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March 14, 2002


The opinion of the court was delivered by: Hart, Senior District Judge.


As presently constituted, this case has approximately 90 named plaintiffs, all of whom are African-American women with United States citizenship who allegedly were searched by employees of the United States Customs Service at Chicago's O'Hare International Airport ("O'Hare") following their arrival on international flights. The searches of the named plaintiffs allegedly occurred between March 1996 and August 1999.*fn1 Named as defendants are the United States, the United States Customs Service ("Customs"), and approximately 70 current or former employees of Customs. Management officials, lower-level supervisors, and nonsupervisory employees are sued in their individual capacities.*fn2 Presently pending are certain defendants' motions for summary judgment and related procedural motions.


A. Allegations of the Complaint

Following prior rulings on motions to dismiss, for class certification, and for summary judgment, the following claims remain pending in the Seventh Amended Complaint. See Anderson v. Cornejo, 199 F.R.D. 228 (N.D.Ill. 2000) ("Anderson IV"); Anderson v. Cornejo, 1999 WL 258501 (N.D.Ill. April 21, 1999) ("Anderson II"). See also Anderson v. Cornejo, 1999 WL 35307 (N.D.Ill. Jan. 11, 1999) ("Anderson I").*fn3 Count I is an equal protection claim that Customs inspectors targeted African-American women for nonroutine personal searches.*fn4 Count III is a Fourth Amendment claim that Customs inspectors lacked sufficient cause or suspicion to seize, detain, and search plaintiffs. Count V is a Federal Tort Claims Act claim against the United States that the conduct of the individual defendants constitutes false imprisonment, assault, and battery. Count VI is a Fourth and Fifth Amendment claim that Customs inspectors*fn5 denied due process by not obtaining judicial authorization for the searches and by holding plaintiffs "in communicado."*fn6

Count II is an equal protection claim that Managerial and Supervisory Defendants failed to take proper action to prevent or stop the discriminatory selection of African-American women for nonroutine personal searches alleged in Count I. Count IV is a Fourth Amendment claim that Managerial and Supervisory Defendants failed to take proper action to prevent or stop the illegal seizures, searches, and detentions alleged in Count III. Count VII is a Fourth and Fifth Amendment due process claim that Managerial and Supervisory Defendants promulgated and executed a "policy and practice allowing the Customs inspectors, on nothing more than alleged `reasonable suspicion,' (a) to detain plaintiffs for an indefinite and wholly discretionary time-period; (b) to conduct the non-routine personal searches described herein without judicial authorization; (c) while holding the plaintiffs in communicado."*fn7 7th Am.Compl. ¶ 175. Count IX is a claim that Managerial Defendants, Supervisory Defendants, and possibly Customs inspectors conspired together in violation of 42 U.S.C. § 1985(3) to commit the violations alleged in Counts I, III, and VI, including by establishing criteria for targeting persons to be searched, fabricating search justifications, destroying plaintiffs' Customs declaration cards, and ignoring complaints of discrimination against African-American women. Count X is a claim that Managerial and Supervisory Defendants violated 42 U.S.C. § 1986 by failing to prevent the conspiratorial conduct alleged in Count IX.

Count VIII is a claim for injunctive relief on behalf of a putative class of all persons in the country subjected to nonroutine personal searches at international airports. It is labeled as an Administrative Procedure Act ("APA") due process claim based on the various Customs Commissioners' promulgation of the policy and practice alleged in Count VII.*fn8

The damages claims of each count are on behalf of the named plaintiffs only.*fn9 Classes have been certified for injunctive relief only as to Counts II, IV, VII, VIII, IX, and X,*fn10 Anderson IV, 199 F.R.D, at 287-45, 264-65, 267.

