235 F.3d 769 (2nd Cir. 2000), 98-9375, Brown v City of Oneonta
|Docket Nº:||Docket No. 98-9375|
|Citation:||235 F.3d 769|
|Party Name:||RICKY BROWN, on behalf of himself and all other persons similarly situated; JAMEL CHAMPEN, on behalf of himself and all other persons similarly situated; SHERYL CHAMPEN, on behalf of herself and all other persons similarly situated; HOPETON GORDON, on behalf of himself and all other persons similarly situated; JEAN CANTAVE, on behalf of himself and|
|Case Date:||December 18, 2000|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 18th day of December two thousand.
A petition for rehearing and rehearing in banc from the amended opinion of the panel filed on August 8, 2000 having been filed by plaintiffs-appellants,
Upon consideration by the panel that Decided the appeal, it is Ordered that said petition for rehearing is hereby DENIED.
It is further noted that the petition for rehearing in banc having been transmitted to the judges of the Court and to any other judge that heard the appeal and a request for an in banc vote having been made by a judge of the Court in regular active service, and a poll of the judges in regular active service having been taken, and there being no majority in favor thereof, rehearing in banc is DENIED.
Judges Kearse, Calabresi, Parker, Straub and Sotomayer dissent from the denial of rehearing in banc. Chief Judge Walker has filed an opinion concurring in the denial of rehearing in banc. Judge Jacobs has filed a separate concurring opinion and Judges Sack and Katzmann together have filed a separate concurring opinion. Judge Calabresi has filed a separate opinion dissenting from the denial of rehearing in banc which is joined by Judge Straub, and by Judges Sotomayor and Parker in part. Judge Straub has also filed a separate opinion dissenting from the denial of rehearing in banc which is joined by Judge Calabresi.
JOHN M. WALKER, Jr., Chief Judge, concurring in the denial of rehearing in banc:
The reasoning in support of the panel's decision, fully set forth in the panel opinion, needs no elaboration. See Brown v. City of Oneonta, 221 F.3d 329 (2d Cir. 2000). Some of the judges dissenting from denial of rehearing in banc, however, have chosen this occasion to advance, for the first time, novel equal protection theories that, in my view, would severely impact police protection. While such new theories are common to the pages of an academic journal to which interested critics might reply in the fullness of time, their appearance in this venue requires a more immediate response.
The dissenters propose that when the police have been given a description of a criminal perpetrator by the victim that includes the perpetrator's race, their subsequent investigation to find that perpetrator may constitute a suspect racial classification under the equal protection clause. Judge Straub's view is that equal protection review is triggered whenever the police rely on a physical description provided by a victim or witness that includes race as the basis for conducting an investigation. Judge Calabresi believes that equal protection review arises in a slightly narrowed, yet related situation: when the police ignore the non-racial components of the provided description and question persons who, except for the racial descriptor, do not fit the description provided.
The fact that no legal opinion, concurrence, dissent (or other judicial pronouncement) has ever intimated, much less proposed, any such rules of equal protection confirms a strong intuition of their non-viability. But, for the benefit of anyone who in the future may be undeterred by the inability of these theories to attract judicial recognition, their practical difficulties and analytical defects should be recognized.
I. General Concerns
For better or worse, it is a fact of life in our diverse culture that race is used on a daily basis as a shorthand for physical appearance. This is as true in police work as anywhere else. The theories suggested 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. Moreover, the officer frequently would have to engage in such balancing while under the pressure of a time-sensitive pursuit of a potentially dangerous criminal. Police work, as we know it, would be impaired and the safety of all citizens compromised. The most vulnerable and isolated would be harmed the most and, if police effectiveness is hobbled by special racial rules, residents of inner cities would be harmed most of all.
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