“Beyond the Numbers” – Fourth Circuit Clarifies the Proof Standard for Selective-Enforcement Claims in United States v. Moore

Introduction

In United States v. Keith Rodney Moore, the U.S. Court of Appeals for the Fourth Circuit reversed a district-court order dismissing a felon-in-possession indictment on selective-enforcement grounds. The district court had concluded—based chiefly on city-wide traffic-stop statistics and a historical narrative of racial discrimination—that Richmond police stopped Moore “because he was Black,” violating the Equal Protection Clause.

Writing for a unanimous panel, Judge Niemeyer held that (1) statistical disparities and historical discrimination, standing alone, do not constitute “clear evidence” of discriminatory purpose and (2) the inquiry must remain focused on the decisionmakers involved in the challenged stop, not on programmatic or systemic questions better suited for the legislative arena. The opinion provides the clearest articulation to date within the Fourth Circuit of the stringent evidentiary burden a defendant must satisfy to dismiss an indictment for racially selective law enforcement.

Summary of the Judgment

The Fourth Circuit reversed the district court’s dismissal of the indictment and remanded with instructions to reinstate the charge under 18 U.S.C. § 922(g)(1).
The panel held that Moore failed to meet the two-prong test for selective enforcement—discriminatory effect and discriminatory purpose—because he offered no evidence that the officers who stopped him acted “at least in part because of” his race.
Naked statistical disparities (77 % of traffic stops involving Black drivers; “5.13× more likely” figure) were deemed inadequate to demonstrate discriminatory intent, especially where officers had legitimate probable cause (a duplicate temporary tag) to stop the vehicle.
Historical expert testimony ending in 1989 was considered too remote and untethered to the 2020 stop to show contemporary intent.

Analysis

A. Precedents Cited

The court relied heavily on Supreme Court and Fourth Circuit precedent defining selective-enforcement standards:

Whren v. United States, 517 U.S. 806 (1996) – Established that equal-protection, not Fourth Amendment, analysis governs claims of racially selective traffic stops.
United States v. Armstrong, 517 U.S. 456 (1996) – Required proof of both discriminatory effect and purpose for selective prosecution; imported into enforcement context.
United States v. Mason, 774 F.3d 824 (4th Cir. 2014) & United States v. Hare, 820 F.3d 93 (4th Cir. 2016) – Reiterated “clear evidence” standard and cautioned against courts’ intrusion into executive enforcement discretion.
Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979) – Clarified “because of, not in spite of” discriminatory-purpose requirement.
Additional comparators: McCleskey v. Kemp, United States v. Olvis, United States v. Venable, etc., each illustrating judicial skepticism of using raw statistics alone.

The panel treated these cases as setting an intentionally high bar, warning that relaxing the standard would allow virtually any Black motorist in Richmond to establish discriminatory purpose on aggregate data—an outcome the Supreme Court has repeatedly rejected.

B. Legal Reasoning

Focus on Decisionmaker’s Motive. The court underscored that equal-protection analysis is actor-specific: “Since the officers as individuals, and not the Richmond Police Department, made the decision to stop Moore, it is the officers’ motivation that must be examined.”
Presence of Probable Cause. Officers had ample non-racial justification: three identical temporary tags (11134Y) in one evening and Moore’s flight. This lawful basis “made it even less likely” that race motivated the stop.
Statistical Evidence Insufficient. The panel critiqued Moore’s expert for using city population—not driver-at-risk—benchmarks, failing to control for confounders such as crime rates and poverty, and conceding weak correlation coefficients. Without an appropriate denominator, the 77 % figure was “naked” disparity.
Historical Evidence Too Remote. Dr. Chiles’s narrative ended in 1989, providing “little probative value” for a 2020 stop. The court invoked McCleskey’s contemporaneity requirement.
Judicial Role and Institutional Competence. Quoting Mason, the opinion emphasized the “great danger” of courts hampering executive policing functions without “clear evidence.” The district judge’s personal observations and broader policy concerns, while “not dismissed,” were deemed outside the proper scope of an individual suppression motion.

C. Impact of the Decision

The ruling has significant doctrinal and practical ramifications:

Re-affirmation of Rigorous Standard. By labeling statistical-only showings as “naked” and insufficient, the decision narrows defendants’ avenues for dismissal motions premised on aggregate traffic-stop data.
Guidance on Expert Evidence. Future litigants must supply (i) a reliable benchmark population of drivers, (ii) controls for confounders, and (iii) links between statistics and specific officers’ decisions.
Probable Cause as a Safe Harbor. Where officers possess clear probable cause, courts will be less inclined to infer discriminatory purpose absent “significant departures from normal procedures.”
Programmatic Challenges Diverted Elsewhere. The panel signals that systemic discrimination arguments belong in legislative, civil-rights, or pattern-and-practice forums, not in motions to dismiss individual indictments.
Strategic Implications for Defense Counsel. Practitioners must gather direct or circumstantial evidence of bias (e.g., officer admissions, racial slurs, disparate treatment in similar circumstances) rather than relying on city-wide disparity statistics.

Complex Concepts Simplified

Selective Enforcement vs. Selective Prosecution.
- Enforcement – challenges investigative or arrest decisions by police.
- Prosecution – challenges charging decisions by prosecutors.
- Both require proof of discriminatory effect and purpose, but evidence tends to differ because prosecutors’ internal data are often sealed.
“Clear Evidence.” Not codified, but a heightened standard derived from separation-of-powers concerns; requires more than a preponderance yet less than beyond-reasonable-doubt—often described as “strong proof or its equivalent.”
Discriminatory Effect. Proof that a protected group was treated differently from a similarly situated group (e.g., Black vs. White drivers) in comparable circumstances.
Discriminatory Purpose. Proof that the decisionmaker selected the course of action because of its adverse impact on a protected group, not merely with consciousness of that impact.
Confounding Variable. A factor that correlates with both the dependent variable (being stopped) and the independent variable (race), potentially giving a misleading impression of causation (e.g., neighborhood crime rate).

Conclusion

United States v. Moore crystallizes the Fourth Circuit’s insistence that selective-enforcement claims survive only on “clear evidence” of race-based decision-making by the actors involved in the disputed stop. Aggregate statistics and historical narratives, while valuable for broader reform efforts, cannot—without a tighter causal tether—substitute for proof that an individual defendant was singled out because of race. The decision thus reinforces executive discretion in day-to-day policing while channeling systemic-bias arguments to more appropriate forums. Litigants and policymakers alike should heed the court’s message: when the claim is that “I was stopped because I am Black,” the proof must reach beyond the numbers to the motives of the officers on the scene.