Brown v City of Oneonta New York Brief Amicus Curiae in Support of Plaintiffs-Appellees-Cross-Appellants

    947191L
94-7191L, 94-7233C0N, 94-7287C0N, 96-7140C0N,

________ 96-7141 COW, 96-7145CON, 96-73Q5COW, 96-7300XAP________

United States Court of Appeals
F o r th e  S e c o n d  C irc u it

RJCKY BROWN, JAMEL CHAMPEN, SHERYL CHAMPEN, HOPETON GORDON, JEAN CAN- 
TAVE. RAISHAWN MORRIS, TIM RICHARDSON, DARRYL TAYLOR, ROBERT WALKER, 
CLEMENT MALLORY, RONALD SANCHEZ, DARNELL LEMONS, JOHN BUTLER, MICHAEL 
CHRISTIAN. KING GONZALEZ, JASON CHILDS, PAUL HEYWARD, JR„ RONALD JEN­
NINGS, PAUL HOWE, BUBU DEMASIO, WILSON ACOSTA, CHRIS HOLLAND. JERMAINE 
ADAMS, FELIX FRANCIS. DANIEL SONTAG, RONALD LYNCH, KENNETH MCCLAIN, 
HERVEY PIERRE, VINCENT QUINONES, LAURENCE PLASKETT, LAM ONT WYCHE, 
STEVEN YORK, TYRONE LOHR, MAJOR BARNETT, CHARLES BATTISTE, KEVIN ALLEN, 
& WAYNE LEWIS on behalf of themselves, and all other persons similiariy situated.

Plaintiffs-Appellees, Cross-Appellants,
- v -

CITY OF ONEONTA, NEW YORK, POLICE DEPARTMENT, o f the City of Oneonta, New York, 
JOHN J. DONADIO, Chief of Police of the City of Oneonta, in his individual & official capacities, 
WILLIAM M. DAVIS, Oneonta Police Officer, in his individual & official capacities, ANONYMOUS 
OFFICERS, & Investigators of the Police Dept, o f the City o f Oneonta, in their individual & official 
capacities, H. KARL CHANDLER, New York State Police Investigator, in his individual & official 
capacities, ROBERT FARRAND, New York State Police Troop C Commander, in his individual & 
official capacities, GEORGE CLUM, New York State Police Investigator, in his individual & official 
capacities, KEVIN MORE, New York State Police Investigator, in his individual & official capacities, 
JOHN WAY, New York State Police Investigator, in his official capacities, MARK KIMBALL, New 
York State Trooper, in his individual & official capacities, KENNETH GRANT, New York State 
Trooper, in his individual & official capacities, NYS TROOPER FARRAGO, in his individual & official 
capacities, MERRITT HUNT, SUCO Department o f Public Safety Officer, in his individual & official 
capacities, TIM JACKSON, SUCO Department of Public Safety Officer, in his individual & official 
capacities, LEIF S, HARTMARK in his individual & official capacities. ERIC WILSON, in his indi­
vidual & official capacities, CARL SHEDLOCK Oneonta Police Officer, in his individfaal & official 
capacities; STATE UNIVERSITY OF NEW YORK; STATE UNIVERSITY OF NEW YORK COL­
LEGE AT ONEONTA (“SUCO”).

Defendants-Appellants-Cross Appellees,
JOSEPH REDMOND, Oneonta Police Officer, in his individual and official capacities, X. OLSEN, 
Oneonta Police Officer, in his individual & official capacities, STATE OF NY, STATE UNIVERSITY 
OF NEW YORK, STATE UNIVERSITY OF NEW YORK, College at Oneonta (SUCO). NYS 
DIVISION OF STATE POLICE, ANONYMOUS STATE POLICE OFFICIALS & INVESTIGA­
TORS, in their individual & official capacities, SUCO DEPARTMENT OF PUBLIC SAFETY, 
JOHN EDMONDSON, SUCO Department o f Public Safety Officer, in his individual & official 
capacities, ANONYMOUS PUBLIC SAFETY OFFICERS, in their individual & official capacities, 
ANONYMOUS SUCO, Computer Employees, in their individual & official capacities.

Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF NEW YORK

BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND 
IN SUPPORT OF PLAINTIFFS-APPELLEES-CROSS-APPELLANTS

Elaine R. Jones 
D irector-Counsel

David T. Goldberg 
Paul K. Sonn
NAACP Legal D efense

Theodore M. Shaw and Educational Fund, Inc.
Norman J. Chachkin 99 Hudson Street
Charles Stephen Ralston New York, N .Y . 10013

(212) 219-1900 
Attorneys for Amicus Curiae



TABLE OF CONTENTS

TABLE OF A U T H O R I T I E S ..........................................ii

STATEMENT OF INTEREST OF AMICUS C U R I A E ......................  1

FACTS AND PROCEEDINGS BELOW ...................................  2

SUMMARY OF ARGUMENT............................................  8

ARGUMENT .......................................................... 12

I. The Decision Below Rests on a Basic Misapprehension
of Equal Protection Law: Express Racial
Classifications Always Require Close Judicial
S c r u t i n y ...............................................12

II. Identification of a Similarly Situated, But
Differently Treated, Nonminority Class Is Merely 
One Way Among Many of Proving Racial
Discrimination, in Violation of the Equal 
Protection Clause ...................................  17

III. Requiring Identification of a "Similarly Situated"
Class Is Plainly Inappropriate in Cases Involving 
Racial Discrimination ............................... 25

