In Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000), Judge Sotomayor joined an opinion dissenting from the denial of rehearing en banc that, along with another dissent, set forth what Chief Judge Walker called “novel equal protection theories that … would severely impact police protection.” Let’s take a fuller look at this case.
As the panel opinion in Brown (221 F.3d 329) put it, “This case bears on the question of the extent to which law enforcement officials may utilize race in their investigation of a crime.” The case arose from the following facts: A woman who had been attacked in her home told police that her attacker was a young black man who, in the course of the struggle, had cut himself on his hand with his knife. Police dogs tracked the attacker’s scent in the direction of a nearby college. The police obtained from the college a list of its black male students and attempted to locate and question them. Over several days, the police then conducted a sweep of Oneonta in which they stopped and questioned non-white persons on the streets and inspected their hands for cuts.
Many of the individuals subjected to the police investigation then sued the police for alleged violations of the Equal Protection Clause and the Fourth Amendment (among other claims). The district court granted summary judgment for the police.
On appeal, the panel affirmed the district court on the Equal Protection claim but reversed it on the Fourth Amendment claim:
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.…
Police action is still subject to the constraints of the Fourth Amendment, however, and a description of race and gender alone will rarely provide reasonable suspicion justifying a police search or seizure. In this case, certain individual plaintiffs were subjected to seizures by defendant law enforcement officials, and those individuals may proceed with their claims under the Fourth Amendment.
The Second Circuit denied rehearing en banc, with five judges, including Sotomayor, dissenting. In his dissent (which Sotomayor joined, except for one part), Judge Calabresi argued that “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 state is “creating an express racial classification that can only be approved if it survives strict scrutiny.” Judge Straub also wrote a separate dissent.
In his opinion concurring in the denial of en banc rehearing, Chief Judge Walker, who authored the panel opinion, responds at length to the dissenting opinions of Judges Calabresi and Straub. Here are some excerpts from Walker’s opinion that apply fully to the parts of the Calabresi opinion that Sotomayor embraced:
Some of the judges dissenting from denial of rehearing in banc … have chosen this occasion to advance, for the first time, novel equal protection theories that, in my view, would severely impact police protection.… 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.…
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.…
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.…