Posted by Jonathan Adler:
*Brown v. City of Oneonta*:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244041783
Given interest in how Judge Sotomayor has approached cases involving
race, the case of Brown v. City of Oneonta is worth a look. The
[1]panel opinion (as amended) is at 221 F.3d 329 (2nd Cir. 2000). The
[2]opinions respecting the denial of reharing en banc are at 235 F.3d
769 (2d Cir. 2000). Judge Sotomayor was not on the initial panel, but
she did join most of Judge Calabresi's opinion dissenting from the
denial of rehearing en banc in this interesting case. While this
opinion may be less probative than one Judge Sotomayor authored
herself, her participation in this case could help shed light on her
views of the proper application of the Equal Protection Clause. It is
also interesting to compare the rationale for en banc review endorsed
by Judges Calabresi and Sotomayor in this case with their arguments
for [3]denying en banc review in Ricci v. DeStefano, another
potentially divisive case involving race.
The full post including excerpts from the relevant opinions are below
the jump.
([4]show)
Here are the basic facts, as described in the panel opinion written by
Judge Walker:
Oneonta, a small town in upstate New York about sixty miles west of
Albany, has about 10,000 full-time residents. In addition, some
7,500 students at-tend and reside at the State University of New
York College at Oneonta (�SUCO�). The people in Oneonta are for the
most part white. Fewer than three hundred blacks live in the town,
and just two percent of [approximately 150 out of 7,500] stu-dents
at SUCO are black.
On September 4, 1992, shortly before 2:00 a.m., someone broke into
a house just outside Oneonta and attacked a seventy-seven-year-old
woman. The woman told the police who responded to the scene that
she could not identify her assailant's face, but that he was
wielding a knife; that he was a black man, based on her view of his
hand and forearm; and that he was young, because of the speed with
which he crossed her room. She also told the police that, as they
struggled, the suspect had cut himself on the hand with the knife.
A police canine unit tracked the assailant's scent from the scene
of the crime toward the SUCO campus, but lost the trail after
several hundred yards.
The police immediately contacted SUCO and re-quested a list of its
black male students. An official at SUCO supplied the list, and the
police attempted to locate and question every black male student at
SUCO. This endeavor produced no suspects. Then, over the next
several days, the police conducted a �sweep� of Oneonta, stopping
and questioning non-white persons on the streets and inspecting
their hands for cuts. More than two hundred per-sons were
questioned during that period, but no suspect was apprehended.
Those persons whose names appeared on the SUCO list and those who
were approached and questioned by the police, be-lieving that they
had been unlawfully singled out because of their race, decided to
seek redress.
Specifically, several SUCO students filed a class action suit against
the city and others alleging violations of their rights under the
Fourth Amendment and Equal Protection Clause of the Fourteenth
Amendment. The district court dismissed or granted summary judgment to
the defendants on all of the plaintiffs' claims.
On appeal, a three-judge panel of the Second Circuit affirmed the
dismissal of plaintiffs' Equal Protection claims, but reversed in part
the district court's grant of summary judgment with respect to some of
the plaintiffs' Fourth Amendment claims. The Court summarized its
conclusion of the former holding (which was the subject of the en banc
opinions) thusly:
Plaintiffs do not allege that upon hearing that a violent crime had
been committed, the police used an established profile of violent
criminals to determine that the suspect must have been black. Nor
do they allege that the defendant law enforcement agencies have a
regular policy based upon racial stereotypes that all black Oneonta
residents be questioned when-ever a violent crime is reported. In
short, plaintiffs' factual premise is not supported by the
pleadings: they were not questioned solely on the basis of their
race. They were questioned on the altogether legitimate basis of a
physical description given by the victim of a crime. Defendants'
policy was race-neutral on its face; their policy was to
investigate crimes by interviewing the victim, getting a
description of the assailant, and seeking out persons who matched
that description. This description contained not only race, but
also gender and age, as well as the possibility of a cut on the
hand. In acting on the description provided by the victim of the
assault-a description that included race as one of several
elements-defendants did not engage in a suspect racial
classification that would draw strict scrutiny. The description,
which originated not with the state but with the victim, was a
legitimate classification within which potential suspects might be
found. . . .
The Equal Protection Clause, however, has long been interpreted to
extend to governmental action that has a disparate impact on a
minority group only when that action was undertaken with
discriminatory intent. See Washington v. Davis. Without additional
evidence of discriminatory animus, the disparate impact of an
investigation such as the one in this case is insufficient to
sustain an equal protection claim.
The court also stressed that it was not, in any way, approving the
police conduct, but only finding that plaintiffs had not alleged facts
that would constitute a violation of the Equal Protection Clause.
On petition for rehearing en banc [235 F.3d 769 (2d Cir. 2000)], Judge
Sotomayor joined Judge Calabresi's dissenting opinion (on behalf of
five judges) decrying the panel's "egregious" errors, such as (a)
including "unnecessary, and inevitably hurtful, remarks about when
following victims' descriptions involving race is constitutionally
permissible"; (b) "ignoring pleadings that are manifestly sufficient
under our 12(b)(6) jurisprudence"; and (c) refusing to require
[although allowing] the district court to permit further pleadings"
involving amended claims. Wrote Calabresi: "These errors, moreover,
are egregious, and are made in a case that directly involves issues
that most searingly divide our society. When such issues are
incorrectly dealt with by a panel of our court, an in banc rehearing
is, to my way of thinking, not only justified but essential. For that
reason, I respectfully dissent from the denial of in banc review."
