PETITION FOR A WRIT OF CERTIORARI: Racial Profiling

RICKY BROWN, et al., Petitioners, RAISHAWN MORRIS, Petitioner, CHARLES BATTISTE, et al., Petitioners

CITY OF ONEONTA, NEW YORK, et. al. Respondents.

Christopher T. Dunn (Counsel of Record) Arthur N. Eisenberg New York Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 344-3005 Steven R. Shapiro Reginald T. Shuford American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 549-2500 Scott N. Fein Joseph D. Stinson Whiteman Osterman & Hanna One Commerce Plaza Albany, New York 12260 (518) 487-7600 QUESTION PRESENTED Whether the United States Court of Appeals for the Second Circuit erred in concluding that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is not implicated by a complaint that alleges that law-enforcement officials, in response to a report that a young, black male committed a crime, targeted for questioning and physical examination the entire minority community of a municipality solely and expressly on the basis of race and to the exclusion of all nonracial identifying information? INTERESTED PARTIES AND CORPORATE DISCLOSURE STATEMENT All parties to this appeal are listed below. Because no corporations are involved in this matter, there are no parent companies and no subsidiaries to list. 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, Petitioners, RAISHAWN MORRIS, Petitioner, 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, Petitioners

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 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, Respondents. TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ix OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . 2 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 CONSTITUTIONAL PROVISIONS INVOLVED IN THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3 REASONS FOR GRANTING THE WRIT. . . . . . . . 12 A COMPLAINT THAT ALLEGES THAT LAW-ENFORCEMENT OFFICIALS, IN RESPONSE TO A SUSPECT DESCRIPTION THAT INCLUDED RACE, TARGETED ALL THE MEMBERS OF THE MINORITY COMMUNITY OF A LOCALITY FOR QUESTIONING AND PHYSICAL EXAMINATION SOLELY ON THE BASIS OF THEIR RACE STATES A CAUSE OF ACTION UNDER THE EQUAL PROTECTION CLAUSE . . . . . . . . . . . . . 15 A. The Complaint Alleges that Law-Enforcement Officials Targeted the Plaintiffs for Investigation Solely on the Basis of their Race and in Disregard of All Other Nonracial Descriptive Information. . . . . . . . . . . . . . . . . . . . 15 B. The Equal Protection Clause Is Implicated by Law-Enforcement Practices Targeting Entire Minority Communities for Investigation Solely on the Basis of Race and to the Exclusion of All Other Nonracial Information. . . . 20 C. The Policy Concerns Expressed by Judges Walker and Jacobs Are Not Implicated by Instances in Which Law-Enforcement Officials Rely Solely on Race to the Exclusion of Nonracial Information. . . . . . . . . . . . . . . . . . . . . . . 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 APPENDIX Amended Opinion of the United States Court of Appeals for the Second Circuit (Aug. 8, 2000) . . . . . . . . . . . . . . . . . . . . . . . . A-1 Opinion of the United States Court of Appeals for the Second Circuit (Oct. 26, 1999) . . . . . A-28 Order Denying Petition for Rehearing and Rehearing In Banc, with Opinions, from the United States Court of Appeals for the Second Circuit (Dec. 18, 2000) . . . . . . . . . . A-53 Opinion of the United States District Court for the Northern District of New York (Jan. 3, 1996) . . . . . . . . . . . . . . . . . . . . . . . . A-112 Second Amended Complaint (Jan. 30, 1995) . A-140 Letter to Scott Fein from Loretta S. Ruffin (Assistant Clerk, Supreme Court of the United States) (Feb. 12, 2001) . . . . . . . . . . . . . A-221 Letter to Honorable Orrin G. Hatch from United States Attorney General John Ashcroft (Feb. 28, 2001) . . . . . . . . . . . . . . . . . A-223 TABLE OF AUTHORITIES Cases Atwater v. City of Lago Vista, 69 U.S.L.W. 4262 (Apr. 24, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . 21 Brown v. City of Oneonta, 195 F.3d 111 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Brown v. City of Oneonta, 221 F.3d 329 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Conley v. Gibson, 355 U.S. 41 (1957). . . . . . . . . . . . 18 Hunt v. Cromartie, 526 U.S. 541 (1999) . . . . . . . . . . 19 Hunt v. Cromartie, 69 U.S.L.W. 4234 (Apr. 18, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Illinois v. Wardlow, 528 U.S. 119 (2000) . . . . . . . . . . 13-14 Korematsu v. United States, 323 U.S. 214 (1944) . . 22 Loving v. Virginia, 388 U.S. 1 (1967) . . . . . . . . . . . . 21-22 McLaughlin v. Florida, 379 U.S. 184 (1964) . . . . . . 22 Miller v. Johnson, 515 U.S. 900 (1995). . . . . . . . . . . 26 United States v. Brignoni-Ponce, 422 U.S. 873 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21, 27 Whren v. United States 517 U.S. 806 (1996) . . . . . . 14, 22-23 Statutes 28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Other Authorities Letter to Honorable Orrin G. Hatch from Attorney General John Ashcroft (Feb. 28, 2001) . . . . . . . . . 12-13 ——————————————————————————–