IV. The Complaint Alleges Governmental Conduct
Violative of Rights Clearly Established Under the 
Fourth and Fourteenth Amendments .................  29

C O N C L U S I O N ........................................................

i

l



TABLE OF AUTHORITIES

CASES

Adarand v. Pena,
132 L. Ed. 2d 158 (1995)............................ passim

Albert v. Carovano,
851 F . 2d 561 (2d Cir. 1988) ............................  20

Anderson v. Martin,
375 U.S. 399 (1964) ..........................  9, 15, 25, 34

Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252 (1977) ................................. passim

Batson v. Kentucky,
476 U.S. 79 (1986).......................................  1

Blue v. Koren,
72 F . 3d 1075 (2d Cir. 1995) ............................  12

Bray v. Alexandria Women's Health Clinic,
122 L. Ed. 2d 34 (1993) .................................  18

Brown v. Board of Educ.,
347 U.S. 483 (1954) .....................................  1

Brown v. City of Oneonta (Brown II),
858 F. Supp. 340 (N.D.N.Y. 1 9 9 4 ) ........................  5

Brown v. City of Oneonta (Brown III),
911 F. Supp. 580 (N.D.N.Y 1996) ....................passim

Brown v. City of Oneonta (Brown IV),
916 F. Supp. 176 (N.D.N.Y. 1 9 9 6 ) ........................  5

Brown v. Texas,
443 U.S. 47 (1979).......................................  31

ii



Buffkins v. City of Omaha,
922 F . 2d 465 (8th Cir. 1 9 9 2 ) ......................  32, 37

City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985) .................................  6, 13

City of Los Angeles v. Garza,
918 F . 2d 763 (9th Cir. 1 9 9 0 ) ............................  17

City of Richmond v. J. A. Croson Co.,
4‘88 U.S. 469 (1989) ................................. passim

City of Richmond v. United States,
422 U.S. 358 (1975)   10, 21

Davis v. Mississippi,
394 U.S. 721 (1969)   1

Delaware v. Prouse,
440 U.S. 648 (1979)   38

Department of Agriculture v. Moreno,
413 U.S. 528 (1973)   28

Edmonson v. Leesville Concrete Co.,
500 U.S. 614 (1991)  35

Esmail v. Macrane,
53 F . 3d 176 (7th Cir. 1995) ............................  28

FCC v. Beach Communications, Inc.,
124 L. Ed. 2d 211 (1993).................................  27

Furman v. Georgia,
408 U.S. 238 (1972) .....................................  1

Gehl Corp. v. Koby,
63 F . 3d 1528 (10th Cir. 1995) ..........................  25

Guinn v. United States,
238 U.S. 347 (1915) .....................................  13

iii



35

24

38

25

32

12

34

31

32

22

27

29

25

34

Hall v. Pennsylvania State Police, 
570 F .2d 86 (3d Cir. 1978) . 16, 31,

Hishon v. King & Spalding,
467 U.S. 69 (1984) .............

INS v. Delgado,
466 U.S. 210 (1984).............

Imbler v. Pachtman,
424 U.S. 409 (1976) .............

Johnson v. Transportation Agency,
480 U.S. 616 (1987) .............

Kaluczky v. City of White Plains,
57 F .3d 202 (2d Cir. 1995) . . .

Kolender v. Lawson,
. 461 U.S. 352 (1983) .............

Koreraatsu v. United States,
323 U.S. 214 (1944) .............

Lankford v. Gelston,
364 F .2d 197 (4th Cir. 1966) . . .

Leatherman v. Tarrant County,
122 L. Ed. 2d 517 (1993) .........

Lehnhausen v. Lake Shore Auto Parts Co. 
410 U.S. 356 (1973) .............

Loving v. Virginia,
388 U.S. 1 (1967) ...............

Malley v. Briggs,
475 U.S. 335 (1986) .............

McFarland v. Smith,
611 F .2d 414 (2d Cir. 1979) . . .

20 ,

1, 9, 15,

29, 30, 31,

IV



Miller v. Johnson,
132 L. Ed. 2d 762 (1995)............................ passim

Mitchell v. Baldridge,
759 F . 2d 80 (D.C. Cir. 1 9 8 5 ) ............................  20

Mitchell v. Forsyth,
472 U.S. 511 (1985) ............... .....................  7

Moran v. Burbine,
475 U.S. 412 (1986) ............................ .. 31

N.A.A.C.P. v. Button,
371 U.S. 415 (1963) .....................................  1

Orange Lake Associates Inc. v. Kirkpatrick,
21 F . 3d 1214 (2nd Cir. 1 9 9 4 ) ........... 9, 13, 18, 26, 28

Palmore v. Sidoti,
466 U.S. 429 (1984) .....................................  31

People v. Bower,
24 Cal.3d 638, 597 P.2d 115 (1979) .................... 16

People v. Hollman,
79 N . Y . 2d 181, 581 N.Y.S.2d 619 (1992).................  23

Personnel Adm'r of Massachusetts v. Feeney,
442 U.S. 256 (1979) .................................  9, 13

Plyler v. Doe,
457 U.S. 202 (1982) .....................................  27

Powers v. Ohio,
499 U.S. 400 (1991) .................................passim

Regents of University of California v. Bakke,
438 U.S. 265 (1978) ........................  11, 14, 30, 39

Reid v. Georgia,
448 U.S. 438 (1980) ..................................... 33

v



28
Romer v . Evans,

No. 94-1039, 1996 U.S. LEXIS 3245 (May 20, 1996)

