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Chavez v. Illinois State Police, 251 F.3d 612 (2001)

49 Fed.R.Serv.3d 1127

251 F.3d 612

United States Court of Appeals,
Seventh Circuit.

Peso CHAVEZ and Gregory Lee, individually and on behalf of all persons similarly situated, Plaintiffs–
Appellants,
v.
The ILLINOIS STATE POLICE, Terrance W. Gainer, individually and in his official capacity as Director of the
Illinois State Police, Michael Snyders, individually and in his official capacity as Illinois State Police Operation
Valkyrie Coordinator, Edward Kresl, individually and in his official capacity as District Commander of the
Illinois State Police, and Larry Thomas, Daniel Gillette, Craig Graham, Robert P. Cessna, Robert Lauterbach,
and Dale Fraher, officers of the Illinois State Police, in their individual capacities, Defendants–Appellees.

Nos. 99–3691, 00–1462.

|
Argued Sept. 13, 2000.
|
Decided May 23, 2001.

Synopsis
African-American and Hispanic motorists brought putative class action asserting civil rights claims, alleging that State police
drug interdiction unit had practice of stopping and detaining motorists based on their race and without legally sufficient
cause. In a series of rulings, the United States District Court for the Northern District of Illinois, Blanche M. Manning, J.,
granted motions to dismiss or for summary judgment with respect to several claims, declined to certify a class or to permit a
new named plaintiff to be added, and ultimately granted motion to voluntarily dismiss remaining claims, 1999 WL 754681.
Plaintiffs appealed. The Court of Appeals, Kanne, Circuit Judge, held that: (1) Court lacked jurisdiction to review claims that
were voluntarily dismissed; (2) failure to rule on class certification before granting summary judgment dismissing equal
protection claims was not reversible error; (3) refusal to allow joinder of new plaintiff was within court’s discretion; (4)
motorists could potentially use statistics to show requisite discriminatory effect of State police conduct to support equal
protection claims; but (5) statistics relied on were inadequate to show such an effect; (6) motorists in any event failed to show
requisite discriminatory intent; (7) allegations failed to state claim for violation of constitutionally protected right to travel;
and (8) coordinator of unit was not subject to supervisory liability under § 1983.
 
Affirmed.
 

Opinion

KANNE, Circuit Judge.

In this civil rights lawsuit, a putative class action, plaintiffs claim that the drug interdiction unit of the Illinois State Police
(ISP), Operation Valkyrie, has a practice of stopping, detaining, and searching African–American and Hispanic motorists
based on their race and without legally sufficient cause or justification. The allegation before us, at its core, is that the ISP
engages in the practice of racial profiling. Racial profiling is generally understood to mean the improper use of race as a basis
for taking law enforcement action. Challenges to the practice of racial profiling have become increasingly prevalent; indeed,
this suit is part of a larger effort to challenge the practice nationwide. Defendants-appellees deny that they engage in racial

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Chavez v. Illinois State Police, 251 F.3d 612 (2001)

49 Fed.R.Serv.3d 1127

profiling, and claim that they instruct their officers not to use race in determining which motorists to stop, detain, and search.
 
Plaintiffs filed suit in August 1994, in the United States District Court for the Northern District of Illinois. Defendants
included the Director of the Illinois State Police, Terrance Gainer; the ISP Operation Valkyrie Coordinator, Michael Snyders;
the District Commander of the ISP, Edward Kresl; and several individual ISP troopers. Plaintiffs alleged numerous violations
of their rights and sought damages as well as declaratory and injunctive relief. They based their claims upon the Equal
Protection Clause of the Fourteenth Amendment; the right to travel provided by the Privileges and Immunities Clauses of
Article IV and the Fourteenth Amendment; the Fourth Amendment; Title VI of the Civil Rights Act of 1964 and the
administrative regulations effectuating that Title; and a variety of related supplemental state law provisions. They also sought
to impose supervisory liability for these violations upon several ISP personnel under 42 U.S.C. § 1983.
 
Through a series of rulings spanning the five years of litigation below, the district court dismissed the right to travel claim
and granted defendants’ motions for summary judgment on the equal protection and supervisory liability claims.
Additionally, the court determined that plaintiffs lacked standing to obtain injunctive relief, declined to certify a class of
Hispanic motorists stopped on the basis of race, denied plaintiffs’ motion to add a new named plaintiff to represent the
Hispanic class, and denied one of plaintiffs’ discovery related motions. In response to these rulings, plaintiffs moved to
voluntarily dismiss, with prejudice, their remaining claims. The court dismissed the Title VI regulatory claims pursuant to
Rule 16 of the Federal Rules of Civil Procedure, but stated that, if plaintiffs elected to dismiss their remaining claims, the
court would impose reasonable costs. Plaintiffs continued to request dismissal, thus the court issued an order dismissing
plaintiffs’ Fourth Amendment, Title VI, and supplemental state law claims, with prejudice and pursuant to Rule 41 of the
Federal Rules of Civil Procedure.
 
Plaintiffs now appeal the grant of summary judgment on their equal protection and supervisory liability claims, the dismissal
of named plaintiff Peso Chavez’s right to travel claim, the finding that they lacked standing to pursue injunctive relief, and
the district court’s denial of their motions to add a new plaintiff, to certify a class, and to take certain discovery. Plaintiffs
also challenge the propriety of requiring them to pay defendants’ costs as a precondition to dismissal.
 
