United States v. Johnson (122 F. Supp. 3d 272, 2015)

United States District Court for the Middle District of North Carolina 2015-08-07

Title 142 The Public Health and Welfare Voting and Elections

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

TABLE OF CONTENTS

I.FINDINGS OF FACT..............................................■......282

A. Alamance County...................................................282

1. Population and Demographics of Alamance County ................282

2. Law Enforcement Challenges in Alamance County.................283

B. ACSO and Sheriff Johnson...........................................285

1. The Introduction and Implementation of ICE’s 287(g) Program

in Alamance County ...............................;..........285

a. 287(g) Program’s TFO..................... 286

b. Termination of TFO Position.................................289

c. Gun Permit Investigations ....................................290

d. ACSO’s Processing and Booking Procédures...................291

e. Fairness Alamance...........................................294

2. ACSO Arrest Policy and Practice .................................295

3. Orders to Target Hispanics.......................................297

4. ACSO Checkpoint Policy and Implementation......................298

5. ACSO’s Stops and Searches.......................................302

a. Particular Stops............. 302

b. Statistical Evidence.......... 304

i. Dr. John Lamberth....................... 304

ii. Dr. John MacDonald...................................307

(a) Post-Stop Outcome Study..........................309

(b) “Hit-Rate” Study............... 310

iii. Officer Mark Dockery and ACSO Data on Searches

Not Incident to Arrest...............................311

iv. Dr, David Banks ........................ 312

(a) .ACSO’s Checkpoint Siting..........................313

(b) ACSO’s Checkpoint Stops..........................314

(c) ACSO’s Checkpoint Arrests.........................315

(d) ACSO’s Traffic Stops..............................316

(e) ACSO’s Citations................................. .316

C. Evidence of Racial and Ethnic Bias Within ACSO......................317

1.Racial and Ethnic Epithets and Jokés .........:.....318

2. Derogatory Emails.....:;.........................................319

D. ACSO’s Supervision and Discipline of Its Officers .;........i...........322

1. Supervision .........................................,............ .322

a. ACSO’s Complaint Policy.......................... 322

b. ACSO’s Review of Stops, Arrest, and Searches...............i... 323

c. ACSO’s Traffic Stop Data Reporting.................;.........324

d. ACSO’s Training of Its Officers........................ 325

e. ACSO’s Harassment Prevention Policy ........... 325

f. Implementation of Email and Video Filtering Software.........326

2. Discipline.................................i.....................326

3. Margo Frasier..................................C .........:.....327

II. CONCLUSIONS OF LAW ...................... ........................ 329

A. Motion to Exclude Dr. Lamberth’s Testimony................... 329

1. Admissibility.............................’......................330

a. Testability —........................................... 330

b. Peer Review ............................ —...........332

c. Error Rates ....... ..332

d. General Acceptance ......................................,... .334

2. Credibility................................ 337

B. Motion to Exclude Dr. Banks’ Testimony........ 338

1. Dr. Banks’ Qualifications ................................ 338

2. The Admissibility of Dr. Banks’ Testimony........ 339

a. Dr. Banks’ Study of ACSO Traffic Stops........................339

b. Dr. Banks’ Analysis of ACSO Checkpoint Stops.................340

c. Dr. Banks’Study of ACSO Checkpoint Arrests ............. — 341

d. Dr. Banks’ Permutation Test ...........:.....................341

C. Motion for Adverse Inference.........................................342

D. Motion to Exclude Kenneth Evans’ Testimony.........................345

E. 42 U.S.C. § 14141 Claims...............:.............................347

1. Fourteenth Amendment Claim.......... ......;...........349

a. Express Classification..........— ......;......................350

b. Facially Neutral Classification................................354

i. Traffic Stops..........................................357

ii. Checkpoint Placement and Stops ...................— 358

iii. Post-Stop Outcomes................ 360

iv. Searches After Stops..........I.........................365

v. 287(g) Practices........................■...............369

vi. ACSO’s Culture, Supervision, and Discipline.............371

2. Fourth Amendment Claim............................ 372

F. Statute of Limitations..................,............................379

III. CONCLUSION........:....'......................1..................’... .380

The United States of America (the “Gov-emment”) alleges that, from at least January 2007 to the present, Defendant Terry S. Johnson, in his official capacity as Sheriff of Alamance County, North Carolina, engaged in’ a pattern or practice of discriminatory, law enforcement activities directed against Hispanics, in violation of the Fourth and Fourteenth Amendments to the United States Constitution. The Government brings this action via Section 210401 of the Violent Crime Control and Law Enforcement Act of 1994, '42 U.S.C. § 14141. (Doc. 1.) Principally, the Government charges that Alamance County Sheriffs Office (“ACSO”) disproportionately subjects Hispanics to unreasonable searches, arrests them for minor infractions (in lieu of issuing warnings or citations), targets them at vehicle checkpoints located in predominantly Hispanic neighborhoods, uses ethnically-offensive epithets to refer to Hispanics and otherwise tolerates activities of deputies that evidence anti-Hispanic bias, automatically and selectively refers Hispanic arrestees to U.S. Immigration and Customs Enforcement (“ICE”) investigators for deportation, and otherwise engages in deficient policies, training, and oversight that facilitates discriminatory enforcement. (Id.) Sheriff Johnson denies any wrongdoing and maintains that ACSO’s law enforcement is legitimate and lawful.

The parties previously filed cross-motions for summary judgment, which the court considered and, following oral argument, granted in part and denied in part. (Doc. 118.)

A bench trial on the merits was conducted from August 12 through 22, 2014. The Government presented twenty-nine fact witnesses and three expert witnesses, and Sheriff Johnson presented sixteen fact witnesses and one expert witness. At the close of the Government’s evidence, Sheriff Johnson moved for judgment pursuant to Federal Rule of Civil Procedure 52(c), which the court took under advisement. Following trial, the parties sought to file proposed findings of fact and conclusions of law and requested additional time to do so. They have now submitted them. (Docs. 157, 158.) The case is therefore ready for decision.

Pursuant to Federal Rule of Civil Procedure 52(a), the court enters the following findings of fact — based upon an evaluation of the evidence, including the credibility of witnesses, and the inferences that the court has found reasonable to draw therefrom — and conclusions of law. To the extent any factual statement is contained in the conclusions of law, it is deemed a finding of fact as well.

As explained by the following analysis, and after careful consideration, the court concludes that the Government has failed to demonstrate that ACSO has engaged in a pattern or practice of unconstitutional law enforcement against Hispanics in violation of § 14141.

