IN THE SUPREME COURT OF NORTH CAROLINA
No. 197PA20-2
Filed 1 September 2023
STATE OF NORTH CAROLINA
v.
JEREMY JOHNSON
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, No. COA19-529-2 (N.C. Ct. App. Dec.
31, 2020) (unpublished), affirming an order entered on 14 November 2018 by Judge
A. Graham Shirley in Superior Court, Wake County, denying defendant’s motion to
dismiss. Heard in the Supreme Court on 27 April 2023.
Joshua H. Stein, Attorney General, by Matthew Tulchin, Special Deputy Attorney General, for the State-appellee.
Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant Appellate Defender, for defendant-appellant.
Elizabeth Simpson for Emancipate NC, amicus curiae.
Johanna Jennings and Emily Coward for The Decarceration Project, amicus curiae.
PER CURIAM.
AFFIRMED.
Justices BERGER and DIETZ did not participate in the consideration or
decision of this case. STATE V. JOHNSON
Earls, J. dissenting
Justice EARLS dissenting.
I. Introduction
In 1999, the General Assembly decided it was important to require the
collection of traffic stop data to assess racial discrimination in the same context.
Accordingly, it passed N.C.G.S. § 143B-903, which became the first law nationally to
require law enforcement to record the race of every person subjected to a traffic stop.
An Act to Require the Division of Criminal Statistics to Collect and Maintain
Statistics on Traffic Law Enforcement, S.L. 1999-26, § 1, 1999 N.C. Sess. Laws 27
(current version at N.C.G.S. § 143B-903); Frank R. Baumgartner et al., Suspect
Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race 35 (2018)
[hereinafter Suspect Citizens]. Supporters and opponents of the law agreed: its
purpose was to determine whether police officers discriminated on the basis of race
in choosing who to stop for traffic offenses.1 See id. at 36–45. Thus, the required data
1 Section 143B-903 was passed in response to public concern that police punished
individuals for “driving while black,” Suspect Citizens, at 36–38, and at the urging of black Senators who believed the data would “put[ ] the spotlight on something that is occurring in our state. And if it is not occurring, we simply need to say to our law officers we are glad it is not of the magnitude that we think.” Id. at 41. Representatives opposing the law similarly perceived it as providing information on racial discrimination, arguing the law was unnecessary because “[g]ood management in the patrol ought to be able to tell who’s racist.” Id. at 45; see also Senate Judiciary II Committee Meeting Minutes, Feb. 25, 1999 (considering a News and Observer article titled, “Who’s being stopped?,” stating that black North Carolinians reported “they routinely are stopped under flimsy pretexts and their vehicles searched for drugs far more often than demographics would indicate is fair”); House Judiciary I Committee Meeting Minutes, Mar. 25, 1999 (explaining that while the law “does not accuse
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Earls, J., dissenting
collected under N.C.G.S. § 143B-903 includes, inter alia, “the race or ethnicity” of the
driver.
In the 2001–2002 session, Senate Bill 147 broadened the mandate from the
State Highway Patrol to almost all law enforcement agencies. S.B. 147, 2001 Sess.
(N.C. 2001); Suspect Citizens, at 47. In 2009, the North Carolina General Assembly
expanded the requirements of N.C.G.S. § 143B-903 by passing an Act to Amend the
Law Requiring the Collection of Traffic Law Enforcement Statistics in Order to
Prevent Racial Profiling and to Provide for the Care of Minor Children When Present
at the Arrest of Certain Adults, S.L. 2009-544, § 1, 2009 N.C. Sess. Laws 1480
(amending an earlier version of N.C.G.S. § 143B-903 which was codified at N.C.G.S.
§ 114-10.01). These changes specified in part that the data collected include a unique
but anonymous ID number representing the officer involved in the traffic stop. Id. §
1, 2009 Sess. Laws at 1481.
In this case, defendant Jeremy Johnson draws on data collected pursuant to
N.C.G.S. § 143B-903 to support his claim that the officer who decided to approach
him as he was sitting in his car did so at least in part because of his race. The
questions before this Court are (1) what legal framework applies to selective
enforcement claims, and (2) whether evidence that an officer stopped far more black
drivers than white drivers allows a selective enforcement claim to proceed. Because
any agency of stopping people because of their race, . . . this does mean it is not occurring”).