B. The Motions for Summary Judgment

Managerial Defendants Sam Banks ("Banks"), George Weise,*fn11 Kevin Weeks, Sergei Hoteko, and Robert Trotter have moved for summary judgment on all the individual capacity claims brought against them in Counts II, IV, VII, IX, and X,*fn12 primarily on the ground that they were not personally involved in any of the alleged misconduct.*fn13 Managerial Defendant Patrick Noonan also moves for summary judgment, adopting the briefs of the other Managerial Defendants.*fn14 The parties have agreed that any ruling as to Counts II, IV, and VII should also be applied to the claims in those counts that are against Supervisory Defendants Mario Cornejo, Larry DiGianntonio, William Desmond, Gloria, Banks, Ronald Zaczek, Gene Taylor, David Gooding, Dominic Biagioni, Michael Johnson, and Mark Woods, except as to selected searches in which one or more of these Supervisory Defendants were directly involved.*fn15 See Agreed Motion of Certain Defendants to Join in the Pending Motion for Summary Judgment of the Managerial Defendants [Docket Entry 313]. The parties have also agreed that any ruling as to Count IX should apply as to the Count IX § 1985 conspiracy claims against Customs inspectors Olga Martinez, Maria Rocha, Michelle Belcastro, Jennifer Usleber, Melissa Zytowski, Lynda Hall, Guadalupe Corona, Chen W. Yu, and Samuel Ko. See id.

C. Issues Adequately Raised by the Motions

On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the non-movant and all factual disputes resolved in favor of the nonmovant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert denied, 515 U.S. 1104, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); id. at 325, 106 S.Ct. 2548 ("the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

A dispute exists regarding the precise issues raised by defendants' summary judgment motions. Plaintiffs have moved to strike defendants' reply brief and Local Rule 56.1(a) reply [Docket Entry 326]. Plaintiffs have also moved to file a surreply and supplemental surreply. The motion to strike will be denied without prejudice. To the extent defendants' reply contains impermissible argument or improper factual assertions or evidence, the arguments will be rejected or treated as waived and the assertions or evidence will not be treated as establishing undisputed facts. There is, however, no need to actually strike the brief or Local Rule 56.1(a) statement.*fn16 Plaintiffs will be granted leave to file the surreply and supplemental surreply and both surreplies have been fully considered in reaching today's ruling.*fn17

In their opening brief, the Managerial Defendants contend they cannot be liable on Counts II and IV because, with one exception, they were not personally involved in the searches. As to the one exception, it is argued that defendant Hoteko's involvement in the search of plaintiff Arcadia Letkemann was limited to approving a search based on reasonable suspicion. As to Count VII, it is asserted that there is no evidence that the Managerial Defendants promulgated or approved a policy of permitting searches on less than reasonable suspicion. As to Counts IX and X, it is asserted that there is no evidence of an unlawful conspiracy or class-based animus and defendants argue that there can be no conspiracy because defendants were all members of the same organization, that is, there can be no intracorporate conspiracy. As to any individual capacity claim for injunctive relief, defendants contend such claims are moot because they are no longer employed in Customs positions in Chicago. Alternatively, defendants generally assert they would be entitled to qualified immunity as to the damages claims because any law under which they might be held liable was not clearly established as of the pertinent time. In sections 9 and 10, defendants also make the following assertions which are quoted in their entirety.

9. Each Plaintiff Must Show Injury To Obtain Damages.
Plaintiffs have not identified any illegal policies promulgated by the managerial officials and it is hard to imagine how plaintiffs can possibly present evidence sufficient to create a genuine factual dispute that the managerial official[s] conspired to violate plaintiffs' constitutional rights. It should nevertheless be noted that plaintiffs, in addition to showing actionable misconduct by the managerial officials, must as a prerequisite to obtaining damages also prove that they were injured as [a] proximate result of the alleged misconduct. See Indianapolis Minority Contractors Association, Inc. v. Wiley, 187 F.3d 743, 754 (7th Cir. 1999) (plaintiff must show an injury to his person or property or a deprivation of some right or privilege). If the individual Customs inspectors who searched a particular plaintiff were not improperly motivated, then that plaintiff was not injured due to any Constitutional violation by the managerial officials, regardless [of] what the managerial officials may have done. Each plaintiff who wishes to survive summary judgment must present evidence from which a reasonable jury could conclude that she in particular was subjected to an illegal search as a result of the acts of the managerial officials.
10. Each Plaintiffs Case Against Each Defendant must Be Considered on its Own Facts.
As written, the complaint does not distinguish among the plaintiffs as to their various potential claims against the managerial officials. The plaintiffs were searched at different times for different reasons by different Customs inspectors. Different managerial officials worked at different jobs at the times that the various plaintiffs were searched. Until plaintiffs specify the facts on which they base their claim, we cannot say more than we have in this memorandum; we merely note in advance that in response to this motion, each plaintiff has an independent burden to show a factual basis for her damages claim against each managerial official that she wants to keep in the case.