Before we review the procedural and substantive legal challenges raised in this appeal, we will describe the Operation
Valkyrie program; detail the facts surrounding the stops, detentions, and searches of each of the named plaintiffs; introduce
the statistics plaintiffs have presented in their effort to show that defendants engage in racial profiling; and summarize the
relevant procedural history.

I. History

A. Operation Valkyrie

The Illinois State Police run a drug interdiction program entitled “Operation Valkyrie.” The program is “designed to acquaint
patrol officers with techniques which will enhance their capability to detect and apprehend drug couriers ... while focusing on
the enforcement of highway safety regulations.” Operation Valkyrie: An Officer’s Guide to Drug Interdiction Techniques i.
Since its inception in 1990, the ISP has assigned more than one hundred officers to Valkyrie teams that operate in eleven of
the ISP’s twenty-one districts. Non–Valkyrie officers also receive Valkyrie training in order to familiarize them with drug-
interdiction techniques. Master Sergeant Michael Snyders, the former statewide Operation Valkyrie Coordinator, testified
that Valkyrie officers only stop vehicles for traffic enforcement reasons (i.e. for traffic violations or other threats to traffic
safety). Once a vehicle is stopped, he explained, Valkyrie officers look for indicators of drug trafficking. These indicators are
numerous—indeed there is a list of twenty-eight factors in the Operation Valkyrie training manual—and include such things

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Chavez v. Illinois State Police, 251 F.3d 612 (2001)

49 Fed.R.Serv.3d 1127

as too little or too much luggage for the stated length of trip, maps from drug source cities or states, and air freshener.
Officers are also trained to look for verbal and non-verbal signs of stress and deception, such as nervousness and an overly
friendly demeanor. Snyders testified that when Valkyrie officers observe these indicators, they are trained to request consent
to search the vehicle. In 1992, Valkyrie officers requested permission to search in approximately fourteen percent of motorist
stops, and when requested, over ninety-eight percent of motorists granted consent.
 
Plaintiffs allege that race plays into the Valkyrie officers’ decision to stop a motorist—what we will term “pre-stop
profiling”—and into the decision to detain or search a motorist, and that no ISP policy prohibits troopers from using race as a
factor in making these determinations. As evidence of this, plaintiffs assert that certain ISP drug interdiction training
materials emphasize, through statistics, images, and examples, the alleged predominance of Hispanics among those highway
travelers carrying illegal drugs. They also point to the testimony of Trooper Robert Cessna, who testified that a motorist’s
race is one “indicator” that “you’ve got to keep in mind.”
 
Plaintiffs further assert that Operation Valkyrie grants troopers substantial discretion to decide which motorists to stop and
search. ISP training materials acknowledge that discretion can deteriorate into abusive practices, including racial
discrimination. Plaintiffs argue that ISP procedures for addressing citizen complaints and reviewing trooper enforcement
activity do not sufficiently curb an officer’s ability to impermissibly take race into account. When a complaint is filed, a case
number is typically assigned, a case is opened, and the complaint is processed. If, however, ISP personnel determine that a
complaint is not sufficient for further investigation or that another entity is already investigating the violation, no case is
opened. The ISP will not “open a case” when a citizen complains that he was stopped on the basis of race and issued a traffic
citation for an offense he did not commit because the ISP views this issue as one to be resolved by the courts. See Dep. of
Teresa Kettelkamp at 86–87 (former deputy director of the Division of Internal Investigation). Apparently, the ISP assumes
that the motorist will go to traffic court and allege racial prejudice as a defense to the ticket. In addition, the ISP Office of
Inspection and Audits does not investigate the issue of race in trooper enforcement activity.
 
The ISP presented evidence that Valkyrie officers are taught not to use race in determining what motorists to stop, detain, and
search. The training manual for Operation Valkyrie states that the “[ISP] has never endorsed, condoned or promoted the use
of any profiling system in its interdiction program.” See Operation Valkyrie: An Officer’s Guide to Drug Interdiction
Techniques i. Training sessions also included presentment of a videotape which emphasizes that drug couriers look “pretty
much like everyone else,” that it is difficult to characterize smugglers on the basis of nationality, and that ISP officers must
have a lawful reason to stop or search motorists.
 
During the early years of the Valkyrie program, some ISP districts attempted to monitor trooper discretion by collecting data
on the race of motorists searched by Valkyrie troopers. One reason for collecting such data, according to Snyders, was to
respond to potential questions about whether officers were targeting motorists because of their race. This data was also used
as a supervisory tool to ensure that team members were not concentrating on certain ethnic groups. Between 1990 and 1994,
monthly statistics in District Six, one of the ISP districts to collect such data, demonstrated that African–Americans and
Hispanics comprised over sixty percent of the motorists searched.
 
…

C. The Statistics

An ISP stop can generate several types of records. First, when an ISP officer makes a stop he must radio headquarters to
convey selected information, including the state and license plate number of the vehicle stopped. Second, if the ISP officer
issues a citation or a warning to one or more of the vehicle occupants, this fact is recorded in the “citations and warnings
database.” This electronic database includes the name of the individual receiving the citation or warning as well as the basis
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Chavez v. Illinois State Police, 251 F.3d 612 (2001)

49 Fed.R.Serv.3d 1127

for the action (such as speeding or an illegal lane change). Finally, in a limited number of circumstances an officer will
complete a “field report.” Field reports are typically completed when contraband is found, when a custodial arrest is made,
when canines are involved, or when there is damage to police equipment or injury to a trooper, though even in these
circumstances they are not always completed. When ISP officers use Valkyrie skills or obtain information of interest to the
Valkyrie program they are encouraged to fill out a field report and to mark it with a “V”— *626 these are referred to as the
“Valkyrie field reports.”
 