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I disagree with the Court of Appeals’ answers to both of these questions, I dissent
from the majority’s per curiam opinion affirming the Court of Appeals for lack of
prejudicial error.
The United States Constitution and the North Carolina Constitution require
equal protection under the law for all people. U.S. Const. amend. XIV; N.C. Const.
art. I, § 19. In Whren v. United States, the United States Supreme Court explained
that the Fourteenth Amendment’s Equal Protection Clause “prohibits selective
enforcement of the law based on considerations such as race.” 517 U.S. 806, 813
(1996); see also Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886) (selective enforcement
of a facially neutral law against a particular race of persons violates equal protection).
In State v. Ivey, our Court acknowledged that selective enforcement based on race, in
the context of a traffic stop, violates the Equal Protection Clause. 360 N.C. 562, 564
(2006), abrogated in part on other grounds by State v. Styles, 362 N.C. 412 (2008).
What is more, in Ivey, our Court made clear that it would not “tolerate discriminatory
application of the law based upon a citizen’s race.” Id. at 564 (providing this statement
in the context of allegations that Ivey involved “a case of ‘driving while black’”2).
2 “‘Driving while black’ refers to the charge that police stop, question, warn, cite or
search African American citizens because of their race.” State v. Ivey, 360 N.C. 562, 564 (2006) (cleaned up). Furthermore, as documented in the House Judiciary I Committee Meeting Minutes on S.B. 76, Senator Ballance noted that in North Carolina, “in some circumstances, people are being profiled.” House Judiciary I Committee Meeting Minutes, Mar. 25, 1999. However, Senator Ballance went on to explain that this issue was not limited to North Carolina and that at the time, there had been two lawsuits in Maryland involving racially motivated traffic stops. Id. During the bill’s discussion, Senator Ballance also pointed to institutional procedures that encouraged racially motivated traffic stops, noting that troopers
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Accordingly, through the above referenced Act (S.L. 2009-544), N.C.G.S.
§ 143B-903, our federal and state constitutions, and our Court’s own precedent, this
Court and both our federal and state governments have been clear: selective
enforcement based on race is a violation of the law. However, by affirming the Court
of Appeals opinion in this case, which stated that the data collected under N.C.G.S. §
143B-903 is not sufficient to establish a racially selective enforcement claim, our
Court has effectively rendered that fundamental principle meaningless. If litigants
are unable to ever prove a selective enforcement claim, our federal and state Equal
Protection Clauses, along with the reasoning for the collection of data required by
N.C.G.S. § 143B-903, are nothing more than parchment barriers. See United States
v. Jewel, 947 F. 2d 224, 240 (7th Cir. 1991) (Easterbrook, J., concurring) (stating that
if the exclusionary rule is not applied at sentencing “the constitutional ban on
unreasonable searches and seizures will become a parchment barrier”); The
Federalist No. 48 (James Madison) (arguing that while laws may provide written
protections, written guarantees may not always stop the majority from denying rights
to minorities).
II. Background
Officer B.A. Kuchen of the Raleigh Police Department arrested Mr. Johnson in
the early morning hours of 22 November 2017. According to his testimony, Officer
in New Jersey had testified to being “coached to make race-based profile stops to increase their criminal arrests.” Id.
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Kuchen was patrolling the Raleigh North Apartments in his car. As he drove through
the complex’s parking lot, he noticed Mr. Johnson—a black man—sitting inside of a
Mustang in a marked parking spot. Officer Kuchen observed Mr. Johnson slide under
the steering wheel “as much as [he] could to obscure my view of [his] person inside of
that vehicle.” A “no trespassing” sign was posted approximately five feet from Mr.
Johnson’s car. According to Officer Kuchen, he approached Mr. Johnson “[t]o address
the potential of trespassing, being under a no trespassing sign, and the behavior of
attempting to obscure himself from me as I drove by.”
Officer Kuchen stopped his car in the road and walked toward Mr. Johnson,
shining a flashlight. Mr. Johnson began to exit the car. At that point, Officer Kuchen
claimed to smell marijuana. He ordered Mr. Johnson to remain in the car, but Mr.
Johnson continued to exit his vehicle. Officer Kuchen commanded Mr. Johnson to
stop moving and approached to handcuff him. By then, another officer had arrived to
assist Officer Kuchen. Mr. Johnson pulled away from the officers and ran ten to
fifteen feet before they tackled him to the ground and handcuffed him. In a search
incident to arrest, officers found cocaine and marijuana.