RICKY BROWN, et al., Petitioners, RAISHAWN MORRIS, Petitioner, CHARLES BATTISTE, et al., Petitioners -v.- CITY OF ONEONTA, NEW YORK, et. al. Respondents. _______________ ======================================== PETITION FOR A WRIT OF CERTIORARI ======================================== Petitioners respectfully request that a writ of certiorari issue to review the judgment and opinion entered in this case by the United States Court of Appeals for the Second Circuit on August 8, 2000. OPINIONS BELOW The opinion of the Court of Appeals that is the subject of this writ is reported at 221 F.3d 329 (2d Cir. 2000) and is set out in the appendix to this petition at 1-27. That decision amended and vacated an original opinion, which is reported at 195 F.3d 111 (2d Cir. 1999) and is set out in the appendix at 28-52. Various opinions filed by judges of the Court of Appeals in denying a petition for rehearing and rehearing in banc are reported at 235 F.3d 769 (2d Cir. 2000) and are set out in the appendix at 53-111. The original District Court opinion, which is unpublished, is set out in the appendix at 112-39. JURISDICTION This is a petition for a writ of certiorari from an amended opinion and judgment of the United States Court of Appeals for the Second Circuit entered on August 8, 2000. That court denied a petition for rehearing and rehearing in banc on December 18, 2000. On February 12, 2001, Justice Ginsberg extended the deadline for the filing of this petition to and including May 17, 2001. Pet. App. at 221. This Court has jurisdiction pursuant to 28 U.S.C. § 1254. CONSTITUTIONAL PROVISIONS INVOLVED IN THE CASE The pertinent provisions of the United States Constitution involved in this case are found in Section 1 of the Fourteenth Amendment, which provides as follows:

STATEMENT OF THE CASE The Court of Appeals’ judgment for which the petitioners seek a writ of certiorari affirmed a District Court order dismissing an equal protection claim asserted in the petitioner’s second amended federal complaint. Given this, the facts relevant to this petition are to be taken from that complaint, which is set out at pages 140-220 of the appendix, and under long-established principles these facts are to be taken as true. So understood, this case concerns the constitutionality of actions undertaken by law-enforcement officials in the City of Oneonta in upstate New York who stated they had received a report that a crime had been committed by a young, black male who may have cut his hand or forearm during the incident. In response to this report, state and local police officials targeted for questioning and physical examination every black male at the State University of New York, College of Oneonta (SUCO), the campus of which was located in the vicinity of the crime. When this action did not result in an arrest, the officials sought to question and examine the hundreds of non-white residents in the Oneonta area and did so solely on the basis of their race. Though the second amended complaint exceeds one hundred pages, its essence is spelled out in its opening paragraphs:

Second Amended Complaint ¶¶ 2-4 (Pet. App. at 142-43). The objective of the sweep, according to a New York State Police Investigator, was “to examine the hands of all the black people in the community.” Id. ¶ 100 (Pet. App. at 165). Pursuant to this sweep, law-enforcement officials stopped, questioned, examined and/or searched a large number of individuals at locations around Oneonta “including the bus stations, in and around plaintiffs’ apartments, dorm residences, homes, on the SUCO campus, and while plaintiffs merely walked on the public streets.” Second Amended Complaint ¶ 101 (Pet. App. at 165). “The sole reason that each and every plaintiff was sought out, approached for questioning, seizure and/or search by the law enforcement officials was the color of plaintiffs’ skin.” Id. ¶ 216 (emphasis added) (Pet. App. at 187). Early in 1993 individuals who had been caught up in the sweep filed suit in the United States District Court for the Northern District of New York on behalf of themselves and a class of similarly situated individuals. Pet. App. at 8-9 (panel opinion discussing procedural history). Following proceedings in the District Court unrelated to this petition, a second amended complaint was filed in January 1995 on behalf of thirty-seven individuals and a putative class that included a subclass “of non-white persons sought out, approached, questioned, seized and/or searched by law enforcement officials during the period of September 4 through September 9, 1992.” Second Amended Complaint ¶ 47 (Pet. App. at 153). In addition to Fourth Amendment and other claims not relevant to this petition, the second amended complaint alleged that various law-enforcement officials responsible for the sweep had violated the plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment by singling them out for law-enforcement investigation “solely on the basis of their race.” For instance, the second cause of action asserted,

Second Amended Complaint ¶ 232 (Pet. App. at 191). See also id. ¶ 245 (asserting equal protection claim based on allegation that class members were singled out “solely on the basis of their race”) (Pet. App. at 194); id. ¶ 268 (same) (Pet. App. at 199-200); id. ¶ 289 (same) (Pet. App. at 205-06); id. ¶ 296 (same) (Pet. App. at 207). The District Court, which had jurisdiction over the equal protection claims pursuant to 28 U.S.C. ” 1331 and 1343, dismissed them on the ground that the plaintiffs had failed “to allege that a similarly situated group of non-minority individuals was treated differently.” Pet. App. at 126 (District Court opinion). After dismissing or granting summary judgment to the defendants on other claims and after the parties entered into several stipulations necessary to convert the District Court decision into an appealable final order, the plaintiffs appealed to the Second Circuit. See Pet. App. at 12-13. In a decision dated October 26, 1999, a panel of the Second Circuit reversed the District Court’s granting of summary judgment to the defendants on some of the plaintiffs’ Fourth Amendment claims, but the panel Aaffirm[ed] the dismissal of plaintiffs’ claims under the Equal Protection Clause.” Pet. App. at 51. The plaintiffs moved for reconsideration and rehearing in banc. On August 8, 2000, the panel vacated its original decision and issued an amended opinion that qualified the panel’s original equal protection analysis but nonetheless affirmed the dismissal of the plaintiffs’ equal protection claims. See Pet. App. at 26. In doing so, the court first explained that a plaintiff alleging a violation of the Equal Protection Clause can do so in a variety of ways, including an allegation that a law or policy “expressly classifies persons on the basis of race.” Pet. App. at 15 (internal quotations and citation omitted). It then noted that the plaintiffs contended “that the defendants utilized an express racial classification by stopping and questioning plaintiffs solely on the basis of their race.” Id. The court next rejected the District Court’s conclusion about the necessity of alleging different treatment of similarly situated persons: “Plaintiffs are correct, however, that it is not necessary to plead the existence of a similarly situated non-minority group when challenging a law or policy that contains an express racial classification.” Pet. App. at 16. It nonetheless held that the plaintiffs had failed to plead an equal protection claim because, according to the court, “they have not identified any law or policy that contains an express racial classification.” Pet. App. at 16-19. The plaintiffs again moved for reconsideration and rehearing in banc. These motions were denied over the dissent of five of the court’s twelve judges and prompted six judges to publish or join opinions. See Pet. App. at 57 (opinion of Walker, C.J.); id. at 74 (opinion of Jacobs, J.); id. at 77 (opinion of Calabresi, J., joined by Straub, Parker, and Sotomayor, J.J.); id. at 104 (opinion of Straub, J., joined by Calabresi, J.). The central point of discussion in the court was the one presented by this petition: whether the protections of the Equal Protection Clause are triggered when law-enforcement officials disregard every aspect of a description except for the alleged perpetrator’s race and then seek out individuals for questioning and physical examination based solely on their race. Judge Walker, who authored the two panel opinions in this matter and now serves as Chief Judge for the Second Circuit, wrote first. As an initial matter, after repeating the panel’s view that the plaintiffs’ complaint could not be read to contend that the defendants had disregarded nonracial information and instead had acted solely on the basis of race, Judge Walker asserted that it was not credible to suggest that the police would do such a thing. Pet. App. at 64 (describing as “nonsensical” the suggestion that “the police, who have been given a description of the attacker, would disregard the description and look for someone else”). More significantly, Judge Walker then argued that, even if the police did ignore all nonracial information provided to them in a description that included racial information and in fact sought out persons solely on the basis of their race, that would not implicate the Equal Protection Clause. See id. at 66-67. For policy reasons discussed below, see infra at 23-27, Judge Walker argued that applying the Equal Protection Clause to such race-based actions would be “flawed and unworkable.” Id. at 66. Judge Jacobs also authored an opinion concurring in the denial of the motion for rehearing in banc. Like Chief Judge Walker, he expressed incredulity at the notion that the police would stop and question people solely on the basis of their race when nonracial information was available. Pet. App. at 74-75. More significantly, he also took the position that, even if the police did engage in such activity, that should not implicate the Equal Protection Clause. According to Judge Jacobs, the contention that such race-based, law-enforcement action triggers equal protection “is based on unexamined notions now current in the bien pensant community rather than on any previously understood principles of policing or (for that matter) constitutional law, and is therefore incompletely baked.” See id. at 76. The opinions of Judges Walker and Jacobs were prompted principally by a dissent authored by Judge Calabresi and joined by Judges Straub, Parker, and Sotomayor. After reviewing the facts as alleged in the second amended complaint, these four members of the Second Circuit concluded that the panel had fundamentally misconstrued the complaint and therefore had ignored the important equal protection issue it presented:

Pet. App. at 84 (emphasis in original, citation omitted). And on the question whether the express racial classification fairly alleged by the plaintiffs was subject to strict scrutiny, Judge Calabresi replied, “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.” Pet. App. at 85 (citations omitted). On February 12, 2001, Justice Ginsberg extended to May 17, 2001, the date by which the plaintiffs could file this petition for a writ of certiorari. Pet. App. at 221-22. REASONS FOR GRANTING THE WRIT At issue here is whether the Equal Protection Clause places any limits on the authority of law-enforcement officials to disregard every aspect of the description of a suspect except for his or her race and then engage in a dragnet sweep throughout a municipality targeting the members of an entire minority community for questioning and physical examination solely because of their race. By dismissing the petitioners’ equal protection claim, the Second Circuit effectively ruled that such race-based actions are invisible to the Equal Protection Clause. There is a burgeoning controversy in our society about the role of race in the practices of law-enforcement agencies. See, e.g., “Patterns of Police Violence,” N.Y. Times, Apr. 18, 2001 (lead editorial addressing race-based, law-enforcement controversies across the country and noting that “police shootings and the possibility of racial profiling in street and traffic arrests have raised heightened concern about a systemic disparity in the treatment of whites and minorities by police”). Indeed, concerns about the inappropriate use of race in law enforcement have become so pronounced that Attorney General John Ashcroft, at the direction of President George W. Bush, recently asked Congress to pass legislation authorizing the Justice Department to analyze nationwide data to assess the extent of racial profiling by law-enforcement agencies. As Attorney General Ashcroft explained to Senate Judiciary Committee Chairman Orrin Hatch in a letter dated February 28, 2001:

Letter to Honorable Orrin G. Hatch from Attorney General John Ashcroft (Feb. 28, 2001) (Pet. App. at 223). The issue of racial profiling and its constitutional implications has arisen in three recent cases before this Court. See Atwater v. City of Lago Vista, 69 U.S.L.W. 4262, 4278 (Apr. 24, 2001) (O’Connor, J., dissenting, joined by Stevens, Ginsberg, and Breyer, J.J.) (in dissenting from holding that the Fourth Amendment does not prohibit police officers from effecting full custodial arrests for even minor traffic offenses, stating that “[i]ndeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual”); Illinois v. Wardlow, 528 U.S. 119, 132-34 ¶ nn. 7-9 (2000) (Stevens, J. dissenting, joined by Souter, Ginsberg and Breyer, J.J.) (in dissenting from holding that Fourth Amendment does not prohibit police officers from relying on person’s flight as basis for Terry stop, noting that residents of minority communities may have legitimate reasons for fleeing out of fear of race-based, law-enforcement actions and discussing reports of racial profiling by law-enforcement agencies around the country); Whren v. United States 517 U.S. 806, 810, 813 (1996) (in rejecting argument that inquiry into a police officer’s motive for a vehicle stop was necessary under the Fourth Amendment because “police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car’s occupants,” stating that Equal Protection Clause would be basis for challenge to race-based selective enforcement of laws). Nonetheless, the Court has yet to specify what limits the Equal Protection Clause imposes on the use of race in law-enforcement investigations. Because of the national importance of the issue and because the Second Circuit decision in this matter — particularly as subsequently explained and amplified by its author, Judge Walker — effectively endorses race-based sweeps of minority populations, this case merits plenary review. A COMPLAINT THAT ALLEGES THAT LAW-ENFORCEMENT OFFICIALS, IN RESPONSE TO A SUSPECT DESCRIPTION THAT INCLUDED RACE, TARGETED ALL THE MEMBERS OF THE MINORITY COMMUNITY OF A LOCALITY FOR QUESTIONING AND PHYSICAL EXAMINATION SOLELY ON THE BASIS OF THEIR RACE STATES A CAUSE OF ACTION UNDER THE EQUAL PROTECTION CLAUSE. It would seem indisputable that the Equal Protection Clause would be violated by a police department practice that expressly targeted every black person — regardless of gender, age, size, whereabouts, or any other attribute — within a locality for questioning in response to a report that a crime had been committed by a person the description of whom included the fact that he or she was black. Yet, that is what is alleged to have happened in Oneonta in a complaint that the Second Circuit held did not even implicate the Fourteenth Amendment. A. The Complaint Alleges that Law-Enforcement Officials Targeted the Plaintiffs for Investigation Solely on the Basis of their Race and in Disregard of All Other Nonracial Descriptive Information. As the opinions issued in conjunction with the denial of the plaintiffs’ request for rehearing in banc reveal, at the heart of this case is a dispute about the applicability of the Equal Protection Clause to law-enforcement sweeps that target entire populations solely on the basis of race when the police receive a description of a suspect that includes race as one element of the description. The second amended complaint repeatedly and expressly alleges in specific terms that the defendants targeted the plaintiffs for investigation solely and expressly on the basis of their race. See Second Amended Complaint ¶ 4 (“During the >sweep,’ which occurred over a five-day period, the officials, without any basis for suspecting any individual approached except for his or her race, attempted to stop, question and physically inspect the hands of any and every non-white person in and around the City of Oneonta.”) (Pet. App. at 143); id. ¶ 216 (“The sole reason that each and every plaintiff was sought out, approached for questioning, seizure and/or search by the law enforcement officials was the color of plaintiffs’ skin.”) (Pet. App. at 187); id. ¶ 232 (asserting equal protection claim based on allegation that class members were singled out “solely on the basis of their race”) (Pet. App. at 191); id. ¶ 245 (same) (Pet. App. at 194); id. ¶ 268 (same) (Pet. App. at 199-200); id. ¶ 289 (same) (Pet. App. at 205-06); id. ¶ 296 (same) (Pet. App. at 207); see also id. ¶ 100 (alleging that two newspapers quoted a New York State Police investigator as stating that the objective of the sweep was to try “to examine the hands of all the black people in the community”) (Pet. App. at 165); id. ¶ 101 (“[D]efendants law enforcement officials sought out, approached, questioned, seized, and/or searched any and all non-white members of the SUCO and Oneonta communities.”) (Pet. App. at 165). Consistent with these allegations, one of the named plaintiffs is a woman named Sheryl Champen who was stopped and questioned by a police officer at the Oneonta bus station as she was attempting to board a bus. According to the complaint,