At plaintiffs’ request, the defendants provided the citations and warnings and the field reports databases to Temple
University’s Center for Public Policy. The Center analyzed this data and James Ginger and Martin Shapiro, plaintiffs’
experts, examined the Center’s results.2 Plaintiffs’ experts compared the percentage of whites, African–Americans, and
Hispanics in the ISP databases with the percent that each race is present in the Illinois population, based on data from the
1990 Census, and present on Illinois roads, as estimated by the Nationwide Personal Transportation Survey (NPTS). In
Shapiro’s opinion, the field reports indicated a systemic over-representation of African–Americans and individuals of
Hispanic origin in Valkyrie police activity. Ginger concluded that officers engaging in drug interdiction efforts selected a
significantly higher percentage of Hispanic drivers for discretionary enforcement efforts—defined as activities which give the
officer large amounts of latitude in determining what, if any, action to take—than did other ISP officers. 3
 

II. Analysis

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

D. The Fourteenth Amendment Equal Protection Claims

In November 1998, after over four years of litigation, the district court granted the defendants’ motion for summary judgment
on the plaintiffs’ equal protection claims. We review de novo grants of summary judgment. See Myers v. Hasara, 226 F.3d
821, 825 (7th Cir.2000). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, we
construe all facts and inferences in the light most favorable to the non-moving party, drawing all reasonable and justifiable
inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). If, however, the record as a whole “could not lead a rational trier of fact to find for the non-moving party, there is no
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Chavez v. Illinois State Police, 251 F.3d 612 (2001)

49 Fed.R.Serv.3d 1127

‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986); see also Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir.1998).
 
Plaintiffs assert that the ISP and individual ISP officers utilize impermissible racial classifications in determining whom to
stop, detain, and search. Were this proven, it would amount to a violation of the Equal Protection Clause of the Fourteenth
Amendment. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“[T]he Constitution
prohibits selective enforcement of the law based on considerations such as race.... [T]he constitutional basis for objecting to
intentionally discriminatory application of laws is the Equal Protection Clause.”). The Supreme Court, as well as federal
courts across the country, have begun to address the potential implications of racial profiling. See Illinois v. Wardlow, 528
U.S. 119, 120 S.Ct. 673, 681 n. 10, 145 L.Ed.2d 570 (2000) (discussing the conclusion of the New Jersey Attorney General
that “minority motorists have been treated differently than non-minority motorists during the course of traffic stops on the
New Jersey Turnpike”); United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir.2000) (en banc) (discussing
“[s]tops based on race or ethnic appearance”); Martinez v. Vill. of Mount Prospect, 92 F.Supp.2d 780, 782 (N.D.Ill.2000)
(“Racial profiling of any kind is anathema to our criminal justice system....”); United States v. Leviner, 31 F.Supp.2d 23, 33
(D.Mass.1998) (“Motor vehicle offenses, in particular, raise deep concerns about racial disparity.”). 7
 
Even civil rights litigation must, however, satisfy the requirements of our equal protection jurisprudence. To show a violation
of the Equal Protection Clause, plaintiffs must prove that the defendants’ actions had a discriminatory effect and were
motivated by a discriminatory purpose. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272–74, 99 S.Ct. 2282, 60
L.Ed.2d 870 (1979); Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264–66, 97 S.Ct. 555, 50 L.Ed.2d 450
(1977); Washington v. Davis, 426 U.S. 229, 239–42, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). We examine each element
in turn.
 

1. Discriminatory Effect

To prove discriminatory effect, the plaintiffs are required to show that they are members of a protected class, that they are
otherwise similarly situated to members of the unprotected class, and that plaintiffs were treated differently from members of
the unprotected class. See Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir .2000), cert. denied, 531 U.S. 1012, 121 S.Ct. 568,
148 L.Ed.2d 487 (2000); Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 944–45 (7th Cir.1996). Chavez and Lee may
show that the ISP treated them differently than other similarly situated individuals by naming such individuals or through the
use of statistics, an issue which we explore in greater depth below. See, e.g., United States v. Armstrong, 517 U.S. 456, 467,
116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (noting that the similarly situated requirement was met by the “indisputable
evidence” in Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985), that Blacks were 1.7 times as
likely as whites to suffer disenfranchisement under the law in question).
 
…

b. Use of Statistics to Show Discriminatory Effect

[32] [33]
The Supreme Court has long noted the importance of statistical analysis “in cases in which the existence of
discrimination is a disputed issue.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 52 L.Ed.2d
396 (1977). While few opinions directly acknowledge that statistics may be used to prove discriminatory effect, the Court has

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repeatedly relied on statistics to do just that. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 30 L.Ed. 220
(1886) (finding that a San Francisco ordinance banning the operation of laundries in wooden buildings was discriminatorily
applied to Chinese launderers where the city denied the petitions of some two hundred Chinese applicants who applied for
exemption from the ordinance, but granted all but one of the eighty petitions of the non-Chinese launderers who applied);
Hunter v. Underwood, 471 U.S. 222, 227, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (finding that the fact that a section of the
Alabama Constitution made disenfranchisement of blacks at least 1.7 times more likely than disenfranchisement of whites
was “indisputable evidence that the state law had a discriminatory effect on blacks as compared to similarly situated
whites”).9 Of course, parties may not prove discrimination merely by providing the court with statistical analyses. The
statistics proffered must address the crucial question of whether one class is being treated differently from another class that
is otherwise similarly situated. See, e.g., Schweiker v. Wilson, 450 U.S. 221, 233, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981)
(noting that the plaintiffs did not offer any “statistical support for a contention that the mentally ill as a class are burdened
disproportionately to any other class”). Further, “statistics are not irrefutable; they come in infinite variety and, like any other
kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.”
Teamsters, 431 U.S. at 340, 97 S.Ct. 1843.
 