I. FINDINGS OF FACT

A. Alamance County 1. Population and Demographics of Alamance County

Alamance County (the “County”) lies within central North Carolina and is currently home to over 150,000 residents. See State & County QuickFacts: Ala-mance County, North Carolina, U.S. Census Bureau, http://quickfacts.census.gov/ qfd/states/37/37001.html (last visited June 29, 2015). The Government has consistently contended, and Sheriff Johnson does not dispute, that Alamance County’s population, and particularly its Hispanic population, has risen sharply since 1990. (See Doc. 1 ¶ 12; Doc. 158 at 9.) As of the 1990 U.S. Census, Alamance County was home to about 108,000 residents, with the County’s Hispanic population totaling fewer than 800 — or less than 1% of the total population. See 1990 Census of Population and Housing Public Law 9^-171 Data (Official) Age by Race and Hispanic Origin, U.S. Census Bureau, http:// censtats.census.gov/pl94/pl94.shtml (displaying population totals for North Carolina by county) (last visited June 29, 2015). Today, just over twenty years later, the County has over 150,000 residents, with the Hispanic population expanding to approximately 17,700 — comprising 11.8% of the total population. See State & County QuickFacts: Alamance County, North Carolina, U.S. Census Bureau, http:// quickfacts.census.gov/qfd/states/37/37001. html (presenting figures on the demographic layout of Alámanee County) (last visited June 29,2015).

2. Law Enforcement Challenges in Alamance County

The Sheriff contends that the County’s recent growth has brought with it increasing crime, including a serious drug trafficking problem with associated drug-related violence. In particular, the Sheriff presented uncontested evidence that major Mexican drug trafficking organizations (“DTOs”), including the Sinaloa drug cartel, have relocated operations to Alamance County, making it a hub for drugs and crime. (Doc. 152 at 109, 112, 114.) According to a 2010 Department of Justice (“DOJ”) and Drug Enforcement Administration (“DEA”) report, Mexican DTOs “mov[ed] their operations beyond metropolitan Atlanta into rural areas of Georgia, North Carolina, and South Carolina ... to avoid law enforcement pressure in the Atlanta ... region.” (Id. at 114; see also Def. Trial Ex. 30 at 7.) The DOJ’s criminal enforcement division, a sister division of the one bringing the present action, has specifically identified Alamance County as a national concern. (Def. Trial Ex. 30 at 8.) Throughout the time period at issue in this case, as detailed below, the DEA has actively enlisted ACSO’s assistance in enforcing the nation’s drug laws against drug traffickers in Alamance County.

Mexican DTOs send illegal drugs, such as cocaine, “directly from Mexico” to distribution hubs like Alamance County. (Doc. 152 at 100.) According to one ICE agent, drugs in North Carolina come “predominately from Mexico” and are received “mainly” by Mexican nationals in'North Carolina. (Doc. 153 at 24.) If not seized in Alamance County, the drugs then move farther along the DTO distribution chain to' cities like Chicago, Illinois, and states like Virginia and South Carolina. (Doc. 152 at 101.) Proceeds from the DTOs’ drug transactions are returned to drug trafficking operators in Mexico. (Id.)

Inside Alamance County, DTO “cell heads” run logistics for the distribution chains. (Id. at 116.) DTOs mostly employ family and friends in the United States as drug recipients, and family and friends in Mexico receive drug proceeds sent from the United States. (Id. at 112.) As a result, many American-based DTO cell heads are Mexican citizens with direct ties to Mexico. (Id. at 112, 116.) When DTO cell heads in places like Alamance County are arrested, they are replaced with DTO members from Mexico or the U.S. border. (Id. at 115-16.) Thus, according to DEA Agent Waltér Serniak, Jr., while drug users are “not of any particular ethnicity,” (id. at 129), greater than 90% of those arrested in Alamance County in connection with drug trafficking are Hispanic. (Id. at 115-16.)

The increased presence of Mexican DTO cell heads in Alamance County has brought an increase in drugs, drug money, guns, and violence. DTO members often keep stash houses to store drugs, money, and guns. (Id. at 101.), According to Agent Serniak, the DTOs keep a “great number” of stash houses in Alamance County and often operate within the County’s mobile home parks. (Id. at 101, 104; see also Doc, 154 at 106-07.) For example, a recent DEA raid of a mobile home park in Alamance County yielded a seizure of hundreds of thousands of dollars in drug money. (Doc, 152 at 104; see also Def. Trial Ex. 4 (showing money seized from a stash house).) DTOs have become so sophisticated and entrenched that they launder money through local businesses within the County. (Doc. 152 at 105.)

The DEA has conducted a number of raids in Alamance County, which have resulted in seizures of drugs and weapons connected to Mexican DTOs, For example, the DEA discovered approximately 12 kilograms of cocaine destined for the D.C./Baltimore area in 2005, 39 kilograms of cocaine in 2009, and one kilogram of heroin from the Green Level community. (Id. at 101-03, 109-10.) Drug-related weapons seizures are common, and their prevalence has increased in recent years. (Id. at 104-05.) The DEA has seized high-caliber handguns, rifles, and assault rifles. (Id.; Def. Trial Ex. 4.) And, with the confluence of money laundering, drugs, and weapons, the DEA has investigated drug-related homicides in the County. (Doc. 152 at 111; Def. Trial Ex. 4.) Overall, the DEA’s operations have netted seizures of over 100 firearms, millions of dollars, and hundreds of kilograms of cocaine. (Def. Trial Ex. 4.)

United States Interstates 40 and 85 join as a common highway in Alamance County, dissecting the County horizontally at its midsection. The town of Green Level lies just north of the highways and offers an example of the collateral damage resulting from the growing drug trafficking in the County. The Green Level community faced, and continues to face, “a drug problem” from DTOs that has left many residents living in fear. (Doc. 152 at 62-63, 65.) Sandra McCollum, Green Level’s town clerk, testified that when “you would go down the streets, you could not get through to get to your home because drug activities was [sic] in the street,” (Id. at 63.)

Green Level’s mobile home communities, especially the Seamsters and Otter Creek mobile home parks, have been frequent sites of significant illegal drug and criminal activity. (Id, at 65, 67, 71, 75.) The Otter Creek mobile home park has suffered murders, drug activity, and kidnappings. (Id. at 75.) The owner of Seamsters has sought law enforcement help in combatting drug and gang activity in his park. (Id. at 72.)

Starting in 2002, Green Level’s council members — all African American — contracted with ACSO for placement of a “substation,” which included the assignment of an ACSO sergeant, at Green Level’s town hall. (Id. at 63.) Council members also requested increased ACSO policing, which required more frequent patrols and checkpoints (id. at 69), and more frequent inspections of- the town’s mobile homes by both ACSO and the Ala-mance County Inspection Department to enforce town ordinances against abandoned trailers being used for criminal activity. (Id. at 68-70.)

By 2010, Alamance County’s rising drug trade led the DOJ and the DEA to designate the County a “High Intensity Drug Trafficking Area,” a classification reserved for counties representing “a high threat of drug trafficking, of violence.” (Id, at 106, 113, 115.) The County was one of only seven in the State to be so designated (id. at 115), and it retained the designation at the time of trial. (Id.) According to Agent Serniak, who participated in many of the DEA’s activities in the County, Mexican DTOs remain a “danger” to Alamance County residents. (Id. at 113.)

