended that the
Customs Service increase the number of searches in
high-success-rate categories.) Other searches, with far lower
rates of success, have been held constitutional. See, e.g.,
United States v. Martinez-Fuerte, 428 U.S. 543 (1976)
(0.12% success rate); Michigan Department of State Police
v. Sitz, 496 U.S. 444 (1990) (1.6% success rate). If about
0.1% of black women returning from foreign travel are
smuggling, and the agents select so carefully that 28% of
those searched are caught with contraband, where’s the
beef? What this principally means is that many others who
could have been searched (say, those with a 10% chance)
are being admitted to the country without any extra at-
tention. That the success rate for strip searches of black
men is lower could mean that they were easier to catch.
That is to say, perhaps there were inframarginal black men
whose smuggling was more obvious and therefore was
detected by pat-down searches. Then even if, at the margin,
black men and women stopped for non-routine inspection
were equally likely to be mules, the success rate for black
women subjected to the more intrusive searches would be
higher, without implying sex discrimination, because the
higher-probability black men had already been caught. The
8                                   Nos. 02-2234 & 02-2248

same analysis may apply to differences in success rate
across racial and ethnic groups. Thus differences in success
rate do not necessarily show even disparate impact. See Jeff
Dominitz, How Do the Laws of Probability Constrain
Legislative and Judicial Efforts to Stop Racial Profiling?, 5
Am. L. & Econ. Rev. 412 (2003).
  Because the data in the GAO’s report do not imply that
any of the defendants engaged in (or had knowledge of)
discrimination based on race or sex, we must analyze
separately what each of the three appellants may have
known or done. Robert Trotter is the first. Between June
1997 and February 1999, Trotter was the Assistant Com-
missioner of Field Operations. Based in Washington, D.C.,
Trotter reported directly to the Commissioner of Customs.
The district court granted summary judgment in Trotter’s
favor except for claims raised by any plaintiff strip searched
after July 21, 1998. On that date Trotter received an email
message from Garrett Fee, his immediate subordinate (with
responsibility for the Midwest, including O’Hare Airport),
telling him that Senator Carol Mosley Braun had sched-
uled, and then cancelled, a meeting to discuss passen-
ger-search practices at O’Hare. That email, which noted
that 54 black women arriving from Jamaica had been
searched during 1997, should have led Trotter to inquire
whether searches had been based on race or sex, the district
court thought. We need not decide whether this is a good
constitutional theory, because plaintiffs’ appellate brief
abandons the suit against Trotter: “Only one plaintiff was
strip searched after July 21, 1998 and plaintiffs have
decided not to challenge the appeal from the denial of
immunity for strip searches after July 21, 1998.” Brief 1
n.1. We read this as a promise to dismiss the complaint
with respect to Trotter, and on that understanding we need
not consider the substance of his arguments.
Nos. 02-2234 & 02-2248                                     9

  Sergei Hoteko, the second appellant, was Chief Inspector
of Passenger Operations for the Port of Chicago between
July 1995 and June 1999. On May 24, 1997, five passengers
arriving from Jamaica (four of them black women) were
found to be carrying concealed drugs on (or in) their
persons. During the ensuing four months, black women ar-
riving from Jamaica were subject to non-routine searches
more frequently. Between January 1995 and May 14, 1997,
about 9.5% of all strip searches at O’Hare were of black
women; that figure rose to 16.2% between May 15 and
September 15, 1997, and fell to 8.7% for September 16,
1997, through April 2000. The district court concluded that
this four-month peak violated the Constitution and that a
reasonable jury might think Hoteko responsible for it. 225
F. Supp. 2d at 851-52, 863. Hoteko held weekly meetings
with O’Hare’s customs inspectors and their supervisors.
Plaintiffs surmise (and the district judge agreed) that the
inspectors may have informed Hoteko at one of these
meetings about the successful searches of passengers from
Jamaica, and that Hoteko then may have urged them to
conduct more. So far as we can see, there is no evidence to
support either proposition.
  Perhaps Johnson v. Jones precludes a close search of the
record to find out just what Hoteko knew and what he told
his subordinates to do. It does not, however, preclude a
strictly legal ruling: That urging inspectors to conduct more
of a kind of search that has been successful does not violate
the Constitution. Plaintiffs do not contend that Hoteko told
any inspector to single out black women. They contend,
rather, that Hoteko and other persons at the meeting would
have discussed multiple characteristics of the five persons
caught smuggling on May 24, 1997: race; sex; age; occupa-
tion; origin of travel; length of stay; explanation for trip;
number, timing, and destination of other international
journeys; how and when the tickets were purchased; and
10                                  Nos. 02-2234 & 02-2248

other details. Nothing in this episode suggests that anyone
was selected because of race or sex, as opposed to reason-
able suspicion that smuggling was ongoing. Plaintiffs have
offered no statistical analysis of the data; for all we know
(and for all Hoteko could have known), race and sex played
no explanatory role. These attributes may have been
correlated with others that are in turn linked to the proba-
bility of finding contraband. As we have pointed out,
disparate impact does not imply disparate treatment, and
plaintiffs have offered nothing to show that Hoteko knew
about, or urged anyone to practice, disparate treatment.
This evidence therefore would not allow a reasonable jury
to conclude that Hoteko sponsored, encouraged, or failed to
stop, disparate treatment of arriving passengers. Plaintiffs’
contention that Hoteko attended other meetings at which
the race and sex of persons searched was discussed adds
nothing; Bass, Armstrong, and Feeney show that knowledge
of disparate impact (if that can be imputed to Hoteko) is not
knowledge of, let alone support for, disparate treatment.
   Plaintiffs tell us that Hoteko “paid no attention to the
efficacy of Customs searches” (Br. 14), which goes far to
demonstrate that he cannot have engaged in disparate
treatment of black women. According to plaintiffs, however,
what this shows is that Hoteko “turned a blind eye” toward
the problem and thus became liable. Opinions often say
that averting one’s eyes for fear of what one would see is a
form of knowledge, e.g., United States v. Ramsey, 785 F.2d
184 (7th Cir. 1986), but lest this turn negligence into intent
it is important to emphasize the “fear” part of the formula:
The ostrich must know that there is danger, before an
inference of intent may be drawn. See, e.g., United States v.
Giovannetti, 919 F.2d 1223 (7th Cir. 1990). What plaintiffs
allege, and what the district court found that the record
could support, is that Hoteko was ignorant; but there is no
reason to think that he suspected that the inspectors were
Nos. 02-2234 & 02-2248                                     11