Def. Memo. in Support of Summ. Jmt. [Docket Entry 255] at 12-13.

In their Local Rule 56.1(a)(3) statement [Docket Entry 256], defendants recite the Customs positions they were in and the dates. Although reciting the titles of their job positions, neither the Local Rule 56.1(a)(3) statement nor the supporting affidavits describe the duties and responsibilities of the positions.*fn18 Each of the Managerial Defendants provides an affidavit generally denying direct involvement in any of the searches of a plaintiff, except the one search involving Hoteko. They also generally deny establishing, promulgating, or encouraging any policy to use race or gender in the selection of a person for a search, and instead state Customs inspectors are trained not to consider race as a factor.*fn19 They also generally state that any allegations of discrimination brought to their attention were routinely delegated to subordinates for investigation and appropriate action. Defendants also provide evidence regarding the retention of baggage declarations and the O'Hare Passenger Analysis Unit ("PAU").*fn20 No factual assertions or evidence are provided as to any specific search of a plaintiff other than the search of Letkemann in which Hoteko was involved.

In neither their opening brief nor Local Rule 56.1(a)(3) statement do defendants contend, even in a conclusory manner, that Customs inspectors at O'Hare did not engage in a pattern or practice of discriminatorily selecting African-American women for searches and searching them on less than reasonable suspicion. The closest defendants come to such an assertion is in sections 5 and 6 of their opening brief. In § 5, it is asserted: "In any event, this court may reasonably grant summary judgment as to Count VII, because there is no evidence that the managerial officials promulgated or approved a policy of allowing searches on less than reasonable suspicion." The court understands this conclusory assertion (which is unsupported by any factual statement in defendants' Local Rule 56.1(a)(3) statement nor by any background evidence of the policies actually claimed to be in place) to be a contention that there were no formal policies to that effect, not a denial that a custom, pattern, or practice of such conduct existed. In § 6, it is asserted that "[s]ummary judgment is appropriate as to Count IX because there is no evidence of an unlawful conspiracy." The only reference to somewhat more particularized facts is the contention that the PAU had a proper purpose and that records of passenger entry were destroyed in a routine manner. There is no assertion, even a conclusory one, that there was no unlawful conspiracy because no underlying pattern of discrimination by Customs inspectors. There is also no contention, conclusory or otherwise, that Counts II and IV fail because there is no practice of, respectively, discriminatory selection of African-American women and nonroutine searches without adequate suspicion.

In response to defendants' summary judgment motions, plaintiffs provide detailed factual assertions and evidence to support their contention that the Managerial Defendants were aware of improper searches and the ineffectiveness of search procedures and were personally involved in supporting, encouraging, or turning a blind eye to such conduct. The focus of plaintiffs' response is on the Managerial Defendants' knowledge of policies and practices. Except as to the search of Letkemann, plaintiffs do not provide evidence as to the particular searches of each plaintiff. Although they responded with some evidence as to policies and practices, plaintiffs argue that the summary judgment motions could otherwise be denied in their entirety because defendants failed to provide adequate factual support for their motion. See Pl. Response to Summ. Jmt. [Docket Entry 321] at 30-31. As to the arguments contained in sections 9 and 10 of defendants' brief, plaintiffs also contend that these arguments should not be considered because not supported by sufficient legal argument. See id. at 29 n. 12.