Officer Kuchen had recently finished field training. As a new patrol officer, he
recognized that his duties were to answer 911 calls and “conduct proactive criminal
patrol.” The Raleigh North Apartments previously had entered into an agreement
with the Raleigh Police Department, requesting help in keeping trespassers off its
property. Officer Kuchen was aware of this agreement.
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On 5 March 2018, a Wake County grand jury indicted Mr. Johnson for
possession of cocaine, possession of marijuana up to one-half ounce, and resisting a
public officer. Mr. Johnson moved to suppress the evidence against him and dismiss
all charges based in part on the violation of his Equal Protection rights. Mr. Johnson’s
claim was that Officer Kuchen approached and detained him because of his race.
At the suppression hearing, defendant called Ian Mance, who testified that he
used N.C.G.S. § 143B-903 data to examine Officer Kuchen’s previous traffic stops.
Mance determined Officer Kuchen’s ID number with high confidence by cross-
referencing information from North Carolina’s criminal court database, the
Automated Criminal/Infractions System (ACIS), with the N.C.G.S. § 143B-903 data.
The State does not argue that Mance’s identification of Officer Kuchen was incorrect.
Mance found Officer Kuchen had stopped 299 drivers, 245 of whom were black
(about 82%). Subsection 143B-903(a)(15) requires officers to record the geographic
location of each traffic stop only by the “city or county in which the stop was made,”
not by a specific location within a city, so Mance could not have determined where
any of these stops occurred. Out of all Raleigh Police Department traffic stops since
2002 (nearly one million stops), 46% were of black drivers. That number, Mance
noted, outpaced Raleigh’s population of black citizens. According to the 2016 U.S.
Census Data, just 28% of Raleigh residents were black. Mark Taylor, an intern at the
Wake County Public Defender’s Office, also testified. He explained how he searched
the ACIS and discovered that, of the 204 cases listing Officer Kuchen as the
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complainant, 166 of the people charged were black—a staggering 81.4%.
As Officer Kuchen recounted at trial, he started his field training in May 2017
and split his time between the Raleigh Police Department’s southeast and northwest
districts. When he rode with a supervisor during his training, Officer Kuchen,
explained, he initiated most of the stops. After completing his training, Officer
Kuchen began patrolling on his own in October 2017. Although he was assigned to
the southeast district, he did not have a specific beat, choosing instead to “float
around” the entire district.
After the evidentiary hearing, Judge A. Graham Shirley denied Mr. Johnson’s
motions. On appeal, the Court of Appeals applied a three-part, burden-shifting
framework common to equal protection claims. It concluded that Mr. Johnson had
not met his initial burden to show prima facie discrimination because the statistics
did not include
appropriate benchmarks from which we can determine discriminatory effect or purpose. Without knowing the demographics of southeast Raleigh—the district Officer Kuchen was assigned and where this stop occurred—there is no adequate population benchmark from which we can assess the racial composition of individuals and motorists “faced by” Officer Kuchen.
State v. Johnson, No. COA19-529-2, 2020 WL 7974001, at *8 (N.C. Ct. App. Dec. 31,
2020) (unpublished). Therefore, the Court of Appeals affirmed the trial court’s denial
of Mr. Johnson’s motion to suppress. Id. at *9.
III. Standard of Review
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Constitutional errors are reviewed de novo. State v. Johnson, 379 N.C. 629,
634 (2021). When examining a trial court’s factual findings, this Court asks whether
they are supported by competent evidence. State v. Cooke, 306 N.C. 132, 134 (1982).
IV. Legal Framework for Selective Enforcement
The U.S. Constitution “prohibits selective enforcement of the law based on
considerations such as race.” Whren, 517 U.S. at 813 (declaring that a Fourth
Amendment challenge of a traffic stop as racially motivated should have been brought
under the Equal Protection Clause); Ivey, 360 N.C. at 564 (citing Whren to conclude
that “this Court will not tolerate discriminatory application of the law based upon a
citizen’s race”). This Court has never addressed whether the North Carolina
Constitution contains a similar right, but here the majority affirms the Court of
Appeals decision finding such a right, and I agree. See N.C. Const. art. I, § 19 (“No
person shall be denied the equal protection of the laws; nor shall any person be
subjected to discrimination by the State because of race, color, religion, or national
origin.”).