engaged in race or sex discrimination and then tried to
shield himself from guilty knowledge. Without that level of
suspicion, there can be no deliberate ignorance and no
imputation of knowledge.
  Hoteko supervised Patrick Noonan, the third appellant.
Noonan, the Passenger Service Representative at O’Hare
Airport, was in charge of the large staff of inspectors who
dealt with arriving passengers. The district court concluded
that Noonan could be culpable for failing to act on com-
plaints from arriving passengers alleging that inspectors
engaged in discrimination. See 225 F. Supp. 2d at 853-55,
862-63. About 3 million passengers arrive at O’Hare each
year from foreign nations; of these, about 30,000 are
selected for secondary screening, and a tenth of that num-
ber to personal searches. Between December 1996 and
February 1999, when approximately 70,000 persons were
referred to secondary screening, 12 filed written complaints
asserting that an inspector had engaged in racial discrimi-
nation. Noonan’s job includes responding to such complaints
from passengers. As the judge saw things, the record would
permit a jury to find that Noonan “repeatedly performed
superficial and inadequate investigations.” 225 F. Supp. 2d
at 862. Most of these 12 complaints asserted that the
inspectors had discriminated against black passengers, a
charge that the district judge found unsupported by evi-
dence (it was black women, not all blacks, who were
searched disproportionately often). Ibid. Nonetheless, the
judge held, “if Noonan had acted properly, the discrimina-
tory conduct of specific Customs inspectors may have been
curtailed and it is even possible that findings of discrimina-
tory conduct would have sooner led to the implementation
of institutional reforms.” Ibid.
  We may assume, as the district court concluded, that
Noonan “repeatedly performed superficial and inadequate
investigations.” Yet, as the district judge recognized, few of
12                                  Nos. 02-2234 & 02-2248

the 12 complaints alleged the combination of race and sex
discrimination that concerns plaintiffs. This makes it
impossible to task Noonan with deliberate indifference to-
ward the complained-of discrimination. “Deliberate indiffer-
ence” means subjective awareness. See Farmer v. Brennan,
511 U.S. 825 (1994). It is not enough, the Court held in
Farmer, that the public official ought to have recognized the
problem. Instead, “the official must both be aware of facts
from which the inference could be drawn that [there is] a
substantial risk of [a constitutional shortcoming], and he
must also draw the inference.” Id. at 837. The district court
did not apply this standard to Noonan’s conduct, and our
independent review (applying Saucier’s merits-first ap-
proach) leads to the conclusion that the record does not
demonstrate that, by failing to investigate a handful of
complaints competently, Noonan displayed deliberate in-
difference to the sort of discrimination alleged here. This
record evinces nothing more than negligence.
  What we have said so far covers the district court’s
explanation for keeping Noonan and Hoteko in the case.
Plaintiffs have all but abandoned the district judge’s rulings
concerning Hoteko, however. Instead of defending the
ground on which they prevailed, plaintiffs offer a number of
arguments that were presented to, and rejected by, the
district court. They are entitled to do so; any argument
presented to the district court may be urged in support of
the judgment without need to take a cross-appeal. See
Massachusetts Mutual Insurance Co. v. Ludwig, 426 U.S.
479 (1976). Plaintiffs contend, for example, that, as
Noonan’s supervisor, Hoteko is charged with the informa-
tion that Noonan should have procured by better investiga-
tion. This is a request for vicarious liability, which is not
allowed; at all events, our decision in Noonan’s favor
redounds to Hoteko’s benefit as well. Plaintiffs assert that
Hoteko knew even apart from the events of May 24, 1997,
Nos. 02-2234 & 02-2248                                    13

that black women were being searched in disproportionate
numbers; once again, however, knowledge of disparate
impact is not knowledge of disparate treatment. According
to plaintiffs, one line inspector had complained to Hoteko
that others were discriminating. Hoteko referred this com-
plaint to an internal investigator, who determined that it
was unfounded. The district court sensibly concluded that
the incident cannot be relied on to show that Hoteko knew
about, or was culpable for, inspectors’ discrimination. 225
F. Supp. 2d at 855-56. Likewise the district judge rejected
plaintiffs’ contention that Hoteko may be treated as a
discriminator because he testified by deposition (allegedly
incorrectly) that certain data were not compiled into tabular
form until 1998, and that he therefore lacked access to
them. Id. at 853. None of these circumstances, individually
or collectively, justifies a departure from the norm that
there is no vicarious liability in Bivens cases. There may
well have been race or sex discrimination at O’Hare Airport,
but the managerial defendants are not liable on account of
discrimination practiced by the line inspectors.
  The decision of the district court with respect to Hoteko
and Noonan is reversed. The decision with respect to
Trotter is vacated, and the matter is remanded so that the
plaintiffs may dismiss their complaint with respect to him.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-21-04
