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The 3rd U.S. Circuit Court of Appeals has reinstated a suit against two state park rangers, saying the plaintiffs had articulated “a paradigmatic case of racial profiling.” The panel ruled Dec. 17 that U.S. District Judge Faith Hochberg of the District of New Jersey improvidently granted summary judgment by failing to view the facts in the light most favorable to the plaintiffs, four Mexican immigrants arrested at Sussex County, N.J.’s Waywayanda State Park for swimming after closing. Ruling for the defense without hearing arguments, Hochberg had found that the defendant rangers were entitled to qualified immunity, and that “even if the Court were to reach merits of this action, the Court finds that it is an utterly frivolous case.” But the 3rd Circuit judges, while observing that the underlying incidents “may seem trivial at first,” said that the plaintiffs, as nonmoving parties, were entitled to benefit of the doubt. “It may be that the District Court had the correct impression of the situation, and that its decision will ultimately be upheld,” Circuit Judge Dolores Sloviter wrote in Carrasca v. Pomeroy, 02-1127. “But in light of the differing versions of the facts, any judgment was premature.” The plaintiffs claim that rangers singled them out based on ethnicity, violating their rights under 42 U.S.C. 1983, the equal protection clause of the 14th Amendment and the New Jersey Law Against Discrimination. The plaintiffs were among about two dozen people swimming at the park on Aug. 3, 1998, when park ranger Edward Pomeroy ordered the swimmers to get out because it was about 15 minutes past the 6 p.m. closing time. Pomeroy said he approached the four plaintiffs because they failed to comply with his first order to come out of the water, and because three of them were in inappropriate swimming attire. One was wearing dark-colored, bikini-style underwear and two others were in street clothes instead of bathing suits. According to the plaintiffs, Pomeroy uttered the word “Mexican” in a taunting tone as they emerged from the water, then asked them to produce green cards and arrested them when they had none. The plaintiffs say they were not read their Miranda rights when they were handcuffed by Steve Losey, a summer park employee who is the other defendant. They also say none of the non-Hispanic swimmers were arrested. The suit claims that Pomeroy called the Immigration and Naturalization Service about the four plaintiffs, leaving them handcuffed to chairs for three to four hours. After leaving several messages at the INS and offering to transport the four to any INS facility in New Jersey, Pomeroy got through to a supervisor who said the agency was not interested in the plaintiffs. The plaintiffs and Pomeroy differ on how many times he instructed them to leave the water, when they left the water, whether their swimming attire was significantly different from other bathers’ and how long the plaintiffs were held at the park office, Sloviter wrote. Hochberg also failed to determine whether other bathers were in attire similar to the plaintiffs’ and whether signs at the lake said what bathers were expected to wear, Sloviter wrote. The plaintiffs also claim that one of the four was not even in the water when Pomeroy approached. They cite this as evidence of racial profiling because non-Hispanics on the beach were not arrested. All four plaintiffs, residents of Port Jervis, N.Y., were released after being given summonses for swimming after closing. They pleaded guilty and paid their fines. Because the parties disagree on the facts, summary judgment would have been appropriate only if the disputes were immaterial, wrote Sloviter, joined by 3rd Circuit Judges Marjorie Rendell and Julio Fuentes. If the plaintiffs’ version of the facts was accepted, a showing could be made that Pomeroy singled out the plaintiffs instead of non-Hispanic swimmers who were similarly situated, Sloviter wrote. Furthermore, only a jury could determine whether the plaintiffs’ arrest, handcuffing and detention for four hours is “carefully tailored” to the offense of swimming after hours, making their Fourth Amendment claims inappropriate for summary judgment, Sloviter wrote. In addition, Hochberg’s holding that the park employees were entitled to qualified immunity was “somewhat overstated,” Sloviter wrote. Hochberg said one of the defendants believed that the plaintiffs violated state and federal laws when he saw them swimming in the park lake after closing, but no federal law was implicated, and there was no suspicion of criminal activity rising to the level justifying a stop under Terry v. Ohio, 392 U.S. 1 (1968), Sloviter wrote. The plaintiffs’ lawyer, Daniel Werner, is pleased that he’ll get his day in court. “We were very, very troubled by the District Court opinion. The judge called it a frivolous case,” says Werner, of Farmworker Legal Services of New York Inc. Werner says Hochberg “just seemed to accept wholesale what the defense claimed throughout the case. First of all, she said it was immaterial when the plaintiffs left the water. The 3rd Circuit correctly said that was an important fact. The crux of the factual dispute is that our clients said from the get-go when they were asked to leave the water, they left the water.” Deputy Attorney General Robert Shane appeared for the rangers. Peter Aseltine, a spokesman for New Jersey Attorney General David Samson, said the state had no comment on the 3rd Circuit ruling or on the racial-profiling allegations.

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