Sector Enters., Inc. v. Dipalermo,
779 F. Supp. 236 (N.D.N.Y. 1 9 9 1 ) ...................... 7, 26

Samaad v. City of Dallas,
940 F . 2d 925 (5th Cir. 1 9 9 1 ) ...................... . 21, 26

Shaw v. Reno,
125 L. Ed. 2d 511 (1993)............................ passim

Shelley v. Kraemer,
334 U.S. 1 (1948) .......................................  14

Siegert v. Gilley,
500 U.S. 226 (1991) .................................  12, 22

Smith v. Goguen,
.415 U.S. 566 (1974)......................................... 35

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1 (1971)......................' ..................9

Talley v. Bravo Pitino Restaurant, Ltd.,
61 F . 3d 1241 (6th Cir. 1 9 9 5 ) ............................  20

Terry v. Ohio,
392 U.S. 1 (1968) .......................................  1

Trans World Airlines, Inc. v. Thurston,
469 U.S. Ill (1985)   20

U.S. Postal Service Bd. v. Aikens,
460 U.S. 711 (1983)   20

United States v. Harvey,
16 F.3d 109 (6th Cir. 1994) .................... 34f 27, 38

United States ex rel. Haynes v. McKendrick,
481 F . 2d 152 (2nd Cir. 1973) ..........................  38

vi



31

32

30

32

32

38

31

34

37

32

31

32

34

31

United States v. Armstrong,
No. 95-157, 64 U.S.L.W. 4305 (May 13, 1996) . . . .

United States v. Bautista,
684 F .2d 1286 (9th Cir. 1982) ......................

United States v. Beck,
602 F .2d 726 (5th Cir. 1979) ........................

United States v. Brignoni-Ponce,
422 U.S. 873 (1975) ........................  10, 29,

United States v. Ceballos,
684 F .2d 177 (2d Cir. 1981) ........................

United States v. Hooper,
955 F .2d 484 (2d Cir. 1991) ........................

United States v. Laymon,
730 F. Supp. 332 (D. Colo. 1990) ....................

United States v. Lopez-Martinez,
25 F .3d 1481 (10th Cir. 1994) ......................

United States 
992 F .2d

v. Manuel,
272 (10th Cir. 1993)

United States 
428 U.S.

v. Martinez-Fuerte, 
543 (1976) . . . .

United States 
448 F .2d

v. Nicholas,
622 (8th Cir. 1971)

United States 
480 U.S.

v. Paradise, 
149 (1987)

United States 
899 F .2d

United States 
995 F .2d

v. Patrick,
169 (2d Cir. 1990)

v. Prandy-Binett,
1069 (D.C. Cir. 1993)

8, 30,

V l l



United States v. Rias,
524 F . 2d 118 (5th Cir. 1 9 7 5 ) ............................  32

United States v. Taylor,
956 F . 2d 572 (6th Cir. 1 9 9 2 ) ............................  37

United States v. Thomas,
787 F. Supp. 665 (E.D. Tex. 1992) ......................  37

United States v. Travis,
62 F . 3d 170 (6th Cir. 1995) ...............  11, 16, 30, 31

United States v. Williams,
714 F . 2d 777 (8th Cir. 1 9 8 3 ) ............................  30

Washington v. Davis,
426 U.S. 229 (1976) .................................  17, 18

Washington v. Seattle School Dist. No. 1,
458 U.S. 457 (1982) .................................  9, 17

Williams v. Alioto,
549 F . 2d 136 (9th Cir. 1 9 7 5 ) .............................  32

Williamson v. Lee Optical,
348 U.S. 483 (1955)   26

Wygant v. Jackson Bd. of Educ.,
476 U.S. 267 (1986)   32

Yale Auto Parts v. Johnson,
758 F . 2d 54 (2d Cir. 1 9 8 5 ) ............................... 26

Yusef v. Vassar College,
35 F.3d 709 (2d Cir. 1994) ............................  19

ST A T U T E S AND R U LES

Fed. R. Civ. P. 12(b) (6) .................................passim

Fed. R. Civ. P. 23 ............................................ 4

viii



Fed. R. Civ. P. 23(b)   4

20 U.S.C. § 1 2 3 2 g .............................................  2

28 U.S.C. 1 2 9 1 ................................................ 7

42 U.S.C. § 1 9 8 1 ........................................... passim

M ISC ELLA N EO U S

Note, 'Developments in the Law -- Race and the 
Criminal Process, 101 Harv. L. Rev. 1472
(1988)................................................  34, 36

Sheri Lynn Johnson, Race & The Decision to Detain a
Suspect, 93 Yale L.J. 214 (1983)........................  33

U.S. Sentencing Comm'n, Annual Report (1995) ...............  6

IX



STATEMENT OF INTEREST OF AMICUS CURIAE
The NAACP Legal Defense and Educational Fund, Inc. (LDF) was 

incorporated in 1939 under the laws of New York State, for the 
purpose, inter alia, of rendering legal aid free of charge to 
indigent "Negroes suffering injustices by reason of race or color." 
Its first Director-Counsel was Thurgood Marshall.

LDF has appeared as counsel of record or amicus curiae in 
numerous cases before the Supreme Court, and before this and other 
federal Courts of Appeals, involving the proper scope of 
constitutional and statutory civil rights guarantees. See, e.g., 
Brown v. Board of Educ., 347 U.S. 483 (1954); Loving v. Virginia, 
388 U.S. 1 (1967) ; see also N .A .A.C .P . v. Button, 371 U.S. 415, 422 
(1963) (describing Legal Defense Fund as a "'firm' . . . which has 
a corporate reputation for expertness in presenting and arguing the 
difficult questions of law that frequently arise in civil rights 
litigation").