To address selective enforcement claims some federal courts apply United
States v. Armstrong, 517 U.S. 456 (1996), which created an intentionally strenuous
discovery standard for selective prosecution (not enforcement) claims. See, e.g.,
Johnson v. Holmes, 782 F. App’x 269, 276 (4th Cir. 2019) (applying Armstrong to a
selective enforcement claim); United States v. Alcaraz-Arellano, 441 F.3d 1252, 1263–
65 (10th Cir. 2006) (same); see also Armstrong, 517 U.S. at 464 (“[T]he showing
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necessary to obtain discovery should itself be a significant barrier to the litigation of
insubstantial claims.”). To earn discovery, Armstrong requires a defendant to provide
evidence of similarly situated people of other races who the State could have
prosecuted but did not. Id. at 465–66. The ultimate, post-discovery conclusion relies
on “ordinary equal protection standards”: the evidence must show a “discriminatory
effect and that it was motivated by a discriminatory purpose.” Id. at 465 (cleaned up).
Other courts adopt Armstrong’s approach of requiring a pre-discovery showing
of discrimination but find that Armstrong’s similarly situated requirement sets too
high a bar for selective enforcement claims. See, e.g., United States v. Sellers, 906
F.3d 848, 855–56 (9th Cir. 2018); see generally Alison Siegler and William Admussen,
Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987 (2021)
(arguing that Armstrong sets too high a bar for discovery). These courts
have suggested that the presumptions of regularity and immunity that usually attach to official prosecutorial decisions do not apply equally in the less formal setting of police arrests. They’ve reasoned, too, that comparative data about similarly situated individuals may be less readily available for arrests than for prosecutorial decisions, and that other kinds of evidence . . . may be equally if not more probative in the [enforcement] context.
Nieves v. Bartlett, 139 S. Ct. 1715, 1733–34 (2019) (Gorsuch, J., concurring in part
and dissenting in part) (concluding that the relevance of Armstrong to selective
enforcement remains an open question). Courts that purportedly do not ease
Armstrong’s requirements may nevertheless use a lenient understanding of the
similarly situated requirement where, as in the present case, a defendant attempts
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to meet their burden using statistical evidence that a police officer stopped a
disproportionately high number of black drivers. See Johnson, 782 F. App’x at 282.
This is likely because a strict understanding of the similarly situated requirement
would effectively bar selective enforcement claims in these cases, given the State
“does not (and could not) record the races of specific drivers who could have been
stopped but were not.” See id. But a more lenient understanding of the similarly
situated requirement makes it redundant: evidence showing discrimination also
supports an inference of similarly situated individuals who were treated differently.
See id. (“[T]he percentage of white drivers stopped and ticketed by the other officers
patrolling the same locations as [the officer who pulled over the defendant] serves as
a proxy to show the general racial composition of drivers on the road that [the officer
who pulled over the defendant] could have pulled over but did not.”). This weighs in
favor of abandoning the similarly situated requirement entirely.
Still other courts use the burden-shifting framework employed in other Equal
Protection contexts, such as jury selection. E.g., Commonwealth v. Long, 485 Mass.
711, 713 (2020) (shifting the burden to the government after defendant makes a
prima facie showing of selective enforcement); United States v. Hare, 308 F. Supp. 2d
955, 992 (D. Neb. 2004) (same); see also Batson v. Kentucky, 476 U.S. 79, 97 (1986)
(using a burden-shifting framework for racial discrimination in jury selection).
Instead of allowing discovery for a defendant to substantiate their claim, this
approach burdens the State with producing evidence to counter the reasonable
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inference. To challenge a peremptory juror strike, the defendant must first “make a
prima facie showing” that the State discriminated on the basis of race. State v.
Taylor, 362 N.C. 514, 527 (2008). “If the defendant makes the requisite showing, the
burden shifts to the state to offer a facially valid, race-neutral explanation . . . .” Id.
“Finally, the trial court must decide whether the defendant has proved purposeful
discrimination.” Id. This final step requires the court to find both a discriminatory
effect and a discriminatory intent.3 See id.
