Tag: bianca johnson

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Double negative: Judge dismisses racial profiling suit against Albemarle cop

Detective Andrew Holmes leaves federal court after the first of five lawsuits against him for racial profiling was dismissed. Staff photo

On the second day of a jury trial against Detective Andrew Holmes for racial profiling in his stops of black motorists—the first of five such suits—plaintiffs’ attorney Jeff Fogel rested his case around noon March 22, and Judge Norman Moon ordered it tossed because Fogel did not prove Holmes treated white people differently.

“There is no evidence he did not subject other races to the same treatment,” said Moon in U.S. District Court.

“You have to prove a negative,” said Fogel after the hearing—that Holmes did not stop and search white people in the same situations as he did Fogel’s clients to prove their complaints that Holmes violated their 14th Amendment rights to equal protection.

Bianca Johnson and Delmar Canada brought the suit after Holmes stopped Canada for driving with a suspended license April 26, 2014, and then turned up at their apartment five days later after 11pm on a Friday night with a search warrant for the Department of Motor Vehicles license suspension notice that Canada said he never received.

Holmes, said Fogel, “believes black people driving fancy cars are likely to be drug dealers.”

Holmes’ attorney, Jim Guynn, said his client is “very interested in investigating drug crimes because so many other crimes are related to the drug trade.” And Holmes, who has been promoted since he searched the couple’s Turtle Creek apartment, had recently learned that using search warrants to look for a piece of paper as a pretext is a “beneficial tool” in finding drugs and is perfectly legal.

The day the officer stopped Canada, he was staking out the Super 8 parking lot on Greenbrier Drive because it’s “one area with higher than average calls for service,” Holmes testified. He turned his license plate scanner to the nearby 7-Eleven and ran the tags on Johnson’s BMW 7 Series parked in the lot.

Albemarle police use a database called PISTOL, which besides providing personal information, also reveals whether one has been a victim, an offender or has visited the jail. Holmes said he recognized Johnson’s name because officers had gone to her apartment on a domestic call, and the system offered up Canada’s name as well. He checked Canada’s driving record and saw that his license had been suspended—all before he knew who was driving the car.

When Canada came out of the convenience store, Holmes pulled him.

Canada testified that he never received the license suspension notice because of child support nonpayment, and said that he’d paid the support more than a year earlier.

For Holmes, Canada’s 2009 arrest for crack cocaine was another factor in his hunch that there could be drugs in the apartment, even though the drug charge was dropped. Canada testified he was a passenger just off work when the arrest happened.

Holmes, who had applied to join the Jefferson Area Drug Enforcement Task Force a couple of times, asked a JADE investigator about Canada, who told him “there was no active investigation, but they knew the name,” said Holmes.

Canada and Johnson were asleep when three officers knocked at their door. “It made me nervous because it was so late,” said Johnson. The couple had to sit on the sofa while the officers rummaged through papers for about an hour, and then left without the DMV notice—or drugs.

“I felt violated,” said Canada. “I still think about it.”

Fogel entered into evidence statistics from Albemarle police that show in the sectors Holmes mostly worked, although the population was 68 percent white and 18 percent black, in 2015, 51 percent of the summons he issued were to African-Americans. That same year, 22 percent of county cops tickets were to blacks and 74 percent to whites.

When asked why he cited blacks with greater frequency than other races, Holmes took a long pause and said he couldn’t answer without knowing more about the context and breakdown of the summonses.

“The color of one’s skin alone is not a determining factor” in traffic violations or in drug use,  testified Holmes.

Fogel called as witnesses three black men who had been stopped by Holmes. Sergio Harris, who has filed a lawsuit, said Holmes stopped him three times in one day and searched his 2001 Monte Carlo.

UVA library facilities manager Robert Douglas said Holmes stopped him several times with “bogus” excuses to search his Lincoln Town Car, including a claim he smelled marijuana. “I don’t even smoke weed,” said Douglas, who filed a complaint with the county.

And Rodney Hubbard said Holmes stopped him as he was driving his mother to Maryland on U.S. 29, said he smelled pot, handcuffed him and held them both for two hours during a search of his 2007 Yukon Denali, which yielded no drugs. The Hubbards are plaintiffs in another suit against Holmes.

The witnesses and statistics were not enough for Moon, who said a Fourth Circuit Court ruling required proof “similarly situated individuals in different races were not prosecuted.”

Acknowledged Moon, “They’ve created an impossible burden.”

Fogel said he will appeal the decision. “If you have to prove something that can’t be proven, you have no remedy.”

And Johnson said that while she was disappointed with the decision, “It’s not over. We’re going to keep pressing forward.”

Holmes declined to comment.

 

Correction 11:30am March 23: Sergio Harris was misidentified in the original story.