As part of its mission of eradicating racial injustice from 
all aspects of American life, the Legal Defense Fund has long had 
a special concern for the influence of race in the administration 
of criminal justice. Accordingly, LDF has played an active role in 
cases seeking to ensure fair treatment in law enforcement, e.g., 
Terry v. Ohio, 392 U.S. 1 (1968); Davis v. Mississippi, 394 U.S. 
721 (1969) , and in all phases of the criminal justice process, 
e.g., Batson v. Kentucky, 476 U.S. 79 (1986); Furman v. Georgia, 
408 U.S. 238 (1972).



FACTS AND PROCEEDINGS BELOW
This is an appeal from two district court orders in a civil 

rights action arising from the conduct of various governmental 
officials, as well as the City of Oneonta, New York, the State 
University College at Oneonta ("SUCO"), and the State University 
system. The relevant facts of the case are, for the most part, 
undisputed.1

In the early morning of September 4, 1992, police received a 
report of an attempted burglary and assault committed a few hours 
earlier at a private residence just outside Oneonta, New York. The 
complaining witness, a 77-year-old woman who was an overnight guest 
in the home, reported having been assaulted at knife-point in a 
darkened room. She alleged that her assailant was a young black 
man who, she said, had sustained a cut on his hand or arm in the 
course of committing the offense.

The police reacted in sweeping fashion. The day the crime was 
reported, officers appeared at the local campus of the State 
University, urging university officials to generate and turn over 
to them a list of every African-American male enrolled at the 
institution. Notwithstanding a statutory obligation to maintain 
the privacy of students' personal records, see 20 U.S.C. § 1232g,2 
university officials satisfied the police request, compiling a list 
with the names and addresses of 78 black male SUCO students.

*Given the present posture of the case, of course, this Court 
must assume that the allegations of plaintiffs Brown, et al., are
true.

2The Federal Educational Records Privacy Act or "FERPA."
2



A concerted effort to interrogate and physically examine (for 
scars) every black male student ensued. Various students were 
accosted at their homes and dormitory rooms, while others were 
stopped while walking or driving on campus and compelled to 
identify themselves, account for their whereabouts, and submit to 
physical inspection. In several instances, this questioning was 
belligerent in tone, and a number of the students were subjected to 
repeated interrogations, at the instigation of different officers.

When this campus-wide operation failed to yield a suspect, the 
police cast a still wider net. Over the next five days, from 
September 4 to September 9, 1992, police sought to detain for 
questioning and physical examination every African-American male 
they, could locate in and around the City of Oneonta.3 In several 
instances, doing so entailed pulling cars over for no reason (save 
for the fact that an occupant was an African-American man), see, 
e.g., J.A. at 584-85, 595-96 (second amended complaint at 122- 
23, 168-69), and preventing African Americans from boarding buses 
at the Oneonta terminal, unless and until they submitted to 
questioning and physical inspection, see, e.g., Brown v. City of 
Oneonta, 911 F. Supp. 580, 586 (N.D.N.Y 1996). In the end, this 
blanket, race-based dragnet fared no better than the on-campus 
effort; no suspect was apprehended, nor have any arrests yet been 
made in connection with the crime.

3Thus, defendant Chandler, a senior investigator with the 
state police told a local newspaper, "We've tried to examine hands 
of all the black people in the community." J.A. at 247.

3



In 1993, plaintiffs-appellees-cross-appellants brought this 
suit in federal court against the City, County, State, and 
University officials who had taken part in the police action, as 
well as against the City of Oneonta and the State University, 
complaining, inter alia, of violation of their rights under the 
Fourth Amendment, the Equal Protection Clause of the Fourteenth 
Amendment, the "equal benefits" guarantee of 42 U.S.C. § 1981,4 
FERPA, and New York state law. Plaintiffs sought certification 
under Fed. R. Civ. P. 23 of two classes, one consisting of the 78 
students whose records had been handed over by the university 
officials, the other comprised of the estimated 100 to 300 other 
African-American men5 who had been stopped in the course of the 
City's five-day sweep.6 The defendants moved for dismissal and for

442 U.S.C. § 1981(a) provides:
All persons within the jurisdiction of the United States shall 
have the same right in every State and Territory to make and 
enforce contracts, to sue, be parties, give evidence, and to 
the full and equal benefit of all laws and proceedings for the 
security of persons and property as is enjoyed by white 
citizens, and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every kind, and 
to no other.

Because the court below subjected plaintiffs' § 1983 claims based 
on violations of the Equal Protection Clause and their § 1981 
"equal benefits" claims to essentially the same (mistaken) 
analysis, the term "Equal Protection" claims will, unless otherwise 
indicated, be used to refer to both the constitutional and the 
statutory claim.

"Also included was at least one woman. See J.A. at 582-83 
(second amended complaint at 113-17) .

6A1though the SUCO plaintiffs were certified as a class, the 
court below denied certification to the second group, on the ground 
that plaintiffs' Fourth Amendment claims did not present 
sufficiently common legal and factual questions to warrant class

4



summary judgment on the various claims, asserting, inter alia, that 
they were entitled to qualified immunity and that plaintiffs had 
failed to make out a claim on which relief could be granted, Fe d. 
R. Civ. P. 12(b) (6) .

