Brown v. City of Oneonta, Docket No. 98-9375

• Decision Date: 18 December 2000
• Docket Number: Docket No. 98-9375
• Citation: 235 F.3d 769
• Parties: (2nd Cir. 2000) 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 all other persons similarly situated; RAISHAWN MORRIS, on behalf of himself and all other persons similarly situated; TIM RICHARDSON, on behalf of themselves and all other persons similarly situated; DARRYL TAYLOR, on behalf of themselves and all other persons similarly situated; ROBERT WALKER, on behalf of themselves and all other persons similarly situated; CLEMENT MALLORY, on behalf of themselves and all other persons similarly situated; RONALD SANCHEZ, on behalf of themselves and all other persons similarly situated; DARNELL LEMONS, on behalf of themselves and all other persons similarly situated; JOHN BUTLER, on behalf of themselves and all other persons similarly situated; JASON CHILDS, on behalf of themselves and all other persons similarly situated; PAUL HEYWARD, JR., on behalf of themselves and all other persons similarly situated; RONALD JENNINGS, on behalf of themselves and all other persons similarly situated; PAUL HOWE, on behalf of themselves and all other persons similarly situated; BUBU DEMASIO, on behalf of themselves and all other persons similarly situated; WILSON ACOSTA, on behalf of themselves and all other persons similarly situated; CHRIS HOLLAND, on behalf of themselves and all other persons similarly situated; JERMAINE ADAMS, on behalf of themselves and all other persons similarly situated; FELIX FRANCIS, on behalf of themselves and all other persons similarly situated; DANIEL SONTAG, on behalf of themselves and all other persons similarly situated; RONALD LYNCH, on behalf of themselves and all other persons similarly situated; KENNETH McCLAIN, on behalf of themselves and all other
• Court: U.S. Court of Appeals — Second Circuit

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235 F.3d 769 (2nd Cir. 2000) 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 all other persons similarly situated; RAISHAWN MORRIS, on behalf of himself and all other persons similarly situated; TIM RICHARDSON, on behalf of themselves and all other persons similarly situated; DARRYL TAYLOR, on behalf of themselves and all other persons similarly situated; ROBERT WALKER, on behalf of themselves and all other persons similarly situated; CLEMENT MALLORY, on behalf of themselves and all other persons similarly situated; RONALD SANCHEZ, on behalf of themselves and all other persons similarly situated; DARNELL LEMONS, on behalf of themselves and all other persons similarly situated; JOHN BUTLER, on behalf of themselves and all other persons similarly situated; JASON CHILDS, on behalf of themselves and all other persons similarly situated; PAUL HEYWARD, JR., on behalf of themselves and all other persons similarly situated; RONALD JENNINGS, on behalf of themselves and all other persons similarly situated; PAUL HOWE, on behalf of themselves and all other persons similarly situated; BUBU DEMASIO, on behalf of themselves and all other persons similarly situated; WILSON ACOSTA, on behalf of themselves and all other persons similarly situated; CHRIS HOLLAND, on behalf of themselves and all other persons similarly situated; JERMAINE ADAMS, on behalf of themselves and all other persons similarly situated; FELIX FRANCIS, on behalf of themselves and all other persons similarly situated; DANIEL SONTAG, on behalf of themselves and all other persons similarly situated; RONALD LYNCH, on behalf of themselves and all other persons similarly situated; KENNETH McCLAIN, on behalf of themselves and all other persons similarly situated; HERVEY PIERRE, on behalf of themselves and all other persons similarly situated; VINCENT QUINONES, on behalf of themselves and all other persons similarly situated; LAURENCE PLASKETT, on behalf of themselves and all other persons similarly situated; LAMONT WYCHE, on behalf of themselves and all other persons similarly situated; STEVEN YORK, on behalf of themselves and all other persons similarly situated; TYRONE LOHR, on behalf of themselves and all other persons similarly situated; KING GONZALEZ, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, RAISHAWN MORRIS, Appellant, CHARLES BATTISTE, on behalf of himself and all other persons similarly situated; WAYNE LEWIS, on behalf of himself and all other persons similarly situated; MICHAEL CHRISTIAN, on behalf of themselves and all other persons similarly situated; MAJOR BARNETT, on behalf of himself and all other persons similarly situated, Plaintiffs,
v.
CITY OF ONEONTA, NEW YORK; POLICE DEPARTMENT OF THE CITY OF ONEONTA, NEW YORK; JOHN J. DONADIO, Chief of Police of the City of Oneonta, in

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his individual and official capacities; JOSEPH REDMOND, Oneonta Police Officer, in his individual and official capacities; WILLIAM M. DAVIS, Oneonta Police Officer, in his individual and official capacities; X. OLSEN, Oneonta Police Officer, in his individual and official capacities; ANONYMOUS OFFICERS AND INVESTIGATORS OF THE POLICE DEPARTMENT OF THE CITY OF ONEONTA, in their individual and official capacities; THE STATE OF NEW YORK; STATE UNIVERSITY OF NEW YORK; STATE UNIVERSITY OF NEW YORK, COLLEGE AT ONEONTA ("SUCO"); NEW YORK STATE DIVISION OF STATE POLICE; H. KARL CHANDLER, New York State Police Investigator, in his individual and official capacities; ROBERT FARRAND, New York State Police Troop C Commander, in his individual and official capacities; GEORGE CLUM, New York State Police Investigator, in his individual and official capacities; KEVIN MORE, New York State Police Investigator, in his individual and official capacities; JOHN WAY, New York State Police Investigator, in his official capacities; MARK KIMBALL, New York State Trooper, in his individual and official capacities; KENNETH GRANT, New York State Trooper, in his individual and official capacities; NEW YORK STATE TROOPER FARRAGO, in his individual and official capacities; ANONYMOUS STATE POLICE OFFICIALS AND INVESTIGATORS, in their individual and official capacities; SUCO DEPARTMENT OF PUBLIC SAFETY; MERRITT HUNT, SUCO Department of Public Safety Officer, in his individual and official capacities; TIM JACKSON, SUCO Department of Public Safety Officer, in his individual and official capacities; JOHN EDMONDSON, SUCO Department of Public Safety Officer, in his individual and official capacities; HARTMARK LEIF, in his individual and official capacities; ERIC WILSON, in his individual and official capacities; CARL SHEDLOCK, Oneonta Police Officer, in his individual and official capacities; ANONYMOUS PUBLIC SAFETY OFFICERS, in their individual and official capacities; ANONYMOUS SUCO COMPUTER EMPLOYEES, in their individual and official capacities; SEAN RALPH, Otsego County Sheriff's Deputy; CHRIS LEHENBAUER, Otsego County Sheriff's Deputy; ANONYMOUS OTSEGO CITY; ANONYMOUS OTSEGO COUNTY SHERIFF'S DEPUTIES, INVESTIGATORS AND/OR OFFICERS, Defendants-Appellees. Docket No. 98-9375
August Term 2000 UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT December 18, 2000

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.

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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.

There have been times and places in this country in which the police have tolerated crime in African-American communities. See, e.g., John...