 

 

 

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‘Culture of racism’? Albemarle cop says high-volume black stops not racial profiling

Andrew Holmes in 2011 as he left court after an improper driving conviction for rear-ending a car. Hawes Spencer

The Albemarle County police officer who is the defendant in three lawsuits alleging racial profiling picked up a fourth complaint last month. Officer Andrew Holmes heads to court September 21 and says that although his number of stops and arrests of black people far exceeds the rest of the department, he was not profiling when he targeted the plaintiffs for searches.

However, a former Albemarle police officer says in a sworn deposition the force has a “culture of racism.”

Albemarle County also is being sued, with the plaintiffs alleging it knew about Holmes’ targeting blacks—and did nothing about it.

The first suit, stemming from the late Friday night search of Bianca Johnson and Delmar Canada’s house, began April 26, 2014, when Holmes was sitting across from the 7-Eleven on Greenbrier Drive running the license plates of everyone who pulled into the lot.

A BMW registered to Johnson made Holmes remember a call for service involving a husband or boyfriend, according to Holmes’ motion for summary judgment. He then went to a database that pulled up associates of Johnson, and found Canada. He pulled up Canada’s photo and driving record, and learned his license was suspended for delinquent child support payments—all before Canada left the 7-Eleven.

Holmes pulled over Canada, who said he’d never gotten notice from the DMV that his license was suspended. Johnson arrived and asked for Holmes’ badge number. He gave Canada a ticket, and proceeded to run license numbers of another 49 cars, according to the motion.

According to Holmes, there was nothing discriminatory with this because he didn’t know the race of the drivers when he entered their plate numbers.

The plaintiffs argue in court filings that the reason he was at that particular 7-Eleven was because it was “principally frequented” by blacks and that he “connects African-Americans driving expensive-looking cars with drug dealing.”

Courts have so far supported the use of automated license plate readers, says John Whitehead, founder of the civil rights nonprofit Rutherford Institute. “I think it’s egregious and violates the spirit of the Constitution,” he says. “License plate readers are another step toward an Orwellian state.”

The next day, Holmes got a search warrant for the DMV license suspension notice that Canada said he’d never received, an unusual pretext for a search that Holmes acknowledged in a deposition he’d never done before. In his deposition, Lieutenant Darrell Byers, who has 18 years experience in law enforcement, said he’d never heard of anyone getting a warrant for paperwork.

Johnson and Canada were asleep when cops, including a member of the Jefferson Area Drug Enforcement task force, showed up at their house at 11:18pm to look for the missing DMV paperwork. For nearly an hour, the couple was not allowed to leave as Holmes rifled through their belongings, and asked questions about checks and cash he found. When the license suspension paperwork did not turn up, he gave Canada his driver’s license back and left.

“How could he think this guy was into drugs except that he was a black man driving a fancy BMW?” asks plaintiffs’ attorney Jeff Fogel. “This was a pretextual search. That’s why he went to their house at 11:20pm. That’s the time you raid a drug dealer’s house.”

Says Canada and Johnson’s court filing, “Officer Holmes believed that there was a chance that he would find some narcotics inside that residence.”

While courts have ruled pretextual searches do not violate the Fourth Amendment, the plaintiffs contend that Holmes’ “stereotyping” of black men driving expensive cars violates the equal protection of the Fourteenth Amendment.

The court filings also reveal that in a county where the population is 68 percent white and 18 percent black in sectors 1 and 2 that Holmes was assigned, his citations and arrests of African-Americans far exceeded that ratio. For example, in 2015, the only year in which Albemarle provided a racial breakdown of the force’s tickets and arrests in those same sectors, Holmes issued 47 citations to blacks and 44 to whites, and he arrested 40 blacks and 27 whites.

Meanwhile, the rest of the Albemarle County police officers in sectors 1 and 2 issued 285 citations, 62 to blacks and 210 to whites. County cops arrested 207 people and of them, 79 were black and 126 were white.

“Statistics alone cannot prove discrimination in this context,” argues Holmes in his motion, further saying that the plaintiffs must show that white people in similar situations were treated differently.

Holmes has racked up complaints from other black citizens (see sidebar on additional lawsuits). Five were filed with police between 2009 and April 26, 2014, and all were ruled “unfounded” or exonerated Holmes, according to his motion.

The county police force has an “early warning, early intervention” system when an officer gets three or more civilian complaints, according to court documents. In 2014, Holmes got 11 complaints from citizens and seven in 2015, but in a deposition, he says no supervisor ever spoke to him about the number of complaints. That, contends the plaintiffs, amounts to “deliberate indifference.”

A former Albemarle sergeant and 15-year-veteran of the force who left in 2012, Pam Greenwood says in a deposition the department had a culture of racism. She heard officers use the N-word in reference to African-Americans, and observed them targeting black drivers. She says she was afraid to notify her superior officers for fear of “negative consequences,” according to a court filing.

In requesting a summary judgment, Holmes is asking “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented,” and arguing that it would not.

“We’re hopeful the court will look at our argument and grant our motion for summary judgment,” says Jim Guynn, who represents Holmes and Albemarle County.

The case is scheduled for an October 2 trial.