In a series of rulings culminating in the orders from which 
this appeal was taken,7 the district court (1) granted summary 
judgment on many of the individual Fourth Amendment claims, 
(2) ruled that various defendants were not qualifiedly immune from 
liability arising from FERPA violations, and (3) dismissed -- as 
failing to state a claim, see Fe d. R. Civ. P. 12(b) (6) -- all 
plaintiffs' claims against Oneonta officials alleging violations of 
the Equal Protection Clause of the Fourteenth Amendment and the 
equal, benefits guarantee of 42 U.S.C. § 1981.8

certification, see Fe d. R. Civ. P. 23(b), as their disposition would 
in the end depend on the reasonableness of the relation between the 
quantum of individualized suspicion and the scope of the restraint 
on individual liberty. In a later opinion, the court recognized 
that Rule 23 (b) might be satisfied with respect to the Equal 
Protection claims of the second class, but declined to revisit the 
issue until plaintiffs stated a claim upon which relief could be 
granted, Brown v. City of Oneonta, 858 F. Supp. 340, 348 (N D N Y 1994) .

1 See Brown v. City of Oneonta, 916 F. Supp. 176 (N.D.N.Y.
1996) {"Brown IV"); Brown v. City of Oneonta, 911 F. Supp. 580 
(N.D.N.Y 1996) {"Brown III") . An earlier decision was reported at 
858 F. Supp. 340 (N.D.N.Y. 1994) {"Brown II"); the first opinion
relating to the amended complaint {"Brown I") was delivered orally 
and is reproduced in the Joint Appendix at 326-362 (Transcript of 
Proceedings (Dec. 13, 1993)).

BThe court dismissed the Equal Protection and § 1981 claims 
against the City defendants with prejudice, on the ground that even 
if plaintiffs amended their complaint so as to state a claim, those 
defendants would be entitled to summary judgment, based on the 
contents of crime reports they had turned over to plaintiffs. 
Because the facts surrounding State defendants' treatment of 
similarly situated" white individuals, see infra, were not known

5



Reasoning that the Equal Protection Clause is "essentially a 
direction that all persons similarly situated be treated alike," 
Brown III, 911 F. Supp. at 588 (quoting City of Cleburne v. 
Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)), the district 
court held that 12(b)(6) dismissal was warranted because plaintiffs 
had failed to allege that a "similarly situated class of non­
minorities" had been treated differently in the past (i.e., not 
been subject to a city-wide, race-based police dragnet, in response 
to a victim's report that the perpetrator of a violent crime had 
been a "white male") or that "a group of similarly situated non­
minorities even exist[ed]," id.9 On the court's view, the apparent

to the court (the State defendants had not produced their crime 
reports), the Equal Protection claims against State officers were 
dismissed without prejudice and with leave to amend, Brown III, 911
F . Supp. at 589.

Although numerous other issues were addressed in the decisions 
below, including some -- the FERPA-based claims, for example -- 
that are before this Court, this brief's focus will be on the Equal
Protection claims.

"While seemingly accepting that there was no precedent for a 
race-based sweep involving a suspect described as "white" (and 
legally constrained, under Rule 12(b)(6), to accept as true 
plaintiffs' allegations that defendants "have not . . . during an
investigation of a crime in which the suspect was a white male, 
attempted to seek out every white male in and around Oneonta, New 
York," J.A. at 610, 618, 620, 625-26, 627-28, 634, 639 (^| 230,
260, 266, 287, 294, 319, 339), the court was unwilling to let the 
case go forward, in light of the complete absence from recent 
Oneonta crime reports of any references to a "white male" or "young 
white male" being sought in connection with a violent crime.

Importantly, the court never determined that white men, in 
fact, have never committed (or been suspected of committing) 
equally serious crimes, but only that, in the reports it had seen, 
"Oneonta police had not categorized the suspects of violent crimes 
as white or non white." Nationwide, white offenders account for an 
estimated 30-45% of those who commit various types of violent 
crime, see, e.g., U.S. Sentencing Comm'n , Annual Report at 45 (1995)

6



non-existence of a sufficiently "similar" non-minority cohort 
necessitated concluding, "beyond all doubt," id., that no set of 
facts could be established entitling plaintiffs to relief under 
§ 1981 or the Fourteenth Amendment, Fe d. R. Civ. P. 12(b) (6) . 
Additional inquiry into defendants' racially discriminatory intent 
was unnecessary, the court further explained, because proof of a 
"bad motive" is "not enough" to establish denial of Equal 
Protection. Brown III, 911 F. Supp. at 588 (citing Sector Enters., 
Inc. v. DiPalermo, 779 F. Supp. 236, 247 (N.D.N.Y. 1991)).10

On March 3, 1996, the plaintiffs filed a timely notice of
appeal.11

(table 11) , and there is no reason apparent why Oneonta whites 
would be an exception to this pattern.

“ Significantly, the court expressly held, in Brown III, that 
a genuine factual issue existed as to whether defendants had acted 
with the discriminatory animus required to make out a § 1981 claim. 
See 911 F. Supp. at 590 (setting forth facts supporting inference 
of discriminatory purpose).

“This case is before this Court on interlocutory appeal from 
a "final decision," 28 U.S.C. 1291, denying various defendants 
qualified immunity on various claims. See Mitchell v. Forsyth, 472 
U.S. 511 (1985). Accordingly, the court need not (and, i n ’some 
instances, may not) review all of the rulings of the district 
court. This brief will focus principally on the claims of race- 
based treatment -- improperly dismissed by the court below -- that 
are, for reasons set forth herein, see infra note 13, and in the 
Brief of Brown, et al., properly addressed by the Court at this 
stage of the litigation.