B. ACSO and Sheriff Johnson

This is the environment in which Terry Johnson was elected ACSO Sheriff in December 2002 (following a 30-year career with the North Carolina State Bureau of Investigation (“SBI”)), a position to which he has since been continuously re-elected. (Doc. 154 at 55-56.) In North Carolina, the position of sheriff is constitutionally-provided for, and a sheriffs office is a separate legal entity from each county. See N.C. Const. Art. VII, § 2; N.C. Gen.Stat. § 162-1; Cranford v. Frick, No. 1:05CV00062, 2007 WL 676687, at *3 (M.D.N.C. Feb. 28, 2007) (“[T]he Office of the Sheriff is separate and distinct from the Board of County Commissioners because a sheriff is elected by the people, not employed by the county.” (quoting Little v. Smith, 114 F.Supp.2d 437, 446 (W.D.N.C. 2000)) (internal quotation marks, omitted)); Goodwin v. Furr, 25 F.Supp.2d 713, 715-16 (M.D.N.C.1998) (noting that a sheriff is an “independently elected official”, and “a county is not liable for the acts of the sheriff and deputies”); Clark v. Burke Cnty., 117 N.C.App. 85, 450 S.E.2d 747, 749 (1994) (“A deputy is an employee of the sheriff, not the county.”). ACSO is the largest law enforcement agency in the County, employing approximately 123 full-time deputies and 147 civil employees.

As the head of ACSO, Sheriff Johnson is vested with the- authority to set its policies and procedures, which he implements both individually and through his' officers. (Doc. 154 at 89; N.C. GemStat. § 162-24.) The Government contends that, since he has taken control, Sheriff Johnson and ACSO have engaged in a pattern and practice of discriminatorily enforcing the law against Hispanics. The Government’s evidence as to the various ways in' which this was allegedly done "is addressed below.

1. The Introduction and Implementation of ICE’s 287(g) Program in Alamance County

A principal feature of the Government’s case rests on its claim that ACSO sbught out and used federally-granted immigration authority in a discriminatory manner against Hispanics. (See Doc. 1 ¶¶ 47-51; Doc. 158 at 61-63.) The thrust of the Government’s claim is that Sheriff Johnson abused authority . granted . under Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g), to direct ACSO officers to target and arrest Hispanics so that they could be detained at the Aa-mance County Detention, Center (the “ACDC”) and ultimately processed by federal authorities for deportation.

Section 287(g) authorizes the Attorney General to delegate federal immigration enforcement authority to certain State employees. Known, as “287(g) programs,” these arrangements permit state and local law enforcement officers to investigate, apprehend, and detain aliens in the U.S. See 8 U.S.C. 1357(g)(1). To investigate the possibility of employing a 287(g) program, Sheriff Johnson contacted • the Sheriff of Mecklenburg County ■: (Charlotte), North Carolina, who had.the first such program in the State, to learn about his experience with it. (Doc. 154 at. 157.) . That sheriff found it to be the “best crime fighting tool that he had ever been involved ■ with.” (Id.) Sheriff Johnson eventually flew to Aabama- to observe how the program was implemented there, and, in about 2006, he spoke with ICE officers. (Id.) Satisfied with what he had learned, and at the urging of an Alamance County Commissioner, the Sheriff applied for participation in the program through ICE in Washington, D.C.; by January 2007, ACSO entered into a 287(g) agreement — known as the Memorandum of Agreement (“MOA”) — with ICE and Alamance County. (Id.)

According to Sheriff Johnson, the 287(g) program offered a tool to increase safety within the ACDC. (Id. at 81.) Prior to the 287(g) program, ACSO found itself often unknowingly placing rival Hispanic gang members within the same prison cell, causing fights, increasing medical costs, and giving rise to'lawsuits. (Id.) Via the MOA, ACSO officers could better identify detainees and coordinate with federal agents who enforced immigration violations. (Doc. 149 at 127-28.) Also, the 287(g) program offered a financial incentive, as ACSO would be paid by ICE for the cost of housing all ICE detainees at the ACDC, irrespective of whether the detainees were originally arrested by ACSO, ICE, or another of the many law enforcement agencies using the ACDC as a jail. (Doc. 147 at 151-52.)

One aspect of the MOA was a “jail enforcement program,” by which ACSO officers trained through ICE would receive immigration enforcement certification and, once certified, would return to' ACSO to enforce federal immigration laws within the ACDC. (Doc. 149 at 127-28.) ICE also stationed its own agents within the ACDC to' supervise those 287(g)-certified ACSO officers. (Id. at 138-39; Doc. 152 at 157-58; Doc. 154 at 33-34.) While anyone arrested by ACSO and jailed could be turned over to ICE within the ACDC, who could determine whether they were in the country illegally, the ACDC also served as a detention center for persons ICE and eleven other law enforcement agencies arrested (independently of ACSO) in the surrounding counties. (Doc. 152 at 164; Doc. 154 at 23-24.) In practice, about only one detainee a week was processed through the ACDC’s 287(g) program, and the “bulk” of those were persons brought in from ICE’s other offices — not from ACSO. (Doc. 152 at 164 (“[T]he actual 287(g) processing[s] were not large numbers.... [T]he bulk of the alien population housed at Alamance County jail actually came in from ICE arrests made by ICE officers or other 287(g) officers in other counties.”).) The vast majority of ICE’s detainees were from Mexico. (Id. at 166.) Thus, while the Government at trial emphasized the financial incentive to ACSO for arresting and detaining persons who were not in the country legally, the reality was that the vast majority of the ICE detainees held at the ACDC were arrested by someone other than ACSO and were simply housed at the ACDC. As a result, ACSO had no involvement in their identification or apprehension.

Throughout its operation in Alamance County, ACSO’s 287(g) program received annual reviews from ICE. (Id. at 148-50.) ICE found it to be “an exemplary unit.” (Id. at 149.) In fact, after one review, ICE used ACSO’s information as an exemplar to provide to ICE’s other 287(g) units. (Id. at 149-50.) A 2011 review from ICE concluded, “The 287(g) program in Ala-mance County is adhering to the priorities and obligations set forth in the MOA.” (Def. Trial Ex. 56 at 6.) The review also acknowledged that, in 2011, “no complaints of any kind have been received by the ACSO or ICE concerning the 287(g) program.” (Id. at 5.)

