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Nearly 12 years after the police in a small upstate community questioned hundreds of black men because of their skin color — and stoked the already heated debate over racial profiling — an appellate panel in Albany, N.Y., has apparently cleared the way to trial. Last week, the Appellate Division, 3rd Department, said that even though a federal appellate court said there was no equal protection argument to be made on behalf of the claimants, Ricky Brown and his co-plaintiffs can assert that right under the state Constitution. Justice Edward O. Spain, writing for the unanimous court, rejected the state’s collateral estoppel defense and moved the matter to the Court of Claims. Brown v. State is rooted in an incident in 1992, when a 77-year-old woman in the college town of Oneonta, N.Y., was attacked in her home. The woman, now deceased, told authorities that the assailant may have been a young black man and he may have suffered an arm or hand wound during the attack. Based on that alone, police officers stopped and questioned about 300 black men found in the general vicinity. The matter caused public outrage as well as serious debate over whether the police acted appropriately. A plethora of litigation arose in various venues, including federal court and the Court of Claims, and over the years both New York’s highest court and the 2nd U.S. Circuit Court of Appeals have weighed in. The Brown case led the New York Court of Appeals to recognize constitutional torts for the first time (89 NY2d 172 [1996]). It was also that case in which the 2nd Circuit essentially sanctioned racial profiling (221 F3d 329 [2000]). “This case bears on the question of the extent to which law enforcement officials may utilize race in their investigation of a crime,” the 2nd Circuit said in an opinion four years ago. “We hold that under the circumstances of this case, where law enforcement officials possessed a description of a criminal suspect, even though that description consisted primarily of the suspect’s race and gender, absent other evidence of discriminatory racial animus, they could act on the basis of that description without violating the Equal Protection Clause.” A petition for a rehearing en banc was denied but prompted six separate concurrences or dissents. New York state, defending its troopers, relied on the 2nd Circuit opinion in claiming that Brown and other plaintiffs are now collaterally estopped from asserting equal protection in the Court of Claims, where the matter is now pending. But in an important development last week, Justice Spain and his colleagues on the 3rd Department bench found that the federal court’s interpretation of the U.S. Constitution does not bar the claimants’ access to state constitutional relief. Spain observed that the 2nd Circuit “never considered claimants’ state constitutional claims,” in part because the parties stipulated at the federal trial level to dismiss all state law claims without prejudice. “[W]hile the New York courts addressing a state equal protection claim will ordinarily afford the same breadth of coverage conferred by federal courts under the U.S. Constitution in the same or similar matters, an adverse federal court decision on an equal protection claim under the U.S. Constitution does not preclude litigation for the first time of a state equal protection claim in state courts,” Justice Spain said. EQUAL PROTECTION However, the court did afford the state an opportunity to contest the state-based equal protection arguments. That portion of the ruling stemmed from an earlier decision in which the 3rd Department said that the state, by failing to expressly deny the equal protection claims “has admitted that each person stopped was stopped on the basis of race alone.” Last week, the court backed away from the prior decision, holding that it had wrongly considered the issue. “In view of … supervening authority indicating that we should not have entertained an appeal as of right from the Court of Claims’ sua sponte order directed at the burden of proof and showing, we decline to give law of the case effect to this aspect of our decision,” Justice Spain wrote. Presiding Justice Anthony V. Cardona and Justices Thomas E. Mercure, Karen K. Peters and Anthony J. Carpinello were also on the panel. Joseph D. Stinson and Scott N. Fein of Whiteman Osterman & Hanna in Albany represent the claimants. Assistant Attorney General Denise A. Hartman is defending the state.

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