Given how contested this area of law is, the majority’s decision to affirm per
curiam the Court of Appeals’ adoption of the burden-shifting framework while
simultaneously making it impossible to establish a prima facie case is an abdication
of our responsibility to decide cases pending before us. While there are advantages to
using the burden-shifting approach, there are also advantages to using the approach
from Armstrong. Accordingly, an opinion that clarifies the correct standard for
3 It is important to remember that discrimination may occur through implicit bias,
i.e., subconscious racial prejudice or stereotyping. See, e.g., Batson v. Kentucky, 476 U.S. 79, 106 (1986) (Marshall, J., concurring) (“A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically.”); Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 540 (2015) (describing “unconscious prejudices” as a type of “discriminatory intent”); Woods v. City of Greensboro, 855 F.3d 639, 652 (4th Cir. 2017) (holding that bias, if “implicit, is no less intentional” in the context of a statutory racial discrimination claim); Samaha v. Wash. State Dep’t of Transp., No. CV-10-175-RMP, 2012 WL 11091843, at *4 (E.D. Wash. 2012) (“Testimony that educates a jury on the concepts of implicit bias and stereotypes is relevant to the issue of whether an employer intentionally discriminated against an employee.”).
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selective enforcement cases in North Carolina is warranted.4
The differences between enforcement and prosecution make a compelling case
for lowering Armstrong’s pre-discovery standard in the context of selective
enforcement. What that lower barrier should be is an open question. This Court could
follow the Ninth Circuit’s example and abandon the requirement that a defendant
show that similarly situated individuals of a different race were treated differently.
See Sellers, 906 F.3d at 855–56. Similarly, the Third Circuit requires only evidence
of a discriminatory effect, not evidence of a discriminatory intent or similarly situated
individuals. United States v. Washington, 869 F.3d 193, 221 (3d Cir. 2017). The
Seventh Circuit allows “limited [discovery] that can be conducted in a few weeks,”
which can be expanded “only if evidence discovered in the initial phase justifies a
wider discovery program.” United States v. Davis, 793 F.3d 712, 723 (7th Cir. 2015).
This Court could even adopt its own standard, such as by importing the prima facie
standard from the jury selection caselaw. See, e.g., Batson, 476 U.S. at 97 (requiring
prima facie evidence to satisfy the initial burden under the burden-shifting
framework).
By failing to engage the above questions, the majority left open the possibility
that the Court of Appeals applied the wrong framework. In doing so, the Court
4 The trial court’s order analyzed Mr. Johnson’s Equal Protection claim under the
selective prosecution approach requiring proof of a similarly situated individual of a different race being treated differently, applying Chavez v. Ill. State Police, 251 F.3d 612 (7th Cir. 2001) and Hubbard v. Holmes, 2018 U.S. Dist. Lexis 67278 (W.D. Va. 2018).
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abdicated the responsibility it took on when deciding to hear the case: to clarify “legal
principles of major significance to the jurisprudence of the State.” See N.C.G.S. § 7A-
31(c)(2) (2021). I dissent because I would clarify the correct framework.
V. Prima Facie Standard of Proof
If the Court of Appeals was correct to apply the burden-shifting framework, I
would hold that it erred by finding Mr. Johnson’s statistical evidence failed to make
a prima facie showing of discriminatory effect and intent.
Generally, “[a] ‘prima facie case’ . . . means no more than evidence sufficient to
justify, but not to compel an inference.” Staples v. Carter, 5 N.C. App. 264, 267 (1969)
(quoting Vance v. Guy, 224 N.C. 607, 609 (1944)); see also id. at 266 (stating that
prima facie evidence can be submitted to a jury, “nothing else appearing”); DeArmon
v. B. Mears Corp., 312 N.C. 749, 756 (1985) (describing prima facie evidence as
permitting but not compelling a conclusion, “nothing else appearing”);
Commonwealth v. Pauley, 368 Mass. 286, 291–92 (1975) (“The words ‘prima facie’
mean practically this: That on that evidence alone, nothing else appearing, . . . [the
law] permitted, but did not oblige . . . , [a finding].”). “The Supreme Court has
explicitly rejected the use of a ‘more likely than not’ standard in determining whether
a prima facie case of discrimination has been established . . . .” State v. Bennett, 374
N.C. 579, 598 (2020) (quoting Johnson v. California, 545 U.S. 162, 168 (2005)).