7



SUMMARY OF ARGUMENT
The events giving rise to this lawsuit describe an astonishing 

instance of official disregard for the basic constitutional right, 
secured by the Equal Protection Clause, to be treated by the 
government as an individual, rather than as a member of a "suspect" 
group defined in overtly racial terms. The failure of the court 
below to perceive the grave constitutional questions presented by 
defendants' conduct -- and the jarring conclusion that plaintiffs 
could adduce no set of facts entitling them to relief under the 
Fourteenth Amendment -- stem from several serious, interrelated 
legal errors, each warranting this Court's correction.

The decision below rests on a serious misapprehension of the 
substance of the Equal Protection guarantee. The Fourteenth 
Amendment vests each person with a right to be treated as an 
individual, rather than as a member of a racial group, and limits 
governmental use of the "highly suspect tool," City of Richmond v. 
J. A. Croson Co., 488 U.S. 469, 493 (1989), of racial 
classification to instances when such resort is narrowly tailored 
to the achievement of compelling governmental purposes -- a 
restraint that appears to have been flagrantly disregarded by the 
governmental defendants in this case. See United States v. Manuel, 
992 F.2d 272, 275 (10th Cir. 1993) ("selecting persons for 
consensual [police] interviews based solely on race is deserving of 
strict scrutiny").

For these reasons, cases under the Equal Protection Clause 
teach: (l) that when a governmental policy relies --as the policy

8



challenged here plainly did -- on an express racial classification, 
strict judicial scrutiny is triggered, with no further need for 
inquiry into discriminatory purpose or effect, see Personnel Adm'r 
of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979); Orange Lake 
Associates Inc. v. Kirkpatrick, 21 F.3d 1214, 1226-27 (2d Cir. 
1994) ; and (2) that governmental action does not escape scrutiny -- 
or invalidation -- solely because it can be shown that "similarly 
situated" minority and non-minority individuals are subject to the 
same (race-based) treatment, see, e.g., Powers v. Ohio, 499 U.S. 
400 (1991); Loving v. Virginia, 388 U.S. 1 (1967); Anderson v. 
Martin, 375 U.S. 399 (1964).

The decision below cannot be squared with these core 
principles, nor is it even a proper application of the distinct 
mode of Equal Protection analysis the district court (erroneously) 
presumed should govern -- i.e., that which applies to challenges to 
facially neutral (but allegedly racially discriminatory) government 
action. While many cases challenging facially neutral government 
action do entail identification of a "similarly situated" 
nondisadvantaged class, to insist that such an identification is an 
indispensable element of any Equal Protection claim is to confuse 
a constitutional violation with the ways in which that violation 
may be proven. The Supreme Court has left no doubt, however, that 
" [p]urposeful discrimination is 'the condition that offends the 
Constitution,'" Washington v. Seattle School List. No. 1 , 458 
U.S. 457, 484 (1982) (quoting Swann v. Charlotte-Mecklenburg Bd. of 
Educ. , 402 U.S. 1, 16 (1971)), and that invidious purpose may be

9



proved in myriad ways, Arlington Heights v. Metropolitan Housing 
Dev. Corp., 429 U.S. 252, 266-68 (1977). See generally Miller v. 
Johnson, 132 L. Ed. 2d 762, 777-78 (1995) (clarifying that odd 
district shape is neither "a necessary element" nor a "threshold 
requirement" -- but "rather . . . persuasive circumstantial 
evidence" of an Equal Protection violation in legislative 
apportionment cases).

Were the reasoning of the decision below to prevail, by 
contrast, racially motivated governmental action that is 
unprecedented or sui generis would be wholly immune from Equal 
Protection scrutiny -- even when a plaintiff could adduce direct 
evidence of discriminatory intent. Such a legal regime would be 
constitutionally intolerable, and it would be contrary to the 
practice, see City of Richmond v. United States, 422 U.S. 358 
(1975), and express teaching, see Arlington Heights, 429 U.S. at 
266 n .14, of the Supreme Court.

Finally, the decision below is also at odds with a substantial 
body of established law that bridges the Fourth and Fourteenth 
Amendments, governing the role that racial classifications 
may constitutionally play in governmental decisions and the 
standards for reviewing race-conscious action. Although 
consideration of race is not treated as illegitimate per se, see 
Adarand v. Pena, 132 L. Ed. 2d 158 (1995) (Fourteenth Amendment), 
Shaw v. Reno, 125 L. Ed. 2d 511, 525 (1993) (same); United States 
v. Brignoni-Ponce, 422 U.S. 873 (1975) (Fourth Amendment), it is 
established that race "standing alone," id. at 887, cannot supply

10



the "reasonable suspicion" that the Fourth Amendment requires to 
justify even the minimal intrusion entailed by an investigative 
stop, United States v. Ceballos, 684 F.2d 177, 186 (2d Cir. 1981), 
just as it has been held that peculiarly close Equal Protection 
scrutiny is required when race is the "sole criterion" -- rather 
than one of many -- in other governmental decisions. See Regents 
of University of California v. Bakke, 438 U.S. 265, 317 (1978) 
(Opinion of Powell, J.); see also United States v. Travis, 62 F.3d 
170, 173 (6th Cir. 1995) (consensual searches "initiated solely 
based on racial considerations" may violate Equal Protection 
Clause) (emphasis supplied).