The Supreme Court’s decision in Armstrong did not depart from this precedent. Armstrong settled a dispute among the
circuits by holding that criminal defendants bringing selective prosecution claims must show that similarly situated
individuals were not prosecuted, in order to obtain discovery in support of their claim. Armstrong, 517 U.S. at 468–69, 116
S.Ct. 1480. The decision reversed a Ninth Circuit opinion which held that a defendant did not have to demonstrate that the
government had failed to prosecute others who were similarly situated; indeed, this was in contrast to the holdings of
numerous other courts of appeals, including this one, that “require[d] the defendant to produce some evidence that similarly
situated defendants of other races could have been prosecuted, but were not.” Id. at 469, 116 S.Ct. 1480 (citing, inter alia,
United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985)). The Supreme Court made clear that the similarly situated
requirement could not be discarded, reaffirming that the requirement of showing discriminatory effect is a long established
requirement in our jurisprudence. Id. at 465, 116 S.Ct. 1480. The district court in this case correctly determined that the
Supreme Court rejected the statistics proffered by the plaintiffs in Armstrong. See Chavez v. Ill. State Police, 27 F.Supp.2d
1053, at 1066–67 (N.D.Ill.1998). The statistics were rejected, however, not because plaintiffs can never use statistics to prove
discriminatory effect, but because the particular statistics presented to the Court did not address the relevant issue. The
criminal defendants in Armstrong introduced an affidavit claiming that “in every one” of the twenty-four cases handled by
the public defender’s office in 1991 for violations of 21 U.S.C. §§ 841 and 846, the defendant was African–American. See
Armstrong, 517 U.S. at 459, 116 S.Ct. 1480. The Court explained: “The study failed to identify individuals who were not
black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted.” Id.
at 470, 116 S.Ct. 1480. Presumably, then, if the study had demonstrated that whites were arrested and could have been
prosecuted but were not, the Court would have found the study more useful. The Court pointed out that “respondents could
have investigated whether similarly situated persons of other races were prosecuted by the State of California and were
known to federal law enforcement officers, but were not prosecuted in federal court.” Id. In light of Armstrong, statistics
demonstrating that whites stopped for traffic violations were not detained and searched, even those who displayed indicators
of drug trafficking, while similarly situated African–American or Hispanics drivers were detained and searched, would be
sufficient to show discriminatory effect.
 
The district court noted that “at least three appellate court decisions have rejected statistical evidence that failed to identify
similarly situated individuals of races other than that of the equal protection plaintiffs.” Chavez v. Ill. State Police, No. 94 CV
5307, at 18 (N.D.Ill. July 10, 1997) (citing United States v. Turner, 104 F.3d 1180 (9th Cir.1997); United States v. Berger,
103 F.3d 67 (9th Cir.1996); United States v. Olvis, 97 F.3d 739 (4th Cir.1996)). While the courts in these cases rejected the
statistics presented, they did not reject, as a matter of law, the use of statistical evidence. In two of the cases the statistics
were simply held to be insufficient, just like in Armstrong. See Turner, 104 F.3d at 1184–85 (finding that the defendants—
who relied, in part, upon the same data found to be inadequate in Armstrong—had not shown “that similarly-situated
defendants of other races had been left unprosecuted”); Olvis, 97 F.3d at 745 (finding that defendant’s study “provided no
statistical evidence on the number of blacks who were actually committing crack cocaine offenses or whether a greater
percentage of whites could have been prosecuted for such crimes”). The defendant in the third case did not even attempt “to

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provide credible evidence that similarly situated persons of other races could have been prosecuted but were not.” Berger,
103 F.3d at 72. Additionally, it is worth noting that all three were criminal cases in which the defendants were seeking
discovery in support of a selective prosecution claim.
 
Even if Armstrong is read to require a criminal defendant in a selective prosecution case to provide the precise name of a
similarly situated defendant who was not prosecuted (a possible but unnecessary reading), the rationale behind such a
requirement does not apply with equal force in the context of a civil racial profiling claim. While the district court determined
that Chavez and Lee’s allegations of racial profiling were analogous to selective prosecution claims, we find that numerous
differences between the two types of claims make the former distinguishable.
 
First, the Armstrong court noted that “[t]he similarly situated requirement does not make a selective-prosecution claim
impossible to prove.” Armstrong, 517 U.S. at 466, 116 S.Ct. 1480. In a civil racial profiling case, however, the similarly
situated requirement might be impossible to prove. In a meritorious selective prosecution claim, a criminal defendant would
be able to name others arrested for the same offense who were not prosecuted by the arresting law enforcement agency;
conversely, plaintiffs who allege that they were stopped due to racial profiling would not, barring some type of test operation,
be able to provide the names of other similarly situated motorists who were not stopped.
 
A second distinction between this case and Armstrong is the factual context. The opinion in Armstrong allotted much of its
analysis to discussing the nature of selective prosecution claims and the considerations inherent in such claims. The analysis
is narrowly focused on the constitutional implications of interfering with the prosecutorial function, a factor at the heart of a
criminal defendant’s claim of selective prosecution, but not directly at issue in a plaintiff’s civil claim of racial profiling. The
Court described in detail the constraints imposed upon courts considering claims of selective prosecution:

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

....