Therefore, in the context of Equal Protection, evidence establishes prima facie
discrimination where “the totality of the relevant facts gives rise to an inference” of
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discrimination. See id. (quoting Johnson, 545 U.S. at 168) (stating the quoted rule in
the context of discriminatory jury selection); Long, 485 Mass. at 717 (stating that
prima facie evidence “raises at least a reasonable inference of impermissible
discrimination” in the context of selective enforcement).
“[S]tatistical proof normally must present a ‘stark’ pattern to be accepted as
the sole proof of discriminatory intent under the Constitution.” McCleskey v. Kemp,
481 U.S. 279, 293 (1987). However, statistics cannot be held to such a high standard
that defendants cannot ever successfully claim selective enforcement. Long, 485
Mass. at 721 (lowering the initial burden to show selective enforcement because “[t]he
right of drivers to be free from racial profiling will remain illusory unless and until it
is supported by a workable remedy”); see Marbury v. Madison, 5 U.S. (1 Cranch) 137,
147 (1803) (“[E]very right, when withheld, must have a remedy . . . .”). Accordingly,
when statistics permit an inference of discrimination but could be strengthened or
weakened by information that only the State can provide, the burden shifts to the
State to explain the statistics. See United States v. Crowthers, 456 F.2d 1074, 1078
(4th Cir. 1972) (“We think defendants made a sufficient prima facie showing . . . and
that the government, being in possession of the facts . . . , should have come forward
with evidence . . . .”).
Here, Mr. Johnson’s statistical evidence constituted a prima facie showing of
racial discrimination by Officer Kuchen. Mr. Johnson offered two benchmarks:
(1) that 28% of Raleigh’s population was black, and (2) that 46% of the Raleigh Police
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Department’s traffic stops involved black drivers. As the Court of Appeals noted,
these numbers are “stark[ly]” different from Officer Kuchen’s traffic stops, 82% of
which involved black drivers. Johnson, 2020 WL 7974001, at *8. Therefore, “nothing
else appearing,” these statistics “permit” but do “not compel[ ]” an “inference” that
Officer Kuchen discriminated on the basis of race in conducting his police duties,
including when he approached Mr. Johnson. See Staples, 5 N.C. App. at 266–67
(quoting Vance, 224 N.C. at 609); Bennett, 374 N.C. at 598. They are a textbook
example of prima facie evidence.
Moreover, the use of statistics alone to show racial discrimination is not novel
and has been used in other contexts. In fact, “[i]n the problem of racial discrimination,
statistics often tell much, and Courts listen.” Alabama v. United States, 304 F.2d 583
(5th Cir.), aff’d per curiam, 371 U.S. 37 (1962). One such example is the case of
Hawkins v. Town of Shaw, where the court used statistics to find black citizens in
Shaw, Mississippi, were being disproportionately deprived of municipal services such
as paved streets, sewers, streetlights, surface water drainage, water mains, fire
hydrants, and traffic control because of their race. 437 F.2d 1286, 1288–89 (5th Cir.
1971)5; see also Alabama, 304 F.2d 583 (providing statistics showing that although
the population of Macon County, Alabama, was 83% black, less than 10% of those
meeting the required voting age were registered to vote, and this stood in contrast to
5 This decision was also affirmed on rehearing in Hawkins v. Town of Shaw, 461 F.2d
1171 (5th Cir. 1972).
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whites of the required voting age that were registered to vote at nearly 100% despite
being only 17% of the county’s total population); U.S. ex rel. Seals v. Wiman, 304 F.2d
53, 67 (5th Cir. 1962) (using U.S. Supreme Court precedent to determine that “the
presence of no [African-Americans] on the 18-man grand jury which indicted [the
defendant], and the 2 [African-Americans] on the venire of the 110 persons from
which came the petit jury which convicted [the defendant] and condemned him to
death was not a mere fortuitous accident but was the result of systematic exclusion
of [African-Americans] from the jury rolls”); United States v. Edwards, 333 F.2d 575,
581 n.3 (5th Cir. 1964) (Brown, J., dissenting) (noting that while African Americans
made up 37.3% of the population they only constituted 1% of registered voters); Bing
v. Roadway Exp., Inc., 485 F.2d 441 (5th Cir. 1973) (noting that among the almost
300 road drivers hired by the company, not one was African-American); United States
v. Ironworkers Loc. 86, 443 F.2d 544 (9th Cir. 1971) (noting that of the 3,720 union
members, only three were black).