The reasons for the skepticism -- expressed in a consistent 
line .of Fourth Amendment jurisprudence -- about the use of race in 
law enforcement mirror those articulated in the Equal Protection 
setting -- i.e., that race is an untrustworthy proxy for individual 
characteristics and one whose use risks serious societal and 
individual harm. Each deficiency is implicated to a substantial 
degree in this case.12 It would simply be unacceptable to apply 
to this case involving racial discrimination against African 
Americans a standard of judicial review less vigilant than the one 
that the Supreme Court has held in "reverse-discrimination" cases 
governs benign racial classifications fashioned to assist African

12Here, if police interrogated only 200 African-American men 
(a conservative estimate), the fact remains that each individual 
was accosted -- and treated as if he were a suspect -- despite an 
objective, 99.5% (100% - 1/200) certainty that he was not involved 
in the crime under investigation. It is not easy to imagine 
another characteristic having so little probative value and so 
great an effect on police behavior.

11



Americans and other minorities counter the effects of past and 
present discrimination. See Adarand, 132 L. Ed. 2d at 180
(emphasizing need for "consistency" in Equal Protection
adjudication); Miller, 132 L. Ed. 2d at 790 (O'Connor, J., 
concurring) (stressing that "the driving force behind the adoption 
of the Fourteenth Amendment was. the desire to end legal 
discrimination against blacks").

ARGUMENT13
I . The Decision Below Rests on a Basic Misapprehension 
of Equal Protection Law: Express Racial Classifications

Always Require Close Judicial Scrutiny
By its singular focus on the existence vel non of a "similarly 

situated" class of nonminority citizens, the decision below strayed 
fatefully from the Equal Protection principles that should control 
the analysis (and ultimate disposition) of this case. The primary 
error of the decision below is its failure to acknowledge the 
existence of three analytically distinct claims under the Equal 
Protection Clause: (1) a claim that governmental action

“Chiefly for the reasons stated in the Brief for Plaintiffs- 
Appellees-Cross-Appellants Brown, et al. , it is clear that the 
dismissal of the Fourteenth Amendment and § 1981 claims are 
properly before this Court. The State defendants have expressly 
appealed from the lower court decision denying them qualified 
immunity on these claims, see Br. of Defendant-Appellants at 38-42, 
and they themselves acknowledge the rule that "a necessary 
concomitant to the determination of whether the constitutional 
right asserted by a plaintiff is 'clearly established' at the time 
the defendant acted is the determination of whether the plaintiff 
has asserted a violation of a constitutional right at all " 
Siegert v. Gilley, 500 U.S. 226, 232 (1991). That question, of 
course, is "inextricably intertwined," see Kaluczky v. City of 
White Plains, 57 F.3d 202, 206-07 (2d Cir. 1995), with the 
determination whether plaintiffs' (identical) allegations against 
the City defendants state a claim upon which relief can be granted. 
See also Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir. 1995) .

12



unjustifiably incorporates a racial classification; (2) the quite 
different assertion that governmental action race-neutral on its 
face was, in fact, invidiously motivated; and (3) the claim that a 
governmental action, though not based on a suspect classification, 
is nonetheless invalid as unrelated to a legitimate governmental 
interest, see City of Cleburne v. Cleburne Living Ctr., Inc., 473 
U.S. 432 (1985). See generally Orange Lake Associates, Inc. v. 
Kirkpatrick, 21 F.3d 1214, 1226-27 (2d Cir. 1994) (discussing 
standards of judicial review for these different claims).14

These claims implicate fundamentally different regimes of 
Equal Protection analysis, requiring different modes of proof. The 
second category requires a plaintiff to show the presence of 
"purposeful discrimination," through "such circumstantial and 
direct evidence of intent as may be available," Arlington Heights, 
429 U.S. at 266, -- a category that includes, but is not limited 
to, evidence, like that so avidly sought by the court below, of an 
actual "similarly situated," yet differently treated, class, see 
infra. However, an explicit racial classification is ''immediately 
suspect," Shaw, 125 L. Ed. 2d at 526 (emphasis supplied), 
triggering "detailed examination, both as to ends and as to means,"

14In fact, Equal Protection jurisprudence acknowledges still 
another "rare," Arlington Heights, 429 U.S. at 266, category, 
between the first and second: cases in which a "neutral" 
classification is plainly a "pretext" for an impermissible one, 
e.g., Guinn v. United States, 238 U.S. 347 (1915) (grandfather 
clause voting requirement), or where its impact is so "stark" as to 
be "unexplainable on grounds other than race." Arlington Heights, 
429 U.S. at 266. Such hybrids are treated as equivalent to express 
racial classifications and are subject to immediate, strict 
scrutiny, see Feeney, 442 U.S. at 272.

13



Adarand, 132 L. Ed. 2d at 188. Such a classification may be 
invalidated without any allegation of impermissible motive and may 
be upheld only when shown to be narrowly tailored to serve a 
compelling governmental interest. Shaw, 125 L. Ed. 2d at 525-26.