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

Armstrong, 517 U.S. at 464–65, 116 S.Ct. 1480 (citations omitted).

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

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c. The Plaintiffs’ Statistics

Given our foregoing conclusions, we must now examine the statistics proffered by the plaintiffs. The pertinent inquiry is
whether Operation Valkyrie troopers stop, detain, and search African–American and Hispanic motorists when the troopers do
not stop, detain, and search similarly situated white motorists. Plaintiffs contend that this question must be answered in the
affirmative. They allege that their statistics show that African–American and Hispanic motorists are stopped at a significantly
higher rate than are white motorists, based upon the representation of these groups both in the Illinois population and on
Illinois roads, thus evidencing a disproportionate impact upon African–American and Hispanic motorists.
 
There has been extensive debate, before the district court and this court, as to the relative merits of these statistics.
Defendants contend that the population benchmarks used to determine the Hispanic and African–American populations in
Illinois are inaccurate, that the ISP databases used to determine what percentages of these groups are stopped by ISP officers
do not constitute a random sample of ISP stops, and that the plaintiffs’ experts did not take into account appropriate
confounding variables. The defendants also challenge the qualifications of plaintiffs’ two experts. We will assume for the
sake of argument that these experts are qualified because the district court did not address the issue.
 
The magistrate judge, in his report and recommendation, found that plaintiffs’ evidence “simply fails to prove what plaintiffs
contend it does.” Chavez v. Ill. State Police, No. 94 CV 5307, slip op. at 19 (N.D.Ill. July 10, 1997). He specifically cited the
deficiency of the field reports, finding they were “meaningless” because they were not compiled for every stop and,
therefore, did not comprise a random or regular sample of motorists stopped by the ISP. Id. The district judge did not
examine the merits of the statistics because she determined that, regardless of their merit, they could not salvage the
plaintiffs’ claims as a matter of law. See Chavez, 27 F.Supp.2d at 1065. Two years later, defendants moved to strike
plaintiffs’ experts’ reports under the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592–96,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court noted that it was “unclear why the defendants are raising the
Daubert issue for the first time now,” Chavez v. Ill. State Police, No. 94 CV 5307 (N.D.Ill. July 8, 1999), and denied the
motion without prejudice. Chavez v. Ill. State Police, No. 94 CV 5307, 1999 WL 592187, at *22 (N.D.Ill. Aug. 2, 1999). On
appeal, plaintiffs request that we remand to the district court for a thorough review of the statistics, if we determine that
statistics could be used to show discriminatory effect.
 
Remand is not necessary. First, the magistrate judge did consider the statistics. “Determining the validity and value of
statistical evidence is firmly within the discretion of the district court, and we will reverse its findings only if they are clearly
erroneous.” EEOC v. O & G Spring and Wire Forms Specialty Co., 38 F.3d 872, 876 (7th Cir.1994) (citing Pullman-
Standard v. Swint, 456 U.S. 273, 287–90, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982)). Second, though our reasons differ slightly
from those of the magistrate judge, it is clear that these statistics can not satisfy the discriminatory effect element of the
plaintiffs’ prima facie case—they are simply insufficient as a matter of law. As we have noted, expert analysis must be both
relevant and reliable, and the statistics here are neither. See Adams v. Ameritech Servs., Inc., 231 F.3d 414, 423 (7th Cir.2000)
(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).
 
We have already discussed the two pertinent ISP databases that contain records resulting from ISP stops: the “citations and
warnings” database and the “field reports” database. The citation and warnings database records every citation or warning
that is issued, including the name of the individual receiving the citation or warning and the basis for the action. The field
reports, in contrast, are only completed in certain limited circumstances such as when contraband is found, when a custodial
arrest is made, when canines are involved, or when there is damage to police equipment or injury to a trooper; though even
then, they are not always completed. Of the 1.8 million incidents in which citations or warnings were issued in the eleven
police districts with Valkyrie teams, 10 only 88,618 resulted in field reports. 11 Thus, for the relevant time period, less than five
percent of incidents which gave rise to a citation or warning resulted in a field report. Plaintiffs focused primarily on a subset
of the field reports—the “Valkyrie field reports.” These reports are generated when an ISP officer uses Valkyrie skills or
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obtains information of interest to the Valkyrie program. The officer is encouraged to fill out a field report and to mark it with
a “V.”
 
The ISP does not keep a comprehensive record of all motorists stopped; there is no database that tracks every stop, the race of
the parties involved, and whether a search took place. This is ultimately the type of information that would be useful in a suit
such as this, as it would clearly indicate what percentages of African–American and Hispanic motorists were being stopped
and searched on Illinois highways. Of course, under Armstrong, plaintiffs have to do more than simply proffer percentages of
stops, but we can defer this issue for the moment.
 
The Valkyrie field reports are the source for the bulk of the plaintiffs’ statistics, and were the basis of the equal protection
claims they presented to the district court. Plaintiffs assert that the number of Valkyrie field reports issued to Hispanic and
African–American motorists is more than two standard deviations over the expected norm, based upon the representation of
each of these groups in the population. Such a finding, if based upon appropriate statistical analysis, would be statistically
significant. See Adams v. Ameritech Services, Inc., 231 F.3d 414, 424 (7th Cir.2000) (“Two standard deviations is normally
enough to show that it is extremely unlikely ... that the disparity is due to chance....”); Mister v. Ill. Cent. Gulf R. Co., 832
F.2d 1427, 1431 (7th Cir.1987) (noting the “ ‘rule’ that findings should be accepted as ‘statistically significant’ when the
observations are more than two standard deviations away from the values” that would result if there was no discrimination).
 
