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When an elderly visitor was attacked in the home of one of the town’s leading citizens one February night in 1992, she could offer only a vague description of her assailant: He might be young and black, and he might have cut his wrist. Police in Oneonta, N.Y., responded over the next few days by rounding up as many black men in the town as they could-never mind any individualized suspicion-and examining their hands and wrists. When that didn’t produce a suspect, they broadened the dragnet, going so far as to stop nonwhite men and even women boarding public transportation in order to screen them. Scott Fein, a former government attorney in the state capital at Albany, N.Y., was astonished at the tactic when a group of black residents approached him in 1993. He thought it would be simple work to win an apology and a promise not to repeat the behavior. Instead, Fein and his 60-partner Albany law firm, Whiteman Osterman & Hanna, found themselves spending 13 years and $1.5 million in court fighting the New York State Police’s dogged defense of what Fein considered racial profiling. His clients, he said, didn’t want much at first: “Just tell us it won’t happen again.” He said he thought an agreement would be simple, but “I was wrong.” The state police publicly apologized, but refused Fein’s call for a comprehensive policy against racial profiling, one featuring specialized training, record-keeping regarding the race of people stopped by police and annual reports to the state attorney general. “Other states have done it,” Fein said. “So can we.” ‘It seemed obvious’ In fact, the litigation ended up requiring more than 50 court appearances and 20 distinct court decisions to produce a key bench verdict in late October in favor of one of 60 class members. Brown v. State, No. 86979 (N.Y. Ct. Cl.). In court pleadings, lawyers with the New York state Attorney General’s Office argued that officers needed only “an objective, credible reason” to question individuals “provided that the officers do not act on whim or caprice.” In 1996, the New York Court of Appeals used the case to recognize a state constitutional tort entitling the plaintiffs to monetary damages. The plaintiffs lost a separate federal suit when the 2d U.S. Circuit Court of Appeals declared that the police were justified because race wasn’t the only criterion for the searches. Action is pending in state court on damages and liability regarding the other class members. They seek $75,000 each, but say they will forgo monetary damages if the state police adopt a comprehensive race-profiling ban.
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