In their reply, defendants focus much of their argument on the contention that plaintiffs have failed to provide evidence that any of them was subjected to an unlawful search and therefore, regardless of any policies or practices, no Managerial or Supervisory Defendant can possibly be liable. Even if an improper policy or practice is shown, defendants contend that plaintiffs have not shown that any of their searches were pursuant to such policy or practice, that is, a causal relationship has not been shown. Defendants also point out that plaintiffs did not dispute that each Managerial Defendant was in his pertinent position during a specific time period, yet plaintiffs fail to acknowledge that plaintiffs searched outside a particular time period cannot have a claim against that defendant. Additionally, defendants contend in their reply that no practice of equal protection or Fourth Amendment violations has been shown.*fn21 In their motion to strike and surreplies, plaintiffs contend each of these arguments is waived because not adequately raised in defendants' opening brief. As to the timing argument, however, plaintiffs provide a chart (Pl.Exh. 77) showing which plaintiffs' searches predated each Managerial Defendant's employment in a Managerial position and concede that such plaintiffs would have no claim against that defendant or defendants.

Even as to issues on which the nonmovant will bear the burden of proof at trial, on summary judgment the moving party has an "initial burden of production . . . to identify those specific portions of the record that it believes demonstrate the absence of a genuine issue of material fact." Logan v. Commercial Union Insurance Co., 96 F.3d 971, 978 (7th Cir. 1996). The movant has "the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(c))). An "unsupported — or `naked' — motion for summary judgment does not require the nonmovant to come forward with evidence to support each and every element of its claims. Russ [v. International Paper Co.], 943 F.2d [589], 591 [(5th Cir. 1991), cert. denied, 503 U.S. 987, 112 S.Ct. 1675, 118 L.Ed.2d 393 (1992)]. Only after the movant has articulated with references to the record and to the law specific reasons why it believes there is no genuine issue of material fact must the nonmovant present evidence sufficient to demonstrate an issue for trial." Logan, 96 F.3d at 979. The movant still must place its argument within a factual context and a court is not obliged to address unfocused arguments. In re ContiCommodity Services, Inc. Securities Litigation, 733 F. Supp. 1555, 1571 (N.D.Ill. 1990), rev'd in part on other grounds sub nom., Brown v. United States, 976 F.2d 1104 (7th Cir. 1992), aff'd in part sub nom., ContiCommodity Services, Inc. v. Ragan, 63 F.3d 438 (5th Cir. 1995), cert. denied, 517 U.S. 1104, 116 S.Ct. 1318, 134 L.Ed.2d 471 (1996). Also, the movant may not raise one ground for summary judgment in its motion and raise a different ground in its reply. Titran v. Ackman, 893 F.2d 145, 147 (7th Cir. 1990) ("When a party moves for summary judgment on ground A, the opposing party need not address grounds B, C, and so on; the number of potential grounds for (and arguments against) summary judgment may be large, and litigation is costly enough without requiring parties to respond to issues that have not been raised on pain of forfeiting their position.").

While defendants' opening brief asserted that no plaintiff can possibly have a cognizable claim against a Managerial Defendant unless she was improperly searched by a Customs inspector, defendants do not even conclusorily or generally assert why the search of any plaintiff was lawful. Nor (with the one exception previously noted) does defendants' Local Rule 56.1(a)(3) statement contain any facts regarding the search of a particular plaintiff. Moreover, if defendants truly intended to raise this issue, there was no reason to limit the summary judgment motion to Managerial Defendants or even Supervisory Defendants. Instead, lack of an unlawful search would be a basis for denying the claims against all defendants (including Customs inspectors), yet there is absolutely no indication that the motion was intended to be brought on behalf of all defendants.*fn22 Defendants did not meet their initial burden of presenting an adequate argument or factual background regarding the lack of any unlawful searches. Plaintiffs were not required to respond with evidence supporting that each of them was subjected to an unlawful search.