ICE eventually withdrew ACSO’s 287(g) MOA in 2012, however, following the complaints that led to the filing of the current lawsuit. (Doc. 149 at 126,128.)

a. 287(g) Program’s TFO

Early in Alamance County’s 287(g) program in 2007, Gloria Fichou, Special Agent-in-charge of Homeland Security (now retired) in ICE’s regional office over Alamance County, contacted Sheriff Johnson because the federal government hoped to designate an ACSO officer as a Task Force Officer (“TFO”) for ICE’s Homeland Security Investigations. (Doc. 153 at 17-18; Doc. .154 at 80.) A TFO is cloaked with 287(g) authority to perform investigations in the field, as opposed to simply in the jail. (Doc. 149 at 129.) Sheriff Johnson selected Deputy Jeff Randleman to serve as the .TFO, based on Deputy Ran-dleman’s experience with investigations. (Doc. 154 at 80.) At the time of Deputy Randleman’s selection in 2007, Fichou told Sheriff Johnson that Deputy Randleman could serve as a 287(g) detention officer in the ACDC and as a TFO under her supervision. (Id. at 80-81; Doc. 153 at 18-22.)

Stationed in both Alamance County and ICE’s Winston-Salem office, Deputy Ran-dleman worked as an ICE TFO for approximately one year. (Doc. 149 at 171-73; Doe. 153 at 20.) In addition to his certification as a 287(g) detention officer, he received training as a TFO. (Doc. 149 at 171; Doc. 153 at 20 (8 weeks of ICE training).) Fichou supervised Deputy Randleman, and an ICE special agent would sometimes work with Deputy Ran-dleman as well. (Doc. 153 at 20.) Deputy Randleman’s investigations as a TFO required Fichou’s authorization. (Id. at 27.) Fichou, however, would occasionally turn over ICE investigations to ACSO as well. (Id. at 25.)

During this time, Deputy Randleman also remained employed, by ACSO. (Doc. 149 at 171.) Thus, while a TFO, Deputy Randleman-would receive work from both Fichou and Sheriff Johnson, and he would self-initiate investigations, as he had before. (Id. at 172-73, 177.) Any cases assigned to him by Sheriff Johnson were reported to his training officer, with Fi-chou receiving monthly reports about his ACSO work, but Deputy Randleman spent “more time” helping ICE during his time as a TFO. (Id. at 177-78.) Fichou ac-. knowledged that she was aware of all 287(g) matters on which he worked. (Doc. 153 at 20-21.)

While serving as a TFO, Deputy Ran-dleman performed a number of tasks. For one, he would assist in gang roundups. (Doc. 149 at 174.) Organized and coordinated by ICE and the DEA, these are operations in which law enforcement agents execute a number of arrest warrants on certified gang members. (Doc. 147 at 75; Doc. 149 at 174; see also Doc. 152 at 102-OS (stating that the DEA would also run gang roundups in Alamance County).) At ICE’s request and prior to executing warrants, ACSO’s gang unit would provide ICE’s 287(g) officers with a list of certified gang members. (Doc. 147 at 75; Doc. 151 at 124, 139-41.) Both before and after his time as a TFO, Deputy Randleman — -who had access - to several databases that included North Carolina Department of.Motor Vehicle records — would conduct background checks on gang members prior to the roundup operations. (Doc. 149 at 173-75.) The majority of the gang members involved in these ICE operations were Hispanic, but Asian, South African, and South American gang members were- also involved. (Id, at 136,174.)

Deputy Randleman also worked on numerous identity fraud arid' theft' cases while serving as a TFO. The Government cites one of the cases as evidence of ACSO targeting — an identity fraud case he investigated involving an individual named Marxavi Angel-Martinez. (Id. at 179.) The case arose when an Alamance County employee reported to ACSO that a Hispanic employee at the Alamance' County library, was receiving maternity benefits and food stamps illegally through another person’s Social -Security number. (Id, at 179-80, 201-02; Doc. 154 at 86.) ACSO checked the names of the library employees, and only one name stood out as being possibly Hispanic. (Doc. 154 at 87, 102.) Sheriff Johnson asked Deputy Randleman to investigate, and, working with an ICE agent, Angel-Martinez was identified as a suspect. (Doc. 149 at 179-80; Doc. 154 at 87.) The case was referred to federal prosecutors, -who later charged Angel-Martinez with Social Security fraud. (Doc. 149 at 201.)

The Government also points to an instance when Deputy Randleman assisted in an identity fraud' investigation requested by Alamance County Manager David Smith. (Id. at 181-83; Doc. 154 at 26-28.) Smith asked ACSO Chief Deputy Timothy Britt to verify the Social Security numbers of several newly-hired employees.' (Doc. 154 at 27.) Of the approximately fifteen names provided to Chief Deputy Britt, ohly one was not Hispanic. (Doc. 149 at 182.) Working with Deputy Randleman, an ICE Agent contacted the Social Security Administration with the list of names and learned that one of the names was fraudulent.- (Id. at 182-83.)

The Government also cites Deputy Ran-dlemaris TFO investigation of a complaint of identity theft raised by Alamance County resident Kay Oliver. (Id. at 183.) Oliver reported to Sheriff Johnson that he was the victim of identity theft, and the Sheriff instructed Deputy Randleman to “look into it.” (Id. at 184.) Deputy Ran-dleman ascertained that Juan Ariano Vazquez in Weaverville, North Carolina, was illegally using Oliver’s Social Security number. (Id. at 183-85.) Deputy Randle-man secured a warrant, arrested Vazquez in Buncombe County (approximately 200 miles away), and brought him to Alamance County to be charged, (Id. at 185-86.) The Government characterizes Deputy Randlemaris efforts as an extraordinary measure that reflects an intent to enforce the law more ■ stringently against Hispanics, noting that Oliver had a reputation in the community of being anti-immigrant. (Id. at 189-90.) Deputy Randleman testified, however, that Sheriff Johnson never directed him to make the trip, it was the only occasion as a TFO where he went outside the County-to make an arrest, and executing a warrant outside of Alamance County is nevertheless a “part of regular law enforcement.” (Id. at 185-86, 203-04.) Ultimately, the U.S. Attorney’s Office declined to prosecute the case (for reasons never explained at trial), although the Government never offered any indication that Vazquez’s arrest lacked probable cause. (Id. at 190-91; 204.) The case was prosecuted by the Alamance County district attorney. (Doc. 149 at 205.)

Finally, the Government cites a traffic accident investigation' Deputy Randleman conducted while a TFO in 2007 or'2008. (Id. at 191; Doc. 154 at 167-68.) The matter began when Alamance County Commissioner Ann Vaughan came to Sheriff Johnson’s office, “raising Cain” following an accident. (Doc. 154 at 76.) She complained that the' other driver was a Hispanic man who cut her off in traffic, caused her to hit his' car, then left the scene of the accident to refuel. (Id. at 168.) Apparently before he left'to put gas in his car, the driver told Vaughn not to call the police when she reached for her phone. (Id. at 168, 172.) This struck a nerve with Vaughan, who told the man, “[I]n this country, we report all accidents,” and then called the Burlington Police Department. (Id. at 168.) The officers responded but ultimately declined to cite the other driver for the accident or for apparently having three adults and three children unbelted in the front seat. (Id.)