More lawsuits from black plaintiffs

Rodney Hubbard says Andrew Holmes stopped him September 11, 2015, when he was driving his 70-year-old mother, Savannah Hubbard. Holmes claimed he smelled marijuana, handcuffed Hubbard for two hours on the side of U.S. 29, searched his groin area as well as Samantha Hubbard’s purse and brought in dogs, which failed to turn up any illicit substances. The case goes to trial May 1, 2018.

Similarly, on June 30, 2015, Holmes claimed he smelled pot when he ordered Leon Polk and UVA football player Malcolm Cook at gunpoint out of the car, which he searched for two hours without finding drugs. That case has a March 20, 2018, court date.

In August, Glenmore Country Club chef Cory Grady filed a suit that contends Holmes stopped him August 27, 2015, and claimed the headlights of his Chrysler 300 HC weren’t on. Holmes then said he saw a marijuana leaf on Grady’s T-shirt, according to the suit, and used that as probable cause to search the car, where he did find marijuana. Two felony charges against Grady were dismissed in circuit court when Holmes’ dashcam video showed his probable cause for the stop was bogus because Grady’s headlights were on when he stopped him.

What the statistics say

Albemarle County police officer Andrew Holmes arrests a higher percentage of black people than the rest of the department’s officers. (Arrests data for white and black people only.)

Albemarle County sectors 1 and 2 population

Black 18 percent

White 68 percent

Albemarle police 2015 (sectors 1 and 2)

Summons issued

62 black (22 percent), 210 white (74 percent)

Arrests

79 black (38 percent), 126 white (61 percent)

Andrew Holmes 2015

Summons issued

47 black (51 percent), 44 white (48 percent)

Arrests

40 black (61 percent), 27 white (39 percent)

Updated 9:58am to clarify that the summons and arrest numbers are from Albemarle’s sectors 1 and 2, not the entire county.

Updated 9:19am September 21 to further specify that arrest numbers are for sectors 1 and 2.

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Racial profiling: Case against Albemarle cop moves forward

Albemarle police officer Andrew Holmes, photographed in 2011, received qualified immunity on two of the claims against him, but the racial profiling part of the lawsuit will move forward. Photo Hawes Spencer

A federal judge issued an opinion last week that allows a lawsuit against Albemarle County and police officer Andrew Holmes to proceed on its racial profiling claim, while giving Holmes qualified immunity on claims he violated the plaintiffs’ Fourth Amendment rights when he showed up at their home around midnight to look for a DMV license suspension notice.

Holmes pulled over Delmar Canada April 26, 2014, and ticketed him for driving on a suspended license. The next day Holmes obtained a search warrant and asserted that from his training and nine years of law enforcement experience, he was aware that people kept driver’s license suspension documents in their homes, according to a brief.

Five days later, on a Friday night, Holmes and three other officers showed up at the Turtle Creek condo Canada shared with Bianca Johnson, and detained the couple for two hours while they searched the residence.

Judge Glen Conrad ruled that Holmes had qualified immunity in the unlawful search and seizure claims because “the doctrine gives ample room for mistaken judgments ‘by protecting all but the plainly incompetent or those who knowingly violate the law.’” Conrad said the plaintiffs’ argument that the officer should have known there was no probable cause for the search warrant was “unpersuasive.”

Canada and Johnson gained more traction on their equal protection claim that Holmes’ application for the warrant and the search itself were motivated by their race. Wrote Conrad, “The plaintiffs allege that Holmes has ‘a history and practice of targeting African-American males for vehicle stops and intrusive searches.’”

He also denied Albemarle’s motion to dismiss the suit against the county on the grounds that “numerous complaints by African-Americans” had been lodged with the police department before this incident, and the county, by not taking corrective or disciplinary action, condoned his actions.

“We can hold the county liable because they were aware of the complaints,” says Jeff Fogel, who represents Canada and Johnson. “I know a number of complaints were filed because I have the names of people who did.”

Through discovery, says Fogel, he will scrutinize all summons Holmes issued over the past five years for race.

“In a sense, it’s an important hurdle but we still have a lot of work to prove what we’ve alleged,” he says. The case was really about racial profiling, he says, and he’s “quite content” with the judge’s ruling.

Jim Guynn, who represents Holmes and the county, says he’s pleased about “two-thirds” of the judge’s ruling. “It’s very early in the case and the fact the judge thought any of it could be dismissed is a good thing for the defendants,” he says.

As the case proceeds, he says he’ll give the judge another opportunity to dismiss the suit.

Holmes still faces two other racial profiling lawsuits, and Conrad said he would rule on the motions to dismiss those separately. In both those cases, the plaintiffs contend Holmes pulled them over, claimed he smelled marijuana and held them for two hours without turning up any drugs.

Johnson is happy the racial profiling part of the suit can proceed. “We can bring attention to how the police are abusing their power and stopping African-Americans,” she says. “[Holmes] is well-known in the community for targeting African-American men.”

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