Statistics on the racial composition of the districts Officer Kuchen patrolled
might have been additionally useful here.6 But Mr. Johnson did not need to produce
such information to meet his initial burden, for two reasons.
First, it is not clear that such statistics would provide better benchmarks.
6 The Court of Appeals faulted Mr. Johnson for failing to produce demographic statistics for the southeast district, but Officer Kuchen’s traffic stops also occurred in the northwest district.
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Were they to show that one district contained a high percentage of black residents
and one district contained a low percentage, the court would then need information
on which district each of Officer Kuchen’s stops occurred in. Because the publicly
available data does not contain this information, see N.C.G.S. § 143B-903(a)(15)
(2021), the burden must shift to the State to provide it. Additionally, the percentage
of black residents in Officer Kuchen’s districts might be a poor proxy for the
percentage of black drivers on the roads. White people are overrepresented among
drivers because “having a driver’s license, owning a car, and driving regularly are all
more common among white Americans than black Americans.” Suspect Citizens, at
65; see generally Mike Dolan Fliss, Observations on the Measurement of North
Carolina Traffic Stop Disparities (2022). And while the ratio of nonresident drivers
to residents may be low for large geographies like a city or county, the police districts
in question covered only small portions of Raleigh.7 See Raleigh Police Districts, City
of Raleigh (last updated Aug. 21, 2023), https://raleighnc.gov/safety/raleigh-police-
districts.
Second, it is not clear that demographic statistics for the districts Officer
Kuchen patrolled can be produced; requiring them could therefore deprive selective
enforcement victims of a remedy. At oral argument, the parties alluded to the
possibility that such statistics could come from census data. But the U.S. Census
7 The record does not contain sufficient evidence for a court to determine whether
Officer Kuchen’s districts contained major thoroughfares.
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Bureau does not provide demographic statistics tailored to Raleigh police districts,
and the State introduced no evidence on whether such statistics could be constructed
out of available census data.8
The Court of Appeals failed to consider another benchmark statistic that
almost certainly can be produced and might be even more useful than district
demographics: the racial breakdown of traffic stops made by other officers who
patrolled the same districts as Officer Kuchen. This statistic was demonstrably not
available to Mr. Johnson because the publicly available traffic stop data does not
include location information below the city level. See N.C.G.S. § 143B-903(a)(15). But
this statistic was almost certainly available to the State, given it knows which officers
are assigned to which districts and records their traffic stop data pursuant to
N.C.G.S. § 143B-903. Indeed, N.C.G.S. § 143B-903(d) expressly contemplates the
possibility that traffic data may need to be deanonymized “to resolve a claim or
defense properly before the court.” The burden to provide this benchmark therefore
8 If it is possible to construct demographic statistics for police districts using census
data, the State would be better suited to the task, as it likely knows the exact boundaries of each district. The district boundaries appear to be publicly available only as shaded areas on a map. See Raleigh Police Districts, City of Raleigh (last updated Aug. 21, 2023) https://raleighnc.gov/safety/raleigh-police-districts. Requiring census-provided population statistics of the area a police officer patrols could also run into issues with the Census Bureau’s decision to implement differential privacy on its data products starting in 2020. Differential privacy will lower the accuracy of census and American Community Survey products in the interest of preventing household-level data from being deduced from summary statistics. See Alabama v. U.S. Dep’t of Com., 546 F. Supp. 3d 1057, 1064–65 (M.D. Ala. 2021). The accuracy-reduction may be particularly pronounced for minority communities in small geographic areas. Christopher T. Kenny et al., The Impact of the U.S. Census Disclosure Avoidance System on Redistricting and Voting Rights Analysis 21 (2021).
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falls on the State, or else defendants like Mr. Johnson would be left without a remedy
for selective enforcement. “It is neither novel nor unfair to require the party in
possession of the facts to disclose them.” Crowthers, 456 F.2d at 1078.
By pushing the burden to produce granular benchmark statistics onto
defendants, the Court of Appeals did not only err; it also created an incentive for the
State to avoid making such data publicly available. “The law should not create or
allow such an incentive,” see Johnson, 782 F. App’x at 281, especially in this context,
where the General Assembly has indicated a preference for the public to be able to
access police data to assess racial discrimination, see N.C.G.S. § 143B-903; Suspect
Citizens, at 36–45.