Vaughan was upset, She showed Sheriff Johnson her accident report and demanded that he do something. (Id. at 168-69.) Sheriff Johnson asked if the driver was in the country illegally, and she responded that a red flag went up because of his urging her.not to call the police. (Id.) Sheriff Johnson said, “We are not supposed to do this, but let me see if my man is busy.” (Id. at 169.) He summoned Deputy Randleman, showed him a photo of the driver (apparently from a driver’s license), -and said that the person, who appeared to the deputy to be Hispanic, lived in a mobile home park off North Church Street, an area known to be predominantly Hispanic. (Doc. 149 at 191-92.) Sheriff Johnson gave Deputy Randleman no reason to suspect the driver was an illegal immigrant and simply directed him to “follow up on it.” (Id. at 192.)

The Sheriff explains that he was reluctant to get involved because traffic citations within the City of Burlington lay within the jurisdiction of the Burlington Police Department. Nevertheless, Deputy Randleman ran the individual’s name through the immigration database, and the search yielded no results. (Id. at 193.) The Sheriff reported to Commissioner Vaughn that the driver had a valid North Carolina driver’s license and was not an illegal -immigrant. (Doc. 154 at 169-70.) With this,- the investigation ended.

The Government characterizes Deputy Randleman’s inquiry as an abuse of his TFO authority and' evidence of an intent to target Hispanics. While the date of the inquiry was not made clear at trial, if the matter occurred during Deputy Randle-man’s role as TFO, he had at least apparent authority to investigate the driver’s immigration status. It bears noting that Vaughn presented at trial-as an outspoken and assertive witness; she is also a political adversary of the Sheriff. The court is persuaded that, but for Vaughn’s persistence and will, the Sheriff never would have gotten involved in the inquiry,

b. Termination of TFO Position

In about 2008, an ICE audit revealed an issue with the MOA as to Deputy Randle-man’s TFO authority. (Doc. 149 at 172; Doc. 152 at 160; Gov’t Trial Ex. 58; Def. Trial Ex. 54.) Jill Arndt, ICE supervisor (now retired), had reported a concern about it but had been “getting conflicting information from ICE[’s] Office of Investigations” about ICE’s ability to use Deputy Randleman as a TFO. (Doc. 152 at 160.) According to Fichou, “there was no clear-cut policy in regards to the 287(g) program” at the time she approached Sheriff Johnson to request a TFO. (Doc. 153 at 22.) And Fichou -had never questioned Deputy Randleman’s authority to operate as a TFO. (Id. at 21-22.) ICE eventually interpreted the MOA not to authorize Deputy Randleman to be a TFO within ICE’s Homeland Security Investigations (id. at 21-22), so ICE withdrew Deputy Randle-man’s TFO authority, and he promptly discontinued any further work as a TFO, returning to his position as a 287(g) detention officer in the ACDC. (Doc. 149 at 172, 175.)

Up to and during trial, the Government portrayed Sheriff Johnson’s designation of Deputy Randleman as TFO, the deputy’s activities as a TFO, and ICE’s withdrawal of TFO authority as evidence that ACSO abused its authority under the 287(g) program by engaging in investigations outside the permission granted by the MOA. However, federal ICE agents — called by the Sheriff — made clear that this was not the case. Fichou,. Special Agent-in-charge of ICE’s regional office over Alamance County at .the time, testified credibly at trial that it-was she who had approached the Sheriff about the possibility of such an arrangement (Doc. 153 at 18) and that any mistake with regard to the TFO’s authority was ICE’s,. not ACSO’s (id. at 21-22). Arndt confirmed this assessment: “I believe it was purely an ICE issue as far as ICE, and don’t get me wrong. Nobody did this on purpose. ICE was giving conflicting information; and once it was discovered in the management audit, as it was supposed to, it was fixed.” (Doc. 152 at 166.)

c. Gun Permit Investigations

Under North Carolina law, county sheriffs’ offices bear responsibility for issuing gun permits. See N.C. Gen.Stat. § 14-404. The law specifically requires that county sheriffs verify that “it is not a violation of State or federal law for the applicant to purchase, transfer, receive, or possess a handgun.” Id In accordance with the law, a clerk at ACSO handles background checks for gun permits with subsequent review by ACSO captains and a major. (Doc. 154 at 38-39.) Former Chief Deputy Morris McPherson oversaw this process at ACSO until he retired in 2009. (Id at 41.)

Through the duration of the 287(g) program, ACSO used its access to immigration databases to investigate individuals applying for gun permits. (Doc. 149 at 132-33.) While working as a certified ICE agent in the ACDC, ACSO Lieutenant Randy Denham ran searches through these databases following requests from ACSO Majors Shelton Brown and Monte Holland. (Id. at 133, 142-43.) These searches checked criminal history and, because it is a violation of federal law for aliens illegally or unlawfully in the United States to possess a firearm, see 18 U.S.C. § 922(g)(5), immigration violations. (Doc. 149 at 152.) At times, Lieutenant Denham conducted such checks weekly. (Id. at 134.)

The Government correctly contends that the use of any ICE database by ACSO officers (other than by a TFO before such authority was rescinded) for gun application checks exceeded ACSO’s authority under the MOA because the applicants were not in ICE custody. Lieutenant Denham did not appear to be aware of that, however, and he maintained that his ICE supervisor was aware of his investigatory background checks and approved them. (Id. at 143.) Fichou and Arndt — both female— denied awareness of the background checks (Doc. 152 at 169; Doc. 153 at 29-30), yet Lieutenant Denham’s statement is still credible because he testified that he stopped the checks in 2011, once his ICE supervisor — a male — raised a concern. (Doc. 149 at 133 (“[T]he supervisor over deportation and detention for ICE, come to me, and he was concerned that this may be a problem, and he decided that we need to stop.” (emphasis added)), 147, 151.) Sheriff Johnson was never aware .that ACSO used the 287(g) program to carry out ACSO’s statutory obligation to investigate gun permits. (Doc. 154 at 88.)

The Government does not suggest that the checking of ICE databases in and of itself violated any law, and presumably ACSO officers could lawfully ask ICE to do so in order to discharge their obligation to avoid issuing gun permits to ineligible aliens. The Government’s main contention seems to be that all names submitted for background checks sounded Hispanic (Doc. 149 at 134), yet not all applicants were Hispanic, thus evidencing a potentially discriminatory investigative practice. However, the Government elicited no evidence as to the makeup of gun permit applicants or ACSO’s procedures for checking such applications. Thus, it is unknown whether ACSO checked all applicants’ names for legal status and through some different means determined that the others were U.S. citizens. Although the majors were the officers referring the names to Lieutenant Denham, the Government did not call Major Holland and, when it called Major Brown as a witness, failed to ask a single question about the gun permit background checks.

d. ACSO’s Processing and Booking Procedures

The Government contends that ACSO changed its arrestee booking procedures to target Hispanics “for heightened immigration enforcement” after entering into the 287(g) MOA. (Doc. 1 ¶¶ 47-51; Doc. 158 at 65-66, 132.) According to the Government, after the start of the 287(g) program, ACSO required that all persons arrested be “fully booked” into the ACDC, subjecting more individuals — namely Hispanics — to questioning about their immigration status. (Doc. 158 at 65,132.)