We are reluctant, however, to derive any conclusions about the racial breakdown of those motorists stopped, detained, and
searched by Valkyrie officers based upon the Valkyrie field reports. First of all, plaintiffs have not told us how many
Valkyrie field reports there are, or how many were analyzed. One record document indicates that there were 306 field reports
completed by Valkyrie officers in 1992; plaintiffs then conducted a “random sample” of this data. There is no indication of
the total number of stops this is being compared to, thus it is impossible to tell if this sample size is sufficiently large to be
reliable. See Soria v. Ozinga Bros., Inc., 704 F.2d 990, 995 (7th Cir.1983) (noting that “[c]ourts in Title VII actions have
almost uniformly rejected statistical conclusions based upon such small samples”). Further, the field reports (and particularly
the Valkyrie field reports) are completed on a selective basis after limited types of enforcement activity. This type of non-
random sample might undermine the reliability of the statistics. See, e.g., United States v. Johnson, 185 F.3d 765, 769 (7th
Cir.1999) (explaining difficulties with nonrandom sampling); Bush v. Commonwealth Edison Co., 990 F.2d 928, 932 (7th
Cir.1993) (noting that the failure to examine a random sample of work records prevented the proffered statistics from
demonstrating a pattern of racial discrimination).
 
While the citations and warnings database—which includes all citations and warnings issued by ISP officers—could
potentially provide a more accurate estimation of the numbers of motorists stopped, detained, and searched, this database
does not record the race of the motorist. The numbers of Hispanics represented can be estimated through an analysis of
Hispanic surnames, but there is no mechanism for calculating the numbers of whites or African–Americans issued citations
or warnings. Without comparative racial information, plaintiffs cannot prove that they were stopped, detained, or searched,
when similarly situated whites were not.
 
The limitations of the field reports and citations and warnings databases only scratch the surface of potential problems with
the proffered statistics. The crux of the matter lies in the population benchmarks. As already noted, the plaintiffs compared
the numbers derived from the Valkyrie field reports with the representation of whites, African–Americans, and Hispanics
ostensibly in the Illinois population and on Illinois roads. We find that these population benchmarks cannot provide an
adequate backdrop for assessing the racial composition of drivers faced by Valkyrie officers, and thus cannot indicate
whether Valkyrie officers disproportionately stop, detain, and search Hispanics and African–Americans.
 
The first benchmark used by the plaintiffs was the 1990 Census. It is widely acknowledged that the Census fails to count
everyone, and that the undercount is greatest in certain subgroups of the population, particularly Hispanics and African–
Americans. See Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 322–23, 119 S.Ct. 765, 142 L.Ed.2d 797
(1999); Tucker v. Dep’t of Commerce, 958 F.2d 1411, 1412–13 (7th Cir.1992); David H. Kaye & David A. Friedman,
Reference Guide on Statistics, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 83, 98 (Federal Judicial Center

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ed., 2d ed.2000). We further note that the preliminary data from the 2000 Census indicates that the number of Hispanics and
Latinos living in the United States has increased by 57.9% over the past ten years. See U.S. Census 2000 Population and
Housing Tables, PHC T 1, tbl. 4, at http:// www.census.gov/population/www/cen2000/tablist.html (last visited April 18,
2001). The data also indicates that in 2000, 12.3% of the Illinois population was Hispanic or Latino, as compared to 7.9% in
1990. See id. at PHC–T–6, tbl. 5. This recent data is simply another indication that the 1990 Census may not have accurately
represented the Hispanic and African–American populations in Illinois for the relevant period.
 
Despite its flaws, the Census data may be the best population data available. It is utilized by the state of Illinois to conduct
redistricting, see ILL. CONSTT. art. IV, sec. 3(b), and is occasionally referenced by this court in order to determine the
representation of varying ethnic and racial groups in the population. See, e.g., Bradley v. Work, 154 F.3d 704, 706 (7th
Cir.1998); United States v. Barry, 71 F.3d 1269, 1272 n. 2 (7th Cir.1995). Even if it were entirely accurate, however, Census
data can tell us very little about the numbers of Hispanics and African–Americans driving on Illinois interstate highways,
which is crucial to determining the population of motorists encountered by the Valkyrie officers. Other surveyors have noted
as much, and have “sought to measure the racial composition of the traveling public on the road.” David A. Harris, THE
STORIES, THE STATISTICS, AND THE LAW: WHY “DRIVING WHILE BLACK” MATTERS, 84 MINN. L.REV. 265,
278 (1999) (discussing the study by Dr. John Lamberth of Temple University in which he constructed teams to “count[ ] the
cars on the road and tabulate[ ] whether the driver or another occupant appeared black”).
 