Defendants' opening brief also does not adequately raise issues as to the existence of a pattern or practice of discriminatory selection and searches on less than adequate suspicion. For purposes of ruling on the pending summary judgment motions, it will therefore be assumed that such practices existed as to searches at O'Hare. The summary judgment motions do adequately raise the issue of defendants' knowledge of, encouragement of, and involvement in such practices. Plaintiffs are required to provide evidence linking each defendant to such practices, which may necessitate some affirmative evidence of the existence of the practices.

As to an issue of causal relationship between any policy or practice shown and a plaintiffs actual search, no such contention is even conclusorily raised in the opening brief. Defendants cannot raise this argument for the first time in their reply. Plaintiffs were not compelled to provide evidence of a causal relationship between their individual searches and any policy or practice that was in existence.

The only cause issue raised in the opening brief concerns the dates the Managerial Defendants were employed in the pertinent positions and the date each plaintiff was searched. Defendants Local Rule 56.1(a)(3) statement recites the dates each Managerial Defendant served in the pertinent positions. No attempt is made to specifically correlate those dates with the dates particular plaintiffs were searched. Also, neither the opening brief nor defendants' reply makes any argument as to when during a particular Managerial Defendant's service time he may have first learned of the challenged practices or taken an action related to them. Although contending the timing issue is not adequately raised, plaintiffs concede that they are not entitled to recover from any defendant who entered a pertinent position subsequent to a particular plaintiffs search.*fn23

As to all the other arguments raised in defendants' opening brief, they are also generally raised in a cursory manner with only a limited factual background being provided in support thereof. Defendants do make legal arguments as to intracorporate conspiracy and personal involvement. Plaintiffs have been able to respond with a well developed argument (contained in an oversized, 35-page brief) and detailed factual support, including a 196-paragraph Local Rule 56.1(b)(3)(B) statement. Defendants' opening brief adequately raises the issues of (a) whether the Managerial Defendants were personally involved in the alleged unlawful conduct and responsible for any unlawful policy or practice; (b) whether the conspiracy claims fail as an intracorporate conspiracy; (c) whether any conspiracy is based on a racial animus on the part of the Managerial defendants; (d) certain issues as to Hoteko being liable for the search of Letkemann; (e) whether individual capacity injunctive relief is moot; and (f) whether, as to these arguments, defendants are entitled to qualified immunity because the law underlying such claims was not clearly established.*fn24


Resolving all genuine factual disputes and drawing all reasonable inferences in plaintiffs' favor, the facts assumed to be true for purposes of summary judgment are as follows.

A. Managerial Defendants' Positions

Kelly was the Commissioner of Customs from August 1998 through January 2001. Banks was Acting Commissioner of Customs from September 1997 to August 1998. Weise was Commissioner of Customs from May 1993 until August 1997. Trotter was Assistant Commissioner of Field Operations from June 1997 to February 1999. He also acted in that position from October 2, 1996 until March 14, 1997. During all or most of Trotter's tenure, the Chicago Port Director reported to MidAmerica Customs Management Center Director Garnet Fee who in turn reported to Trotter. Trotter reported directly to the Commissioner of Customs.

Weeks was the acting or permanent Port Director of Chicago from February 1997 to July 1998, and since then has been Director of Field Operations for the West Great Lakes Customs Management Center based in Detroit, Michigan.*fn25 O'Hare is within Customs' Port of Chicago. As Port Director, Weeks had monthly meeting with Hoteko and O'Hare's supervisory Customs inspectors. Hoteko was Chief Inspector of Passenger Operations for the Port of Chicago from July 1995 until June 1999 and reported directly to the Chicago Port Director. In that position, Hoteko was responsible for all passenger processing operations for O'Hare international arrivals. Hoteko had weekly meetings with O'Hare Customs inspectors and also met with supervisory Customs inspectors. Noonan was the Passenger Service Representative in Hoteko's office from 1993 or 1994 through May 2000. Noonan's responsibilities included investigating passenger complaints regarding Customs inspectors. As part of his duties, Noonan spent as much time as possible directly observing O'Hare passenger processing.

