In the Stop and Frisk case the court concluded the survey of the governing law subsequent to Terry by making clear that under the Equal Protection Clause of the Fourteenth Amendment, the police are not allowed to intentionally treat similarly situated people differently based on race although the Equal Protection Clause does not prohibit police actions that have a disproportionate racial impact. On the issue of proof of an equal protection violation, the court explained that the law under the Second Circuit, intentional discrimination can be established under three different theories.
First, ‘[a] plaintiff could point to a law or policy that ‘expressly classifies persons on the basis of race.’ Second, ‘a plaintiff could identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner.’ Third, ‘[a] plaintiff could also allege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus.’ In none of these three cases is a plaintiff ‘obligated to show a better treated, similarly situated group of individuals of a different race in order to establish a claim of denial of equal protection.’
In order to show intentional discrimination under the second and third models of pleading above, plaintiffs need not prove that the ‘challenged action rested solely on racially discriminatory purposes,’ or even that a discriminatory purpose ‘was the ‘dominant’ or ‘primary’ one.’ Rather, plaintiffs must prove that ‘a discriminatory purpose has been a motivating factor’ in the challenged action. That is, plaintiffs must show that those who carried out the challenged action ‘selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group. The court concluded that “[o]nce it is shown that a decision was motivated at least in part by a racially discriminatory purpose, the burden shifts to the defendant to show that the same result would have been reached even without consideration of race.”43 Thus “if the trier of fact is unpersuaded that race did not contribute to the outcome of the decision, the equal protection claim is established
Check Out Stop and Frisk published draft