Perhaps to address this problem, the plaintiffs also relied upon the 1990 Nationwide Personal Transportation Survey (NPTS).
This is a nationwide telephone survey conducted every five years by the Federal Highway Administration of the U.S.
Department of Transportation, aimed at providing a “picture of passenger travel in the United States.” Nationwide Personal
Transportation Survey, at http://www.bts.gov/ntda/npts (last visited April 18, 2001). Plaintiffs utilized the NPTS to ascertain
the percentage of personal vehicle trips taken by African–American and Hispanic drivers, as well as the number of personal
vehicle miles driven by these groups. The data, however, was not intended to be used in this manner. The survey itself noted
that “the samples were designed to produce regional and national-level estimates. Thus, estimates for individual local areas ...
or States may not be based on large enough sample sizes and may be imprecise.” User’s Guide for the Public Use Tapes:
1990 Nationwide Personal Transportation Survey, II–4. The small sample sizes were noted within the survey material: only
868 households in Illinois participated, encompassing 1120 whites, 118 blacks, and 51 Hispanics. Due to the small numbers
of African–Americans and Hispanics surveyed, the NPTS data would suggest that there are even fewer African–Americans
and Hispanics in Illinois than is indicated by the Census. Clearly, the NPTS was not intended to provide and cannot
accurately provide racial breakdowns for the population of motorists on Illinois roads. Further, while the survey is
“particularly well suited for measuring repetitive, local travel,” Nationwide Personal Transportation Survey, at http://
www.bts.gov/ntda/npts (last visited April 18, 2001), it is less relevant to determining who is traveling on the interstate
highways. Neither can it indicate the number of non-Illinois residents traveling on the interstate highways.
 
The defendants’ expert claimed that the “insurmountable problem with the statewide tests is with the overall population
benchmark.” Donahue Report at 14. We agree. These population baselines are simply insufficient to determine the racial
makeup of motorists on Illinois highways. Thus, without reliable data on whom Valkyrie officers stop, detain, and search,
and without reliable data indicating the population on the highways where motorists are stopped, detained, and searched, we
cannot find that the statistics prove that the Valkyrie officers’ actions had a discriminatory effect on the plaintiffs.
 

2. Discriminatory Intent

We have found that Chavez has proven that defendants’ actions had a discriminatory effect on him but that Lee, who relied
solely on the plaintiffs’ statistics, has not. Even if we had determined that Lee proved effect, however, both plaintiffs must
still prove discriminatory intent in order to establish a violation of the Equal Protection Clause. See Washington v. Davis, 426
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U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir.2000), cert. denied, 531
U.S. 1012, 121 S.Ct. 568, 148 L.Ed.2d 487 (2000); Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 945 (7th Cir.1996).
Plaintiffs must show that the “decisionmakers in [their] case acted with discriminatory purpose.” McCleskey v. Kemp, 481
U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir.1996). “
‘Discriminatory purpose’ ... implies more than ... intent as awareness of consequences. It implies that the decisionmaker ...
selected or reaffirmed a particular course of action at least in part ‘because of’ ... its adverse effects upon an identifiable
group.’ ” McCleskey, 481 U.S. at 298, 107 S.Ct. 1756 (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct.
2282, 60 L.Ed.2d 870 (1979)); Hearne v. Bd. of Educ. of City of Chi., 185 F.3d 770, 776 (7th Cir.1999) (same).
 
Plaintiffs offer little evidence specific to their case that would support an inference that racial considerations played a part in
their stops, detentions, and searches. Instead they argue that their statistics compel an inference of purposeful discrimination.
We will consider the non-statistical evidence first, construed in the light most favor able to the plaintiffs.
 
Plaintiffs present evidence relating both to the named plaintiffs’ stops and to the ISP in general. During the stop and search of
Gregory Lee, it is asserted that Trooper Fraher justified the stop by saying that one can never tell with “you people.” Trooper
Cessna, a participant in the search involving Peso Chavez, said in his deposition that he was trained that a motorist’s race is
one “indicator” that “you’ve got to keep in mind.” The remainder of the evidence relates to the operations and practices of the
ISP: (1) The ISP will not “open a case” when a citizen who received a citation complains that he did not commit any offense,
but was instead stopped on the basis of race; (2) The ISP’s Office of Inspection and Audits does not investigate the issue of
race as it affects trooper enforcement activity; (3) Selected ISP drug interdiction training materials emphasize the alleged
predominance of Hispanics among those highway travelers carrying illegal drugs; (4) Through affidavit testimony one
trooper said that ISP officers are not prohibited from considering race as a factor, and another stated that race can be a
permissible factor to consider in deciding what motorists to stop (for example, in the context of an all-points bulletin or in
deciding to conduct a Terry stop); and (5) From 1990 to 1994 Snyders reviewed monthly statistics showing that African–
American and Hispanic motorists comprised more than sixty percent of motorists searched by Valkyrie officers in District
Six.
 
In order to carry their burden, Chavez and Lee must prove that they were stopped, detained, and searched because the
defendant officers involved in their stops were motivated by a discriminatory intent. Chavez points to one piece of indirect
evidence that his stop was racially motivated: Trooper Cessna, one of the officers who searched Chavez, testified that
sometimes race is an indicator to keep in mind. Other evidence weighs against drawing a conclusion of discriminatory intent.
As part of his investigation in the Koutsakis case, Chavez submitted a written memo to Nancy Hollander detailing the
February 18, 1993 stop and search; he stated that none of the troopers said anything which “appeared to be racially
motivated.” Further, Trooper Thomas listed Chavez’s race as “white” on the field report regarding Chavez’s stop and search,
even though there was a listing for “Hispanic.” There is nothing in the record to indicate that Thomas thought Chavez was
Hispanic and simply decided to list his race as white in an attempt to disguise his motivations.
 