B. Statements of Commissioner Kelly

Plaintiffs contend that statements of Commissioner Kelly show wrongdoing on the part of Managerial Defendants. This contention is without merit for two reasons. Plaintiffs refer to these statements as "admissions binding on Customs." The present summary judgment motion, however, concerns the individual liability of Customs employees, not the liability of Customs itself. The statements of Kelly are not admissions as against the other parties; Kelly is not a representative, authorized spokesperson, or agent of the other defendants and plaintiffs have dropped their contention that he is a co-conspirator. See Fed.R.Evid. 801(d)(2).

But even if Kelly's statements were admissions that may be used against defendants, plaintiffs generally do not provide admissible evidence showing that he made the statements attributed to him. Kelly apparently was available to be deposed, but plaintiffs chose not to depose him. On summary judgment, quotes or paraphrased statements in a newspaper or magazine article are not acceptable evidence that a person actually made a statement contained in the article. Eisenstadt v. Centel Corp., 113 F.3d 738, 742-43 (7th Cir. 1997); Chicago Firefighters Local Q v. City of Chicago, 249 F.3d 649, 654 (7th Cir. 2001); Jim Sowell Construction Co. v. City of Coppell, Tex., 61 F. Supp.2d 542, 550 (N.D.Tex. 1999); Barnes Foundation v. Township of Lower Merion, 982 F. Supp. 970, 995-96 (E.D.Pa. 1997). The only purported statement of Kelly that is not from a newspaper or magazine article is his May 20, 1999 testimony before a congressional committee, presumably under oath, that Customs' use of personal searches is "a procedure that we have found in recent years to have suffered from poor oversight, insufficient training, and a lack of supervision."

C. Statistical Evidence

Defendants object to plaintiffs' use of a March 2000 General Accounting Office report entitled "U.S. Customs Service: Better Targeting of Airline Passengers for Personal Searches Could Produce Better Results". Pl. Exh. 16 ("GAO Report"). Such governmental reports, however, are admissible evidence. Fed.R.Evid. 803(8). The GAO Report provides some support for plaintiffs' contentions, but it must be recognized that it is an analysis of nationwide practices and generally does not separately consider practices at O'Hare. Banks, Weise, and Trotter, though, were in national positions; their responsibilities were not limited to O'Hare.

The GAO Report analyzes the personal search reports for the approximately 102,000 passengers that were subjected to personal searches in fiscal year 1997 and 1998.*fn26 The personal searches were categorized as patdowns (or frisks), strip searches, X-ray examinations, and body cavity searches. 95% of the personal searches were limited to patdown searches.

Among United States citizens selected for searches,*fn27 Whites were the racial group most likely to be strip searched (8.2%). However, within each racial group except Whites,*fn28 women were more likely to be strip searched than men. Broken down by race and gender, Black women were the most likely group to be strip searched (14.2%), a rate 73% higher than the next highest groups (White men and White women) and 281% higher than Black men. It is also more than 6 times the rate of Hispanic men (2.2%) and more than twice the rate of Hispanic women (6.1%). Black women were also the racial/gender group of United States citizens most likely to be X-rayed (6.4%), a rate more than 8 times that of White women (0.73%) and almost 12 times that of White men (0.53%), as well as 39% higher than Black men (4.6%).

As for searches at O'Hare, plaintiffs have gleaned data from the negative search reports that were provided in discovery. These reports are limited to passengers subjected to personal searches on whom no contraband was found. For the period from January 1, 1995 to April 2000, African-American women were 9.9% of those subjected to all types of negative personal searches. However, they were subjected to 41.6% of the negative strip searches and 34.4% of the negative X-ray examinations. By comparison, African-American men were 13.2% of all negative searches, 6.7% of negative strip searches and 48.9% of negative X-ray examinations. The respective percentages were 35.6, 7.4, and 7.8 for White men and 14.5, 24.9, and 4.4 for White women. During the period from May 15 to September 15, 1997, the respective percentages for each group were: 16.2, 57.1, and 50.0 for African-American women; 12.6, 0, and 40.0 for African-American men; 27.0, 7.1, ...

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