Second Amended Complaint ¶¶ 115-16 (emphasis in original) (Pet. App. at 168). Notwithstanding these allegations, the panel characterized the complaint not as alleging that the plaintiffs were stopped solely on account of their race but instead only as alleging that they were stopped because they matched a description of an assailant that included race as well as other factors:

Pet. App. at 16-17. As for the named plaintiff Sheryl Champen, the panel dismissed the significance of the allegations concerning her with the contention that “this single incident, to the extent it was related to the investigation, is not sufficient to support an equal protection claim under the circumstances of this case.” Id. at 19. And in his subsequent opinion supporting the denial of reconsideration in banc, Judge Walker went so far as to hypothesize a scenario to explain away the allegations concerning Ms. Champen: “[I]t is far more likely that the police, who after stopping her did not ask to see her hands, were initially mistaken about her sex or, because she was boarding a bus, feared losing a person with relevant information.” Id. at 64-65. This analysis violates the most basic precepts governing motions to dismiss claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. All factual allegations are to be taken as true and reasonable inferences are to be drawn in favor of the plaintiff. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The contention that the plaintiffs were stopped solely on the basis of their race and to the exclusion of all other nonracial descriptive information is not, as suggested by the panel, a “premise” of the plaintiffs’ pleadings; rather it is the express, core, and oft-repeated factual contention of the complaint. And the incident concerning the named plaintiff Sheryl Champen is offered simply as one example of this practice, not as the sole example, and cannot be used to negate the scope of the repeated allegations that the defendants stopped an entire class of residents of Oneonta “solely on the basis of their race.” See, e.g., Second Amended Complaint ¶ 4 (stating that persons were stopped and questioned during five-day sweep “without any basis for suspecting any individual approached except for his or her race“; emphasis added) (Pet. App. at 143). Consistent with this, the class in this case is defined to include “non-white persons sought out, approached, questioned, seized and/or searched,” see id. ¶ 47 (Pet. App. at 153); it is not limited to the subset of such non-white persons who are young and male. The plaintiffs’ second amended complaint cannot be read, on a motion to dismiss, as alleging anything short of a practice by the defendants of targeting the minority residents of Oneonta for law-enforcement investigation solely and expressly on the basis of their race. The panel’s characterization of the complaint as alleging that police officials in Oneonta simply stopped those persons who matched the race, age, and gender of the description of a suspect given to the police officials fails to treat the complaint’s express allegations as being true; indeed, it ignores the express allegations and draws inferences against the plaintiffs. The panel’s reformulation of the complaint is incorrect as a matter of law. Cf. Hunt v. Cromartie, 526 U.S. 541, 548-54 (1999) (in case alleging that election district was drawn for racial reasons in violation of Equal Protection Clause, reversing summary judgment for plaintiffs alleging racial motive on grounds that three-judge District Court had failed to draw reasonable inferences in favor of party opposing motion). B. The Equal Protection Clause Is Implicated by Law-Enforcement Practices Targeting Entire Minority Communities for Investigation Solely on the Basis of Race and to the Exclusion of All Other Nonracial Information. Recognizing that the complaint must be read to allege that the defendants targeted the minority community of Oneonta for questioning and physical examination solely and expressly on the basis of race, the constitutional question presented by the complaint is whether such law-enforcement action implicates the Equal Protection Clause. Given the decades of relevant law from this Court, this question must be answered in the affirmative. As an initial matter, it is worth noting that the Court has addressed the unconstitutionality of law-enforcement stops based on national origin, albeit in the context of the Fourth Amendment. In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Court held that national origin alone cannot provide a basis for even the minimal reasonable suspicion necessary to effect a Terry-type vehicular stop of individuals driving in a car near a border to determine whether those individuals were “illegal aliens.” As the Court explained,