The Government relies mainly on the testimony of North Carolina Magistrate Susan Wortinger. {Id.- at 61-62, 65-66, 132.) Magistrate Wortinger has served' 12 years in her position, having previously been employed by ACSO from 1996 to 2002. (Doc. 149 at 155-56:) Her office is in the ACDC. (Id. at 157.)

According to Magistrate Wortinger, before ACSO participated in the 287(g) program, it only booked felony arrestees into its jail. (Id. at 159-60.) She stated that ACSO’s policy changed after implementation of the 287(g) program to require persons arrested for misdemeanors to be booked as well, even if they could pay their fine or the bond. (Id.; see also Doc. 147 at 43^44 (Evans stating that the policy “probably” changed around 2007).) Magistrate Wortinger observed more Hispanics come through the ACDC after the 287(g) program and the change in booking procedure. (Doc. 149 at 162.) She, however, inaccurately believed that the 287(g) program lasted “[mjaybe two years,” when it in fact lasted closer to five years. (Doc. 149 at 158; id. at 126, 128; Doc. 154 at 157.) Citing this testimony, the Government contends that ACSO changed its booking procedures following the 287(g) program to' check the citizenship' of misdemeanor arrestees to facilitate their deportation. (Doc. 158 at 132.) The persuasive evidence at trial, however, conflicts with this account of ACSO’s use of the 287(g) program.

Sheriff Johnson changed ACSO’s procedures well before implementation of the 287(g) program. North Carolina law permits law enforcement to photograph and fingerprint arrestees, whether or not they are later committed to a jail, unless they are only charged with certain. lower level motor vehicle misdemeanors. N.C. Gen. Stat. § 15A-502(a). In accordance with the. law and several years before implementation of the 287(g) program, Sheriff Johnson instituted a policy requiring officers to fingerprint and photograph felony as well as misdemeanor arrestees, including, those who have no driver’s license and cannot be identified, irrespective of ethnicity or race. (Doc. 154 at 58-59; see also Doc. 147 at 33 (Perry — called by the Government-testifying that Sheriff Johnson changed the policy a few years before the 287(g) program was implemented).) The Sheriff explained that he did this to remedy a developing problem:

[T]he reason for that was that we were having, people arrested under different names; and when I come in the office, we had an overcrowding in the old jail because our new jail had not been finished.- And when I went down to look at the records, I was seeing people’s same picture but under different names, and also people were not showing up for court when they were arrested or given a citation..

(Doc. 154 at 58.) The new procedure, permitted by North Carolina law, enabled ACSO to properly identify all persons arrested.

The evidence at trial was unclear as to how Sheriff Johnson’s photographing and fingerprinting policy affected, if at all, the number of individuals “booked” into the ACDC and subject to 287(g) questioning. After an arrested individual was brought to the ACDC, the arresting officer completed arrest and property sheets. (Doc. 152 'at 135-38; see also Doc. 154 21-23.) In doing so, the arresting officer inquired whether the arrestee was a U.S. citizen. (Doc. 152 at 138.) This process was completed “in the prebooking area” where the arrestee went before the magistrate. (Id.)

Then, after a judicial officer (usually the magistrate, but sometimes a judge if not at the ACDC) found probable cause for the arrest, he or she set the arrestee’s bond and determined whether the individual could pay the bond so as to be released. (Doc. 152 at 138-39; Doc. 154 at 23-24.) If an arrestee could not meet bond, he or she would -proceed to the booking area and there be subject to possible 287(g) questioning depending on the response to the citizenship question provided on the" arrest and property sheets. (Doc. 152 at 138-40; see also Def. Trial Ex. 52.) If an arrestee could meet bond, however, there was persuasive evidence that he or she might be able to leave without being subject to 287(g) questioning. '

The Government’s complaint further alleged that- arrestees are referred for 287(g) questioning based on ACSO officers’ assumptions about nationality or ethnicity and thus that ACSO targets Hispanics for immigration questioning. (Doc. 1 ¶¶48, 50-51.) To support this allegation, the Government relies on its leading question to Major Alan Miles, who agreed that, during the 287(g) program, “it was impor-. tant to [him] to make sure that people who appeared to be of foreign descent were booked into the jail.” (Doc. 149 at 214.) This was the sole statement regarding the misuse of the 287(g) program within the ACDC, and there is no other evidence on record to support it. Even taking Major Miles’ response at face value, there is no evidence that he or other detention officers, who were stationed in the ACDC, could control whether an arrestee was booked into the jail.

Moreover, there is no evidence as to how many (or few) Hispanics arrested by ACSO were booked into the ACDC and subjected to 287(g) questioning. Certainly, the Government never presented any booking reports or other similar evidéncé from ICE or ACSO to support such a claim. Eather, ICE witnesses called by ACSO, explained that ACSO’s 287(g) officers processed only about one detainee per week at the ACDC through the 287(g) program, and “the bulk” of those detainees actually came from other ICE .offices. (Doc. 152 at 163-64.) Thus, in actuality, ACSO officers contributed only infrequently to the number of ICE detainees housed in the ACDC. \

To the extent that Magistrate Wortinger observed more Hispanics “come- through the jail” after the. implementation of 287(g), this observation aligns with the testimony of former ICE Special Agent Jill Arndt. (Dpc. 149 at 162.) At trial, she explained,

[T]he bulk of the alien population housed at Alamance County jail, actually came in from ICE arrests made by ICE officers qr other 287(g) officers in other counties, and Alamance County jail was actually housing ICE detainees, and the bulk of the numbers at Alamance County jail were , not 287(g) arrests from Alamance County. They were, in fact, , people who had been arrested from ICE officers at other 287(g) 'locations, and we housed those individuals at the Alamance County jail.

(Doc. 152 at 164.) Chief. Deputy Britt added that eleven “contributing” State law enforcement agencies also used ACSO’s facilities for booking. (Doc. 154 at 24; see also Doc. 152 at 138-40 (Sergeant Dan Cubino testifying th'atj no matter the jurisdiction, an arrestee was taken before the magistrate).) Thus, Magistrate Wortinger’s observations of increased Hispanics at the ACDC are consistent with Arndt’s account of the 287(g) program’s operations but reflect an apparent misunderstanding of the reasons for the' increased traffic. The increase 'in traffic was predominantly caused by some combination of ICE’s arrests and those of the eleven law enforcement agencies, other than ACSO, using the ACDC.

