Lead plaintiff Ricky Brown, left, and attorney Scott Fein listen to witness testimony during an October 2005 civil rights trial in Albany. (Dave Oxford)
ALBANY – It all started with a phone call in 1992, when attorney Scott Fein was contacted by civil rights activists about a peculiar incident up in Oneonta.
The activists told Fein that police, looking for a burglary suspect who was thought to be black, had approached and questioned every black person they could find in the little college town over a five day period.
Fein, a former prosecutor who had been a criminal justice advisor to governors Hugh Carey and Mario Cuomo, figured he’d make a couple quick calls, get an assurance that what had happened in Oneonta wouldn’t happen again, and be done with it. Instead, he waded into what became the longest running civil rights case in American history.
For the next 14 years, Fein, with the blessings of his partners at Whiteman Osterman & Hannah in Albany, shepherded Brown v. State through the New York state and federal courts, made more than 50 pro bono court appearances and eventually persuaded the state’s highest court to recognize the existence of a constitutional tort.
“From a legal perspective, prior to this case a violation of state constitutional rights could not give rise to a lawsuit, because lawsuits had to be predicated on compensation and not injunctive relief,” Fein, co-chair of the corporate and public agency regulatory compliance practice group at Whiteman, said in an interview. “As I told the judges in my argument at the Court of Appeals, ‘If I fall down in this courtroom because one of your tiles was loose and you knew about it, I could sue for money damages. But if you do away with my freedom of religion there is no redress.’”
Now, more than 20 years after the incident, a filmmaker from Westchester has produced a documentary, “Brothers of the Black List.” The film will be shown next Wednesday at an event in Troy (See event information).
“I wanted to get their story out and give them the spotlight,” said filmmaker Sean Gallagher, 27. “I want to take it to college campuses and community groups, where a conversation needs to be had about what happened. I don’t think something like this will happen again in Oneonta, but it could easily occur somewhere else.”
One Black Arm
Gallagher learned of the case in 2007, when he was a senior at the State University at Oneonta, which was at the epicenter of a dispute that started when he was in kindergarten and ended when he was in college.
It began with a break-in.
On Sept. 4, 1992, a 77-year-old woman was attacked in a home near SUNY Oneonta in what was apparently an attempted rape.
The victim did not get a clear view of the assailant, who attacked her from behind and knocked her down. It was dark and she did not have her glasses on. All she saw was her assailant’s arm, which was black, and a knife. She heard his voice, which she identified as an African American dialect. There was a possibility that he had cut himself during the struggle or the break-in.
At the time, the SUNY system was making a concerted effort to increase diversity at its outlying campuses, actively recruiting urban blacks. The city of Oneonta had a miniscule minority population, and a large portion of the blacks in the area were at or associated with the college.
Police immediately went to the college, which provided authorities with a “black list” of all 125 black men enrolled.
For several days, black students were approached by police, directed to display their hands and asked where they were the night of the crime. When that failed to turn up a suspect, the dragnet was extended citywide, with police stopping and questioning black men, and at least one black woman, at bus stops, street corners and other locations.
They never did make an arrest.
But the incident came to the attention of the New York Civil Liberties Union and the American Civil Liberties Union, and the groups reached out to Fein, who had lent a sympathetic ear to their criminal justice concerns while working in the Carey and Cuomo administrations.
Fein said he contacted the Cuomo administration, which was “extraordinarily empathetic,” and the State Police, which insisted the incident illustrated, not inappropriate racial profiling, but good police work.
“What would have happened, had the victim…only seen one feature of the intruder and that was a Star of David around the intruder’s neck and the police gathered and said, ‘Where do the Jews live?’ Fein asks in the documentary. “Why is it that something that would be so socially reprehensible if it applied to my people is good police work when it applies to the African American community? I have no answer.”
Fein ended up filing lawsuits in both state and federal courts on behalf of the minority students at Oneonta and the black community. The Court of Claims dismissed the case, holding that there was no such thing as a constitutional tort. A federal court threw out the case on the reasoning that racial profiling did not violate the equal protection clause.
In 1996, the state Court of Appeals issued a landmark decision in Brown v. State, 89 NY2d 172, holding that the state can be held liable for monetary damages for violating the equal protection and search and seizure clauses of the state Constitution. The case went back to the Court of Claims, where a class action was dismissed but a couple of the individual claimants won damages.
Fein said he and his firm committed about $1.5 million in legal services to the case, and recovered only a fraction of its expenses. He said some of what they received went to help the lead plaintiff, Ricky Brown, get through the bar exam. Brown, now an attorney in Boston, second-seated Fein at the trial.
The film, which runs a little over an hour, includes interviews with Fein, college officials, several former students who were approached by police, the victim and others.
“Ok, we were stopped,” one of the students, Jamel Champen says in the film. “We weren’t detained very long. They just checked our hands. That’s not the real issue here. The real issue is the idea of what they did. The idea of what they did is dangerous. That they generated a list and systematically looked and searched for black males, the idea of that is what’s scary. Because, what’s next?”
Even the victim was appalled at the way the investigation was conducted, describing the police conduct as “a blatant violation of human dignity and human rights.”
Fein said he never thought the police acted maliciously. He said the police were simply blind to the degradation they inflicted on the black community and the message their sweeping dragnet sent to minorities in Oneonta.
“Race profiling is perceived to be this up-against-the-wall, catastrophic thing, but what I learned is that it is much more nuanced than this,” Fein said. “It is part of the insults [that blacks] endure every day. “
The documentary “Brothers of the Black List,” produced by filmmaker Sean Gallagher (top left), tells the story behind the longest litigated civil rights case in American history. At right is a still from the documentary of students at SUNY Oneonta protesting the 1992 events.
In his many conversations with the black listed students, Fein said he came to appreciate the humiliation suffered by minorities when white people cross the street or lock their car doors when a black person approaches, when the store clerk drops change into the hand of a black customer to avoid contact or when other people in an elevator stand as far away as possible.
” I have seen the film twice and I think it may have some utility in sensitizing people to the corrosive effect of race profiling,” Fein said.
Jonathan Demme, the Academy Award director of “Silence of the Lambs,” “Philadelphia,” “Rachel Getting Married” and the Talking Heads concert film “Stop Making Sense,” has endorsed Gallagher’s film. He said the “unflinching and beautifully-made documentary bears witness, from a fresh perspective, to the failure of our most honored institutions to help turn the tide on this persistent, chronically vile American social dynamic.”
Fein has received several awards for his work on the Oneonta case, including the New York State Bar Association’s President’s 2006 Pro Bono Service Award, the National Law Journal’s 2006 Award for Pro Bono Service and the New York Law Journal highlighted Fein and the case as the most significant civil rights case of 2005.
Gallagher said Fein is a “hero” of the story and a star in the film.
“What I love about Scott is his humbleness,” Gallagher said. “When I filmed his interview, he never mentioned that he worked pro bono for 14 years. He never mentioned the awards he got from the New York Law Journal or the bar associations. The utter humbleness of him is fascinating to me”