422 U.S. at 885-86 (footnote omitted). And in language that bears directly on the controversy here, the Court continued,

Id. at 886-87 (emphasis added; footnote omitted). Though Brignoni-Ponce establishes that the Fourth Amendment bars law enforcement practices based solely on national origin — and perforce race — the Court has not specifically considered the applicability of the Equal Protection Clause to race-based, law-enforcement practices. It has addressed, however, the constitutionality of raced-based government action in a variety of other contexts over the last fifty years and uniformly has held that such action is subject to serious scrutiny under the Equal Protection Clause. See, e.g., Brown v. Board of Education of Topeka, 347 U.S. 483, 493 (1954) (holding unconstitutional state statute segregating schools “solely on the basis of race” on grounds it violated Equal Protection Clause); Loving v. Virginia, 388 U.S. 1, 2, 12 (1967) (holding unconstitutional state statute barring certain marriages “solely upon distinctions drawn according to race” and stating, “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”); McLaughlin v. Florida, 379 U.S. 184, 191-94 (1964) (holding unconstitutional state statute criminalizing cohabitation solely on basis of race on grounds it violated Equal Protection Clause); cf. Korematsu v. United States, 323 U.S. 214, 216 (1944) (applying heightened scrutiny under Fifth Amendment to wartime measures directed at persons of Japanese ancestry). Given the Court’s long-standing and unequivocal treatment of race-based government discrimination, the conclusion that the Equal Protection Clause is not even implicated by a law-enforcement practice of stopping and questioning large numbers of persons solely and expressly on the basis of their race and in disregard of the nonracial information provided to the police can stand only if one contends that this specific form of race-based action is of a type that somehow is exempted from the otherwise well-established protections of the Fourteenth Amendment. Yet nothing in this Court’s Fourteenth Amendment jurisprudence supports such a contention. Indeed, in the decision in which the Court perhaps has come closest to the issue, it clearly suggested to the contrary. In Whren v. United States, 517 U.S. 806 (1996), the Court was asked to hold that the Fourth Amendment allows a court to consider whether an articulated legitimate basis for a police stop in fact is a pretext to obscure an unlawful purpose. In support of this position the petitioners, who were black, had argued that such a motive inquiry was necessary because “police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car’s occupants.” Id. at 810. In a unanimous opinion authored by Justice Scalia, the Court rejected the petitioners’ Fourth Amendment claim but responded to their argument about race-based law enforcement as follows:

Id. at 813. If the Equal Protection Clause is implicated when police officers enforce racially-neutral traffic laws in a race-based manner, then surely it is implicated when they dispense with the pretense of racially-neutral action and stop and question individuals expressly and solely on account of their race while disregarding nonracial information, as the complaint alleges happened in Oneonta. C. The Policy Concerns Expressed by Judges Walker and Jacobs Are Not Implicated by Instances in Which Law-Enforcement Officials Rely Solely on Race to the Exclusion of Nonracial Information. In rejecting the suggestion that race-based sweeps must pass muster under the Equal Protection Clause, Judges Walker and Jacobs did not identify any decisions from this Court or any other court that supported their position. See Pet. App. at 66-67 (opinion of Walker, C.J.); id. at 75-77 (opinion of Jacobs, J.). Rather, they relied entirely upon policy concerns that the approach advanced by petitioners would hamper law-enforcement efforts in light of the fact that law-enforcement officials often receive descriptions of suspects that include racial information. While law-enforcement officials may in fact often receive such descriptions, the petitioners respectfully submit that the ultimate concerns expressed by Judges Walker and Jacobs are unfounded. In objecting to the suggestion that the Equal Protection Clause applies when law-enforcement officials rely solely on race to the exclusion of nonracial information, Judge Walker first argued,