The Court of Appeals decision allows the State to avoid selective enforcement
claims by withholding relevant data. However, Mr. Johnson’s only burden at this
stage was to make a prima facie showing of racial discrimination. This is not a high
bar to meet, and all that was required was for Mr. Johnson to show that “the totality
of the relevant facts gives rise to an inference” of discrimination. See Bennett, 374
N.C. at 598 (quoting Johnson, 545 U.S. at 168). Mr. Johnson presented a prima facie
case of racial discrimination by presenting data (1) that 28% of Raleigh’s population
was black; (2) that 46% of the Raleigh Police Department’s traffic stops involved black
drivers; (3) that of the 299 drivers Officer Kuchen had stopped, 245 (about 82%) were
black; and (4) that of the 204 cases with Officer Kuchen as the complainant, 166 of
the people charged (81.4%) were black. To be clear, a prima facie case is only the first
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step of this analysis. Officer Kuchen could offer legitimate nondiscriminatory reasons
for the actions he took, beyond that he was investigating a trespass, that would lead
the fact-finder to conclude that race was not a factor in his decision to investigate Mr.
Johnson. But by denying the legitimate force of the statistical evidence here and
placing an impossible high hurdle that can never be met, the Court of Appeals opinion
prevents any further inquiry whatsoever.
VI. Conclusion
Discrimination based on race by state actors violates our federal and state
constitutions, U.S. Const. amend. XIV; N.C. Const. art I, § 19, and contravenes the
intent of the General Assembly in passing N.C.G.S. § 143B-903. See Senate Judiciary
II Committee Meeting Minutes, Feb. 25, 1999 (considering a news article detailing
the disparate traffic stops of black North Carolinians); House Judiciary I Committee
Meeting Minutes, Mar. 25, 1999 (while the Act “does not accuse any agency of
stopping people because of their race . . . this does not mean it is not occurring”). The
statistically disproportionate stopping of black North Carolina drivers suggests that
how likely a person is to be stopped while driving is more closely related to the race
of the driver than the commission of a traffic offense. Accordingly, when a police
officer disproportionately stops or searches black drivers, he or she not only violates
the law but also delegitimizes the legal system. See Juliana Menasce Horowitz et al.,
Race in America 2019, at 34, 41 (2019) (finding that 84% of black Americans agreed
that blacks are treated less fairly than whites in dealing with the police and 44% of
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black Americans reported being unfairly stopped by the police). This remains true
regardless of whether those discriminatory stops reveal criminality.
A prima facie showing of discrimination does not condemn Officer Kuchen’s
actions here, and it does not conclusively establish that his interaction with Mr.
Johnson was based on race. Instead, a prima facie showing is the first step in a
burden-shifting equal protection analysis and at subsequent steps Officer Kuchen can
still demonstrate that race did not play a role in his stopping of Mr. Johnson.
Therefore, assuming that the Court of Appeals was correct to apply the burden-
shifting framework, I would hold that Mr. Johnson successfully made a prima facie
showing that Officer Kuchen violated his Equal Protection rights by selectively
enforcing the law against him because of his race. See Ivey, 360 N.C. at 564
(determining that the Equal Protection Clause of the United States Constitution
“prohibits selective enforcement of the law based on considerations such as race”
(cleaned up)); Yick Wo, 118 U.S. at 373 (deciding a case involving the disparate
application of the law to Chinese immigrants “with a mind so unequal and oppressive
as to amount to a practical denial by the state of . . . equal protection of the laws”). I
would also clarify the correct legal standard for selective enforcement claims brought
under the North Carolina Constitution and remand Mr. Johnson’s case for further
evidentiary hearings tailored to that standard.
By affirming the Court of Appeals opinion, the majority turns a blind eye to
the documented historical racial disparities in traffic stops by Officer Kuchen, which
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may or may not ultimately be justified on non-racial grounds, and potentially renders
the Equal Protection Clauses of both the United States Constitution and North
Carolina Constitution illusory for Mr. Johnson. Moreover, left in place is a precedent
that appears to make it legally and factually impossible to establish any prima facie
case of racial discrimination because the data such a case requires does not exist.
I respectfully dissent.
Justice MORGAN joins in this dissenting opinion.
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