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Sharply divided over a controversial case involving widespread police stops of black citizens in Oneonta, N.Y., the 2nd U.S. Circuit Court of Appeals has declined to assemble en banc to rehear the case. In a flurry of concurring and dissenting opinions — and some angry words — about the state of equal protection law applied to the use of race in the description of a criminal suspect, the court refused to reconsider a ruling upholding the dismissal of a civil case brought after police investigating a home invasion in 1992 stopped virtually every black male in town. The genesis of Brown v. City of Oneonta, 98-9375, was a report by an elderly woman that she had been attacked in her home by a young, black male who was carrying a knife. The attacker, the woman said, cut his hand during a struggle. Police responded by launching a sweep of the 10,000-resident town, which has less than 300 black residents, and the campus of the State University of New York College at Oneonta (SUCO), which has about 150 black students. Police stopped and questioned black people on the street and inspected their hands for cuts. A college official complied with a police request to provide a list of the college’s black male students, and students on the list were approached and questioned. Several African Americans filed suit in the U.S. District Court for the Northern District of New York claiming they were singled out solely on the basis of race in violation of the Equal Protection Clause of the U.S. Constitution. Northern District Chief Judge Thomas J. McAvoy dismissed the equal protection claim, finding that plaintiffs had failed to plead the existence of a similarly situated group of non-minority individuals who were treated differently in the investigation of a crime. The decision was reviewed on appeal by Judge John M. Walker, Senior Judge James L. Oakes and visiting Judge Richard W. Goldberg of the U.S. Court of International Trade. The panel issued an opinion in October 1999 and then amended that opinion in August of this year, affirming the dismissal of the equal protection claims. In that decision, Walker wrote that the court was not “blind to the sense of frustration that was doubtlessly felt by those questioned by the police during this investigation,” but insisted that the plaintiffs had not sufficiently alleged “discriminatory intent,” by the police. A footnote said that, “to the extent that this opinion clarifies equal protection law” the district court was free to allow the plaintiffs to replead. The plaintiffs moved for a rehearing en banc — a gathering of the circuit court’s 12 active judges to review particularly important or controversial rulings by one of its panels. DISSENTING OPINIONS Five judges dissented from the decision to deny rehearing: Judges Amalya L. Kearse, Guido Calabresi, Fred I. Parker, Chester J. Straub and Sonia Sotomayor. In a dissenting opinion joined by Calabresi, Straub said that “[t]he panel reaches a grave conclusion by holding that the police act constitutionally under the Fourteenth Amendment when, based on a witness’s predominantly racial description, they stop every young African American male in town to determine whether he can exclude himself from a vague class of potential suspects that have been defined in overwhelmingly racial terms.” Straub said that the court should rehear the case en banc because “[t]he judges of this court obviously disagree sharply over the serious and difficult constitutional questions presented in this case, which appear to be of first impression in this circuit and every other. …” In another dissenting opinion joined by Straub — and joined in part by Parker and Sotomayor — Calabresi said the panel’s decision failed to deal with the “fundamental issue raised” by the plaintiffs and “does so in contravention of established precedents of the Supreme Court of the United States and of our court.” “All this occurs in a context — police investigations in which race is a factor — that implicates some of the deepest and most searing questions in our society,” he said. What should have been addressed by the panel, he said, was the following question: Is the state creating an express racial classification that can only be approved if it survives strict scrutiny when state officers (like the police) ignore essentially everything but the racial part of a victim’s description, and, acting solely on that racial element, stop and question all members of that race they can get hold of, even those who grossly fail to fit the victim’s description? “The answer to that question, all but ignored by the panel, seems to me — both on the precedents and on plain logic — to be a resounding yes,” he said. CONCURRING OPINIONS Chief Judge Walker’s concurring opinion is largely a rebuttal of the dissents by Straub and Calabresi, who he said had “chosen this occasion to advance, for the first time, novel equal protection theories that, in my view, would severely impact police protection.” “For better or worse, it is a fact of daily life in our diverse culture that race is used on a daily basis as a shorthand for physical appearance,” Walker said, adding that the “theories” advanced by the dissenters would “require a police officer, before acting on a physical description that contains a racial element, to balance myriad competing considerations, one of which would be the risk of being subject to strict scrutiny in an equal protection lawsuit.” “Regrettably, the social costs of frustrating police investigations receive no mention in either dissent,” Walker said. Walker’s interpretation of the law in the case — including his claim that both Straub and Calabresi were proposing new interpretations of equal protection law — were rejected by both dissenters. But in a separate concurrence, Judge Dennis G. Jacobs said he was “wholly unconvinced by the dissenting analysis advanced by Judge Calabresi and in broader strokes by Judge Straub.” Calabresi’s doctrine, Jacobs said, is “unworkable” and is “advanced without the inputs of briefing, precedent or scholarship, on which we have made it our habit to rely.” The case may still have life, however. The panel’s opinion invited the district court to consider allowing repleading, Calabresi noted, and even though only five of the court’s 12 active judges favored rehearing en banc, two others, Judges Robert A. Katzmann and Robert D. Sack, said in a concurring opinion that the plaintiffs should be allowed to amend their complaint. That revised complaint, Calabresi said, “could tie the facts alleged to a specific theory that an equal protection violation here occurred because the police created their own racial classification in an impermissible way from the victim’s description.” Katzmann and Sack, in their concurring opinion, said they agreed with the decision to deny rehearing “because we think it would likely be unproductive.” Scott N. Fein of Whiteman Osterman & Hanna in Albany represented the plaintiffs. Assistant Attorney General Denise A. Hartman was lead counsel for New York State. Daniel J. Stewart of Dreyer Boyajian in Albany represented the city of Oneonta.

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