Pet. App. at 66-67. Yet, if police officers were to receive a description of a fleeing suspect of a certain race in “a defined and limited” area and then were to stop every person of that race in that area, they would not be stopping persons solely on the basis of race; they also would be relying on location and thus would be doing nothing more than actually relying on a description given to them. And whatever judgment might fairly be left to police officers to disregard easily-altered descriptive information about suspects (like clothing) while searching for a fleeing suspect in such a defined area, it is an entirely different matter to say that police officers who receive a description of a young, black, male are free to target for questioning and examination over a five-day period every black person in an entire city, regardless of gender and regardless of age — as is alleged in the complaint. Judge Walker’s second concern was that the rule “also would apply to instances where a police officer forgets or confuses part of the description — whether the perpetrator was wearing a grey jacket or a brown one, for example. In such instances, prudent officers would fear to question anyone at all lest they draw an equal protection lawsuit.” Pet. App. at 67. Judge Jacobs expressed a similar concern, contending that the petitioners’ position would mean that “when a witness or victim describes a suspect in terms that include race, any deviation by the police from the non-racial descriptive features will be deemed the making of a racial classification subject to strict scrutiny.” Id. at 75. Yet nothing in the application of the Equal Protection Clause to stops based expressly on race to the exclusion of nonracial information would mean that “any deviation” from a description would warrant heightened constitutional scrutiny. Rather, under the petitioners’ view of the Equal Protection Clause, law-enforcement officials would remain free to pursue suspects who generally match descriptions with the normal amount of discretion and flexibility the courts accord to such investigative activity. What law-enforcement officials would not be free to do is to rely on the fact that a description of an alleged perpetrator included a racial identification to justify targeting for investigation every person of that race in the locality solely because of their race and to the exclusion of nonracial information. The petitioners have never suggested that law-enforcement officials who receive a description of a suspect that includes racial information must ignore the suspect’s race in a subsequent investigation. In that sense, identification cases represent an exception to the general rule that race is an irrelevant and constitutionally impermissible basis for law-enforcement action. But even in the identification context, the Constitution limits the manner in which race can be used by the police. At a minimum, when law-enforcement officials ignore all the nonracial descriptive information provided to them, they transform appropriate description-based action into impermissible race-based action. Contrary to the view of the Court of Appeals, therefore, the Equal Protection Clause is implicated in this case because, as alleged in the complaint, law-enforcement officials in Oneonta ignored all nonracial elements of the description given them and targeted the city’s entire minority population for investigation solely on the basis of their race. The final, “and perhaps most troubling” concern, according to Judge Walker, was the possibility that the Equal Protection Clause “might be used as a prophylactic device to invalidate the arrest of an actual perpetrator, if that person could successfully argue that when he was first stopped and questioned he imperfectly fit a victim description that included race.” Pet. App. at 67. Yet, as discussed above, this case does not raise any issue about the consequences of reliance upon “imperfect” fits. Moreover, this is a civil suit and presents no question about the existence of an exclusionary rule to remedy violations of the Equal Protection Clause. CONCLUSION In this case the hundreds of members of the minority community of Oneonta, New York were targeted for criminal investigation for no reason other than the color of their skin. Whatever conclusions might be drawn about the circumstances in which race-based, law-enforcement investigations might meet strict scrutiny, this sweep qualifies as race-based government action that implicates the Fourteenth Amendment. The position of the judges of the Court of Appeals to the contrary is an error of sufficient national import — both in terms of Equal Protection law and the current national controversy concerning the use of race in law-enforcement practices — to warrant the granting of a writ of certiorari. Respectfully submitted, Christopher T. Dunn (Counsel of Record) Arthur N. Eisenberg New York Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 344-3005 Steven R. Shapiro Reginald T. Shuford American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 549-2500 Scott N. Fein Joseph D. Stinson Whiteman Osterman & Hanna One Commerce Plaza Albany, New York 12260 (518) 487-7600 Dated: May 16, 2001 New York, New York