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The 9th U.S. Circuit Court of Appeals on Tuesday reinstated a racial profiling suit filed by a Southern California Asian man who was detained for the murder of a police officer. A three-judge panel reversed a district court ruling granting summary judgment to officers working in the city of Anaheim, Calif., who suspected and detained Yong Ho Choi in the shooting death of a California Highway Patrol officer. But Choi is older, shorter, thinner, of a different ethnicity, and has a different name from that of the suspect police were searching for. Nor was he questioned before being handcuffed and placed in a police car. In fact, police later arrested another man, who, on April 19, was given the death penalty following a trial. Choi, who is Korean, was approached by police while waiting for the light to change at a crosswalk. Despite the fact that police were looking for a Vietnamese man, Choi was ordered to the ground. He had been standing just blocks from the dead CHP officer’s patrol car, which had been stolen and abandoned by the assailant. Choi was later identified by six witnesses as the killer of California Highway Patrol Officer Donald Burt, and that was key to the district court’s decision to throw the case out. At the center of the controversy, the court said, was the ease with which one minority member may be confused with another minority in the eyes of the police, whether or not both happen to be Asian. “Only stereotyping of this sort can account for the firm identification of Choi by those who had seen the actual murderer. We cannot hold them accountable for their convention-bound vision,” wrote Senior Judge John Noonan Jr. in a concurrence to the per curiam opinion, likely written by Judge James Browning, who is known for issuing for-the-court opinions. “We can, however, expect more of police moving in a community of many ethnicities.” Noonan and Browning were joined by Judge Barry Silverman. The case will now head back to U.S. District Judge Gary Taylor’s Los Angeles courtroom for a jury trial. Taylor had thrown out all of Choi’s claims, including the Fourth Amendment one overturned Tuesday. “Police radio log shows that [officers] were informed that the suspect was a particular man noted as Vietnamese and particularly identified not by race or ethnicity but by name: Phu Nguyen,” Noonan wrote. “The officers generalized from this information to a classification embracing two billion persons.” The officers said during the case that they recalled being told to look for an “Oriental” suspect. “Except for their rash generalization, officers had no reason to think Choi was their man,” Noonan wrote. But the 9th Circuit upheld Taylor’s decision to toss several of the other claims brought by Choi and his attorney, Marion Yagman of Venice Beach, Calif.’s Yagman & Yagman & Reichmann: chiefly, that the police conspired against him and that they were guilty of systematic racial profiling. The court agreed with Taylor, ruling in Choi v. Gaston, 00 C.D.O.S. 6570, that Choi didn’t present enough evidence to sustain either claim. Citing U.S. Census statistics, Noonan noted that 25,000 people fitting the description of Asian or Pacific Islander live in Anaheim. “To treat persons in this grouping as fungible when one of the group is a crime suspect would be to say that the police could arrest at will.”

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