Citizen Green: The inartful sheriff, or judicial whiplash

by Jordan Green

We have a pretty good idea of how federal Judge Thomas Schroeder will rule in the lawsuit brought against the state of North Carolina’s election law by the US Justice Department, the North Carolina NAACP and others following the conclusion of the trial last month.

After all, the federal judge denied the plaintiffs’ preliminary injunction last year, ruling that they were unlikely to succeed on the merits.

Schroeder’s ruling last week dismissing the federal government’s racial discrimination complaint against Alamance County Sheriff Terry Johnson reveals a judge with a skeptical view of federal intervention in the practices of local and state government.

Schroeder is nothing if not thorough. His 253-page memorandum and opinion, released on Aug. 7 nearly a year after the conclusion of the Alamance County racial profiling trial, is a testament to the judge’s attention to detail.

Schroeder ruled that the government failed to make the case that the sheriff’s office in Alamance County, our neighbor to the immediate east, violated the Fourteenth Amendment by denying Latinos equal protection under the law through a pattern and practice of discriminatory traffic stops. Before we get into the dense thicket of Schroeder’s judicial reasoning, it warrants mention that the judge admonished the sheriff’s office to get a handle on the racist comments of its employees.

“The language, epithets and slurs used by some ACSO officers, particularly in the [county jail], are abhorrent and, if not already, should cease immediately,” Schroeder wrote. He added that the sheriff’s office may have already taken steps to curb abuses of its email system, but if not, “the sending of racially- and ethnically-insensitive jokes and games must stop.”

His musing on testimony about alleged orders given by Sheriff Johnson is telling. The government had attempted to make the argument that the sheriff ordered deputies to “arrest Hispanics” during a meeting and then on another occasion during a checkpoint near a predominantly Latino trailer park. The judge was not persuaded that the evidence put out by the government established that there was policy singling out Latinos.

“The government points to no ACSO document containing any policy, and no witness testified to any,” Schroeder wrote. “Rather, the government relies on testimony as to Sheriff Johnson’s verbal directives to arrest Hispanics on these limited occasions and evidence that all deputies are duty-bound to carry out all of the sheriff’s orders.”

While I can’t claim to understand the finer points of civil rights law, I do consider myself a pretty good judge of common sense. In an age of hyperawareness about the taboo of racial discrimination, any police chief or sheriff with half a brain will tell you: “Racial profiling is against the law; we don’t tolerate it or practice it.” Even if they actually do. Only a halfwit would maintain a document outlining a policy of targeting Latinos.

It gets better.

“Only a very few officers claimed to have heard such a statement,” Schroeder writes. “And, had any officer regarded such a statement to be a directive, like those from the sheriff that he or she was dutybound to obey, as the government suggests, it is odd that not a single officer or employee ever complained about it, challenged it, or was concerned that he or she would risk any adverse action at all for failing to follow it. Whatever Sheriff Johnson may have said, it is unlikely that it was as portrayed, singling out Hispanics expressly.”

Notwithstanding the judge’s inclination to give the sheriff the benefit of the doubt, it doesn’t really seem that odd that subordinates who are professionally disposed to respect authority would be reluctant to challenge questionable practices.

The judge noted that one officer testified that Sheriff Johnson once said, “Go get the Mexicans” and “arrest every chili s***ter in the park.” But the judge said he questioned the veracity of the officer’s testimony, and concluding that the sheriff likely said, “Go get those Mexicans” in reference to a specific Mexican gang.

That puts a pretty fine point on it.

Then there is another officer with the Alamance County Sheriff’s Office who testified that a chief deputy had reported that the sheriff said that any Hispanics driving without a driver’s license at a checkpoint at the predominantly Latino Rocky Top trailer park should be arrested.

“However, after several officers, including Officer Lloyd, sought some clarification, Chief Deputy McPherson spoke again with Sheriff Johnson and then reported back that the sheriff ‘didn’t mean [to arrest] just Hispanics’ but rather also ‘Hispanics, whites and blacks.’ While the clarification was inartful at best (there being no need to refer to race at all), it demonstrates that the directive was either misstated or misunderstood and was meant to apply to everyone.”

Inartful is one way to put it. Another way to read it is that once a subordinate questions an unlawful practice, an agency leader who wants to evade detection would be wise to cover his tracks.

Oh wait, weren’t we told that “not a single officer or employee ever complained about” a policy of targeting Latinos? Weren’t we told that no employee ever challenged the policy or was concerned that he would “risk any adverse action” for failing to follow it?

Feeling whiplash yet?