Lastly, Magistrate Wortinger testified that, during , the operation of the 287(g) program, she saw Officer Troy Anthony on one occasion with a “stack” of alien registration cards and U.S. passports. (Doc. 149 at 163-64.) Officer Anthony referred to them as his “collection.” (Id. at 164.) Magistrate Wortinger saw one of the documents, which appeared to belong to a Hispanic. (Id.) She did not know whether the documents were forged and reported her observation to Officer Anthony’s supervisor, Brandon Wilkerson, yet she never followed up to determine what, if anything, became of it. (Id. at 164-65,166-67.) She concedes that she is unaware of ACSO’s policy for taking custody of forged instruments or what the deputies actually did with forgeries they came across during their investigations. (Id. at 166.) Although Officer Anthony “regularly” came before her for some period of time, she never found that any of his arrests lacked probable cause. (Id. at 167.)

Officer Anthony denies that he ever referred to a personal collection to Magistrate Wortinger or that he kept any seized items permanently in his possession. (Doc. 152 at 85-86.) The court credits Magistrate Wortinger’s testimony. Officer Anthony’s conduct on this occasion was a violation of ACSO’s evidence collection policy, which required that all documents seized from detainees be preserved in the evidence locker. (Id.; Doc. 154 at 77-78.)

e. Fairness Alamance

In 2008, as a result of publicity about the 287(g) program, a grass-roots collection of individuals in Alamance County formed Fairness Alamance to air concerns about what the group believed was ACSO’s unfair treatment of Hispanics. (Doc. 151 at 143-44.) Members attended Alamance County Commissioners’ meetings, held them own meetings, and organized a candlelight vigil in support of their views. (Id. at 148-50.)

In response to the group’s expressed concerns, Sheriff Johnson invited its members to the ACDC in 2008, provided a tour of the facility, outlined the 287(g) program, and addressed members’ questions. (Id. at 151.) In February 2009, the Sheriff also gave a presentation on ACSO’s traffic stops at an Alamance County Commissioners’ public meeting. (Id. at 151-52.) The presentation provided information based on the traffic stop data ACSO sent to North Carolina’s SBI. (Id.) In his presentation, Sheriff Johnson invited citizens to personally examine the traffic stop data on the SBI’s website. (Id. at 152-53.)

A leader of Fairness Alamance, Laura Roselle, who served as Professor of Political Science and Policy Studies at Elon University, took the Sheriff up on his invitation. (Id. at 142, 153.) On February 16, 2009, following her review, Professor Ro-selle emailed Sheriff Johnson, hoping to discuss the SBI’s data. (Id. at 154-55.) Sheriff Johnson did not respond to her email, and so she asked him about the data and ACSO’s traffic stop forms at the next County Commissioners’ meeting. (Id. at 155.) The Sheriff incorrectly responded that he did not have the forms and that they were in Raleigh. (Id. at 154-55.) Ultimately, Professor Roselle learned that the SBI’s data contained four times as many citations as traffic stops; although, she did not realize that ACSO’s citations also include non-traffic related offenses. (Id. at 158, 182.) Upon finding this discrepancy, and rather than following up with the Sheriff to notify him of a potential problem, Professor Roselle instead met with a County Commissioner and went to a local newspaper to report what she considered to be inconsistencies in the numbers. (Id. at 159.)

After the news story went to print, ACSO acknowledged that it had independently found a “glitch” in its computer software, causing the underreporting. of traffic stops. (Id.) ACSO had been in the process of changing its software for the third time in a year. (Doc. 154 at 20.) ACSO informed the SBI of its underre-porting, found a new software provider to correct the problem, and instituted administrative review over its traffic-stop data. (Id.) After these changes, Professor Ro-selle’s requests for corrected data went unanswered. (Doc. 151 at 161.)

In addition to traffic stop data, Professor Roselle made a request to ACSO for information on the implementation of 287(g) — specifically for ICE’s detainee records. (Id. at 161-62.) ACSO referred her to ICE for access to those records. (Id. at 162.) Undeterred, during a March 2009 County Commissioners’ meeting, Professor Roselle again requested the records — this time publicly — from the Sheriff, who was in attendance. (Id. at 163-64.) And after ■ the meeting, she approached him to follow up. (Id. at 164.) He explained that, under the MOA with ICE, he lacked the authority to release the records, so she needed to request them from the federal government — specifically ICE. (Doc. 154 at 64.) At some time during his discussion with her, Sheriff Johnson placed his hand on Professor Roselle’s shoulder; this caused her to bristle, and she became quite upset. (Id.) Sheriff Johnson reacted by saying he was “done” with her, raising his hands in the air. (Doc. 151 at 165; Doc. 154 at 64-65.)

The Government offers this encounter as evidence of anti-immigrant animus by the Sheriff. This is an over-read of the situation. Professor Roselle presented at trial as a deeply-motivated advocate who was personally opposed to what she perceived as anti-immigrant efforts by ACSO, distrusted Sheriff Johnson, and was zealous in her persistence.

2. ACSO Arrest Policy and Practice

The Government contends that Sheriff Johnson orders officers to arrest Hispanics, rather than to cite or warn them. (See Doc. 1 ¶¶ 5, 29; Doc. 158 at 2-3, 9-14.) The Government’s proof on this point relies on several witnesses and on statistical evidence (largely through Dr. MacDonald, its expert criminologist and statistician, discussed below).

The Government presented three witnesses who testified that, during one ACSO staff meeting, and perhaps two, Sheriff Johnson directed officers to arrest Hispanics stopped for traffic violations. Kenneth Evans, former ACSO chief deputy, testified that, at a monthly staff meeting (normally held the second Wednesday of every month) around 2007, Sheriff Johnson told officers that if they “went to an Hispanic’s house or [they] stopped one for a traffic violation or if it was a violation, that [they] were to bring them to jail and not write a citation.” (Doc. 147 at 45.) Evans said he did not pass the instruction on to officers under his command, however, “[b]ecause I knew it was wrong,” and there is absolutely no evidence he ever carried it out. (Id. at 45-46.) Similarly, Officer Roger Lloyd testified that at a monthly staff meeting Sheriff Johnson told them that Hispanics without a driver’s license should be arrested and brought to jail, where they would be run through the 287(g) program. (Id. at 151-54.) Officer Lloyd said that the Sheriff had a similar conversation with him, separately and explained that doing so would allow Hispanic detainees to be run through the 287(g) program to be deported, allowing the County to receive money for the federal detention. (Id. at 151-52.) Officer Lloyd was unable to say when such discussion occurred but insisted that he never discriminated against any Hispanic and knew of no ACSO officer who ever had. (Id. at 152-54, 168.) He also conceded on cross-examination that he understood (and his personal practice was) that if he could not identify any suspect, he would arrest him or her so they could be processed and their identity determined. (Id. at 170.) Finally, Brenda Cole — a former ACSO officer — testified that she heard- Sheriff Johnson give the same instruction (to arrest Hispanics) at a monthly staff meeting in 2007 or 2008, but could offer no other context for the statement. (Doc. 151 at 5, 7.) Like the others, Cole insisted that she never carried out the instruction. (Id. at 6.)