Judge Calabresi further explained:
two fundamental problems with the panel's opinion justify in banc
review. First, the panel errs in avoiding the critical issue that
the plaintiffs' factual allegations have raised-the creation in
this case of a racial classification as a result of police
deviation from the victim's description. Second, that deficiency is
compounded by the panel's reaching out to decide the highly
divisive, and, it seems to me, unripe, question of whether and when
following a victim's description is acceptable. Converting what
would otherwise be dicta into what sounds like a statement of law
is almost always undesirable. In the circumstances before us, it is
especially unfortunate.
Why is this so? The first reason is that by doing this, the panel
prematurely legitimates actions that-even if they might ultimately
be deemed valid-are, as the panel itself recognized, extremely
offensive to a much abused part of our population. . . . However
many heartfelt apologies the panel makes for doing so, this cannot
help but hurt. If, as the plaintiffs alleged, the police did not
merely follow the victim's description in questioning every male
black student and two thirds of all of the black residents of the
City of Oneonta, I should have thought it wise for the court to
welcome the opportunity these allegations gave it to avoid having
to tell African-Americans that we are sorry, but you just have to
put up with racially linked sweeps when victims-perhaps influenced
by their own racial fears, or by our country's long history of
racial divisions-give an essentially racial description.
But there are also other, structural, reasons why the panel's, to
me unnecessary, validation of the police sweep is particularly
undesirable. The question of when, if ever, merely following a
victim's description that is predominantly racial might violate
equal protection norms is an extremely difficult one. A couple of
examples will suggest why. Suppose an armed robbery occurs in which
the victim cuts the arm of the robber. The robber, described by the
victim in racial terms, runs into a crowded bar where there are
only three others who could be so described. Is it wrong for the
police to ask the four to show whether they have a cut on their
arm? Of course not. But imagine, instead, that a passer-by sees
someone illegally swimming naked in a park pond and describes the
swimmer to the police in racial terms, adding that the swimmer can
readily be identified because he has a distinctive tattoo on his
posterior. Can it possibly be acceptable for the police to ask
every male in town who fits that racial description to strip, even
if the police do so with utmost politeness and in full conformity
with Fourth Amendment strictures? I would certainly think not.
In between these examples there are any number of permutations
involving, among other things, (a) the seriousness of the crime;
(b) the number of people in the racially defined group who are
subject to questioning; (c) the significance and extent of
non-racial attributes given by the victim in addition to the racial
one; (d) the capacity of the victim to describe the perpetrator in
non-racial (as well as in racial) terms; (e) the effort, if any, by
the police to elicit from the victim such non-racial descriptions;
(f) the intrusive-ness of the questioning; and (g) the special
indignity (arising from the existence of stereotypes) that may
result from connecting those in a given racial group with a
particular type of crime.
Judge Walker responded, arguing that Judge Calabresi and the other
dissenters had "chosen this occasion to advance, for the first time,
novel equal protection theories" of the sort "common to the pages of
an academic journal" but which, in Judge Walker's view, "would
severely impact police protection." He wrote:
The dissenters propose that when the police have been given a
description of a criminal perpetrator by the victim that includes
the perpetrator's race, their subsequent investigation to find that
perpetrator may constitute a suspect racial classification under
the equal protection clause. . . . Judge Calabresi believes that
equal protection review arises . . . when the police ignore the
non-racial components of the provided description and question
persons who, except for the racial descriptor, do not fit the
description provided.
The fact that no legal opinion, concurrence, dissent (or other
judicial pronouncement) has ever intimated, much less proposed, any
such rules of equal protection confirms a strong intuition of their
non-viability. But, for the benefit of anyone who in the future may
be undeterred by the inability of these theories to attract
judicial recognition, their practical difficulties and analytical
defects should be recognized.
Judge Walker further argued that the Fourth Amendment's prohibition on
unreasonable searches and seizures "carefully calibrated by the
Supreme Court over two centuries, balances law enforcement needs
against the rights of the citizen to be protected," making resort to
the Equal Protection Clause in cases such as this unnecessary and
unwise.
Judge Calabresi's proposal, by injecting equal protec-tion analysis
into police investigations that rely on racial descriptors, would
upset this carefully crafted balance. Fearing personal liability
through Section 1983, 42 U.S.C. § 1983, litigation from equal
protection violations arising from their investigative activities,
police officers would undoubtedly fail to act in situations where
we would expect them to.
Judge Sotomayor did not write her own opinion in this case, but she
did join the bulk of Judge Calabresi's dissent.
([5]hide)
References
1. http://openjurist.org/221/f3d/329
2. http://openjurist.org/235/f3d/769/ricky-brown-v-city-of-oneonta-new-york
3. http://volokh.com/posts/chain_1213653276.shtml
4. file://localhost/var/www/powerblogs/volokh/posts/1244041783.html
5. file://localhost/var/www/powerblogs/volokh/posts/1244041783.html
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