Lee offers specific evidence of racial animus during his stop: the statements made by Trooper Fraher that one can never tell
with “you people.” While we certainly do not approve of racially insensitive remarks, such comments do not by themselves
violate the Constitution. See Sherwin Manor Nursing Ctr. v. McAuliffe, 37 F.3d 1216, 1221 (7th Cir.1994); Bell v. City of
Milwaukee, 746 F.2d 1205, 1259 (7th Cir.1984). “This does not mean, however, that the use of racially derogatory language
is without legal significance. Such language is strong evidence of racial animus, an essential element of any equal protection
claim.” DeWalt v. Carter, 224 F.3d 607, 612 n. 3 (7th Cir.2000); Bell, 746 F.2d at 1259. Lee has not proffered any evidence
of racial animus on the part of the other officers who allegedly stopped and searched him. The other officers who stated that
race might be a factor to consider had nothing to do with the stops of Lee or Chavez.
 
The allegations relating to the practices and procedures of the ISP do not demonstrate discriminatory intent in the stopping of
the named plaintiffs because plaintiffs have not shown that the ISP required or encouraged Valkyrie officers to racially
profile. There is actually evidence to the contrary. The first page of the Operation Valkyrie Officer’s Guide to Drug
Interdiction Techniques states:

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

Operation Valkyrie: An Officer’s Guide to Drug Interdiction Techniques at i. Even a stringent review of the tapes of Officer
Snyders’ training sessions shows that, during the sessions, Snyders discourages the use of race as an indicator as
“counterproductive.” One of plaintiffs’ experts—James Fyfe, professor in the Criminal Justice Department at Temple
University—stated that, based on the material he had reviewed, the ISP was doing a “terrific job of apprehending drug
offenders in a way that acknowledges people’s constitutional rights.” Plaintiffs’ Amended Response to Defendants’ Ninth
Request for Admission of Facts para. 8.
 
Just because the official policy is to decry racial profiling, however, does not automatically mean that defendants are free
from reproach:

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

State v. Ballard, 331 N.J.Super. 529, 752 A.2d 735, 744 (2000). In this case, though, we do not think that the one ISP
document referencing the high number of Hispanics involved in the drug trade visibly undermined the message that racial
profiling was illegal and to be avoided.
 
Plaintiffs’ non-statistical evidence does not prove that the defendants intended to discriminate against Chavez when they
stopped and searched him. Nor is there sufficient evidence to conclude that the three different troopers who stopped Lee did
so with intent to discriminate. We thus turn to plaintiffs’ statistical evidence.
 
Only in “rare cases [has] a statistical pattern of discriminatory impact demonstrated a constitutional violation,” McCleskey v.
Kemp, 481 U.S. 279, 293 n. 12, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (citing Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct.
125, 5 L.Ed.2d 110 (1960); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)), though “the Court has
accepted statistics as proof of intent to discriminate in certain limited contexts.” Id. at 293, 107 S.Ct. 1756. Specifically,
“[t]he Court has accepted statistical disparities as proof of an equal protection violation in the selection of a jury venire in a
particular district” and “has accepted statistics in the form of multiple regressions analysis to prove statutory violations under
Title VII of the Civil Rights Act of 1964.” Id. at 293–94; see, e.g., Int’l Bhd. of Teamsters, 431 U.S. 324, 97 S.Ct. 1843, 52
L.Ed.2d 396 (1977); EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872, 876 (7th Cir.1994). It is possible that
the Supreme Court would also accept statistics as sole proof of intent in the context of challenges to legislative redistricting.
See Hunt v. Cromartie, 526 U.S. 541, 548–49, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (finding that circumstantial evidence,
including statistical evidence, “tend[ed] to support an inference that the state drew its distinct lines with an impermissible
racial motive—even though [plaintiffs] presented no direct evidence of intent”); Smith v. Boyle, 144 F.3d 1060, 1067–68 (7th
Cir.1998) (Flaum, J. concurring in part and dissenting in part) (noting that Supreme Court cases addressing legislative

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redistricting indicate that discriminatory effect might suffice to establish intent); see also Gomillion v. Lightfoot, 364 U.S.
339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) (finding that the Alabama legislature violated the Fifteenth Amendment by altering
the city boundaries in a way that excluded 395 of 400 black voters without excluding a single white voter). None of these
situations, however, are before us. Instead, plaintiffs ask us to rely on their statistics, which allegedly show discriminatory
effect, to conclude that the ISP and the individual officer-defendants are intentionally discriminating against the plaintiffs. In
this context, statistics may not be the sole proof of a constitutional violation and neither Chavez nor Lee have presented
sufficient non-statistical evidence to demonstrate discriminatory intent.
 
The plaintiffs have thus not met their burden of showing that the ISP or its individual officers purposefully discriminated
against them. Because plaintiffs have not proven the prima facie elements of an equal protection claim under the Fourteenth
Amendment, we will affirm the district court’s grant of summary judgment in favor of the defendants.
 

III. Conclusion

Notwithstanding the disposition of this case, we recognize the destructive effects of racial and ethnic profiling by any police
agency. Plaintiffs have not proven that the Operation Valkyrie officers of the Illinois State Police stop, detain, and search
African–American and Hispanic motorists on the basis of racial or ethnic profiling. Yet, unfortunately, the oft-cited public
perception that race and ethnicity play a role in law enforcement decisions on Illinois highways will no doubt remain. The
ISP has asserted throughout this litigation that they do not condone race-based law enforcement action; much of the evidence
in this case indicates that they endeavor to conduct police activity through means that respect constitutional rights. How to
change public perception and demonstrate compliance with constitutional requirements is a matter the State of Illinois may
wish to consider.
 
On the basis of the foregoing analysis, we AFFIRM the district court’s grant of summary judgment in favor of the defendants
on plaintiffs’ equal protection and supervisory liability claims, and we AFFIRM the dismissal of Peso Chavez’s right to
travel claim.
 

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