No party examined any of these three witnesses as to the context of the statements, but Sheriff Johnson did provide some context and presented evidence challenging the credibility of all three. The Sheriff had fired Officer Lloyd in 2009 for lying to an Alamance County Assistant District Attorney. (Doc. 147 at 162, 171— 75; Doc. 154 at 43-44; Def. Trial Ex. 67.) He had also fired Evans’ wife and nephew from ACSO and demoted Evans upon taking office. (Doc. Í54 at 73-74.) And, Cole had supported Sheriff Johnson’s opponent, Ron Parrish, in the most recent election. (Doc. 151 at 6.)

Nine ACSO employees — some of whom were offered by the Government — testified that they had never heard Sheriff Johnson give an instruction to single out Hispanics for arrest or to do so irrespective of whether they could show identification. (See Doc. 150 at 30,134,157,184; Doc. 151 at 136; Doc. 152 at 175-76, 215; Doc. 154 at 4, 37.) Sheriff Johnson similarly denied ever doing so. (Doc. 154 at 56-57.) Rather,- the Sheriff stated that his command left all arrests to the officer’s proper discretion, so that “if’ an officer arrested an individual stopped without any identification, the individual should be brought in for processing. ■ (Id. at 57-58.) Lieutenant Allen, who attended many of the monthly meetings between 2007 and 2013 and recorded his notes in a binder, never heard any statement singling out Hispanics for arrest, and his contemporaneous notes, albeit not exhaustive, reflect no instruction to support the claimed statement. (Doc. 152 at 215-18; Doc. 153 at 7-9.) ACSO Detective Carlos Rossi, who is Hispanic and has been with ACSO for five and a half years, never heard the Sheriff or anyone else discriminate against or target Hispanics. (Doc. 153 at 212; Doc, 154 at 4.)

There was no evidence of a written ACSO policy. ACSO’s own evidence, while not entirely consistent, did offer some context for ' such claims, however. ACSO Chief Deputy Britt testified that he understood ACSO’s policy to be that an officer was to arrest any stopped individual whom the officer cannot identify and who does not have a driver’s license or other method of identification. (Doc. 154 at 37-38.) Lieutenant Brian Allen similarly described ACSO’s arrest policy as follows: “[I]f it was anybody that we couldn’t positively identify, ... they needed to be arrested, and that’s anybody.” (Doc. 152 at 215-16.) As noted, this is what Officer Lloyd explained as well.

However, the more accurate articulation of what was actually implemented by ACSO officers is the following: if an officer stopped an individual without valid personal identification who eannot be reasonably identified, the officer may arrest the individual at the officer’s discretion, assuming the arrest is for an otherwise arrestable offeiise. Captain Kimberly Wilson, head of ACSO’s patrol division, stated that “[a]n officer is to use his discretion” when facing an individual stopped without any identification. (Doc. 150 at 136, 157.) When asked about Sheriff Johnson’s arrest policy, Captain Wilson reaffirmed, “I expect [officers] to use their discretion,.their sound discretion.” (Id. at 157-58.) Major Shelton Brown — head of operations, which includes the patrol division — echoed Captain Wilson’s reiteration of the arrest policy. (Id. at 165-66.) Major Brown testified that officers making a traffic stop had sole discretion to warn verbally, warn in writing, cite, or arrest.' (Id. at 173-74.) He further maintained that complete officer discretion remained following a traffic stop, “even if the driver doesn’t have a valid driver’s license.” (Id. at 173-74.) In sum, the officer “máke[s] the choice” to arrest. (Id. at 173.) All of this is consistent with'Sheriff Johnson’s articulation of ACSO’s policy, which appears to comport with N.C. Gen.Stat. § 15A-502..

As to the statements attributed to Sheriff Johnson, it is difficult to accept that the Sheriff made them as portrayed, given the lack of context offered for them and the number of ACSO officers who stated credibly that they never heard them. Had the Sheriff made these statements as characterized, it is implausible that an officer or employee (some of whom are Hispanic) would not have questioned his statements and complained. This is especially true in light of the Government’s evidence that all orders of the Sheriff were expected to be obeyed and that all three individuals who claimed to hear such a directive universally testified that they never followed it.

3. Orders to Targét Hispanics

The Government’s complaint alleges that during a staff meeting after January 2007, Sheriff Johnson yelled “bring’ me some Mexicans” while banging on the table, and on another occasion instructed his staff to “go out there and catch me some Mexicans.” (Doc. 1 ¶ 27(a)-(b).)

At trial, .the first claim was supported by Officer Lloyd, who testified that he never heard the Sheriff use the word “Mexicans” but heard him say at one unidentified staff meeting: “bring me Hispanics.” (Doc. 147 at 153-54.) In eliciting this-statement, the Government made no effort to provide any context, and none was given. There was no testimony about banging on the table, and no other witness supported Officer Lloyd’s claim. Sheriff Johnson denied ever making this- statement. (Doc. 154 at 57-58.) The court is doubtful that the claimed statement was made, especially in the unsupported context the Government contends.

As to the second claim, the Government presented testimony from two former ACSO officers. In one instance, according to Corporal Adam Nicholson, Sheriff Johnson once said, “Go get the Mexicans.” (Doc. 147 at 81.) While he could not recall the context, it was most likely when the owner of the Rocky Top mobile home park, which has a significant Hispanic population, came to Sheriff Johnson’s office to complain about crime. Sheriff Johnson summoned Corporal Nicholson, who reported that the “Bandidos,” a Mexican gang operating in that area, had been breaking and entering into trailers in the mobile home park. (Id. at 78, 88-89.) Corporal Nicholson testified that he interpreted the Sheriffs comment as a command to arrest every Hispanic in the park. (Id. at 86-87.) But as Corporal Nicholson conceded, because the park was predominantly Hispanic, such an interpretation would have resulted in the arrest of many, if not most, of the owner’s paying customers. (Id.) Insofar as the owner, who was present, never objected to whatever the Sheriff said or directed, Corporal Nicholson’s interpretation appears overstated and conflicts with his own testimony. In fact, Corporal Nicholson admitted he never arrested anyone, but instead set up a license check point near the park on his own accord “to appease” the Sheriff. (Id. at 78, 87-89.) When pressed further, he conceded that he never intended to arrest non-violent or non-criminal Hispanics, but was after the “Bandidos,” who were the “people who broke the law that day”; and he inferred that is what the Sheriff meant, too. (Id. at 88-89.) Corporal Nicholson also denied that he ever targeted any Hispanics or knew anyone at ACSO who did. (Id. at 92.)

This understanding is consistent with the testimony of Sergeant Christopher Crain, the Government’s other witness, who worked with Corporal Nicholson and recalled an incident when Johnson said, “go get those Mexicans.” (Doc. 151 at 132.) Sergeant Crain recalled th