This highly "skeptical" approach to express racial 
classifications itself rests on a basic principle of Equal 
Protection jurisprudence: that the Fourteenth Amendment not only
guarantees equal treatment by the government, it also secures a 
right to be treated as an individual -- and not "simply [as a] 
component[] of a racial . . . class" Miller, 132 L. Ed. 2d at 776
(internal quotation marks omitted); see generally Shelley v. 
Kraemer, 334 U.S. 1, 22 (1948) (the "rights created by the first
section of the Fourteenth Amendment are . . . guaranteed to the
individual"). This requirement, the Supreme Court recently 
affirmed, is "at the heart of the Constitution's guarantee of equal 
protection," Miller, 132 L. Ed. 2d at 776, and its claimed 
violation is "analytically distinct," Shaw, 125 L. Ed. 2d at 532, 
from any assertion that "similarly situated" members of one race 
are being treated better -- or worse -- than any other. Accord 
Croson, 488 U.S. at 493 (Fourteenth Amendment's promise of "equal 
dignity and respect" is always "implicated by a rigid rule erecting 
race as the sole criterion in an aspect of public decisionmaking") ; 
Bakke, 43 8 U.S. at 299 (Powell, J.) (when a governmental act 
"touch[es] upon an individual's race or ethnic background, he is 
entitled to a judicial determination that the burden he is asked to 
bear on that basis is precisely tailored to serve a compelling

14



governmental interest").
These precepts -- wholly neglected in the decisions of the 

court below -- yield an important corollary, bearing directly on 
this case: race-based governmental action does not become
constitutionally impregnable solely "because members of all races 
are subject to like treatment." Powers v. Ohio, 499 U.S. 400, 410 
(1990).15 Thus, though the court below was quite right to believe 
Equal Protection would be denied by a statute (or policy) 
authorizing police to accost all black men whenever a violent crime 
is alleged to have been committed by a black man (but precluding 
similar treatment of whites when a white is the suspect), it went 
quite wrong in assuming that a statute providing for wholesale, 
race-based suspicion on an "even-handed" basis would raise no 
serious constitutional difficulty. This notion, that the 
constitutionality of race-based treatment of innocent African- 
American individuals could be salvaged if innocent whites were also 
subject to race-based treatment, "has no place in . modern
equal protection jurisprudence," Powers, 499 U.S. at 410.16

15In Powers, the Court refused to exempt from Equal Protection 
scrutiny race-based peremptory challenges, despite a recognition 
that black and white venirepersons would both be subjected to race- 
based treatment. Similarly, in Shaw v. Reno, the majority squarely 
rejected the argument, pressed vigorously in dissent, that Equal 
Protection harm is limited to cases where one racial group's voting 
power is diluted (i.e., given less weight than the votes of 
similarly situated members of another group), explaining that 
"classifying citizens by race . . . threatens special harms that 
are not present in our vote-dilution cases. It therefore warrants 
different analysis." Shaw, 125 L. Ed. 2d at 530.

16See also Anderson v. Martin, 375 U.S. 399, 403-04 (1964) 
(refusing to accept that statute mandating that candidates' race be 
printed on the ballot was "nondiscriminatory" simply "because . .

15



There is no basis in logic -- and no support in the case law 
-- for requiring proof regarding "similarly situated" individuals 
when a racial classification (or governmental action "unexplainable 
in terms other than race") is alleged. On the contrary, when such 
a classification is complained of, the governmental defendant 
"immediately," Shaw, 125 L. Ed. 2d at 526, must come forward with 
a justification for the race-based action. The disposition of Hall 
v. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978) , is 
instructive: there, the Third Circuit reinstated a § 1981 
complaint challenging a police notice that banks should photograph 
"suspicious looking black persons," with no suggestion that the 
policy's legality would depend on whether or to what extent non­
blacks committed bank robberies. Accord United States v. Travis, 
62 F.3d 170, 174 (6th Cir. 1995) ("Once [a criminal] defendant has 
produced some factual or statistical evidence, the officers must 
then produce evidence that contradicts defendant's claim that they 
acted solely on racial considerations, or identify a compelling 
interest for the race-based interviews") ; cf. also United States v.

it applie[d] equally to Negro and white"); Loving v. Virginia, 
388 U.S. 1, 8 (1967) (rejecting State's contention "that, because 
its miscegenation statutes punish equally both the white and the 
Negro participants in an interracial marriage, these statutes, 
despite their reliance on racial classifications, do not constitute 
an invidious discrimination").

On the district court's reasoning, a policy requiring police 
to question every white or black person who is seen in a 
neighborhood predominately inhabited by "other-race" individuals 
not only would be constitutionally untroublesome -- it would be 
immune from challenge. But cf. People v. Bower, 24 Cal. 3d 638, 597 
P.2d 115, 119 (1979) ("the fact that appellant was a white man 
[seen by an officer in a predominantly black neighborhood] could 
raise no reasonable suspicion of crime").

16



Laymon, 730 F. Supp. 332, 339 (D. Colo. 1990) (Fourth and
Fourteenth Amendments violated when "irrefutable evidence" -- which 
did not include rates at which white and minority drivers commit 
traffic violations -- showed officer made traffic stops "primarily 
based on out-of-state license plates and the driver's race or 
ethnicity").

II. Identification of a Similarly Situated,
But Differently Treated, Nonminority Class Is Merely 
One Way Among Many of Proving Racial Discrimination, 

in Violation of the Equal Protection Clause
Moreover, even if one accepted the district court's erroneous 

disregard for the distinction between (inherently suspect) express 
racial classifications and facially "neutral" -- but allegedly 
discriminatory -- governmental action, the decision below could not 
be upheld even as an application of the latter, more common mode of 
Equal Protection inquiry. The second crucial flaw in the district 
court's Equal Protection analysis is its confusion of what is 
sufficient to make out a claim of discrimination under the Equal 
Protection Clause with what is necessary, although a race-neutral 
policy of police detention and interrogation might be shown to 
violate the Equal Protection Clause by proof that it "bears more 
heavily" on African Americans than on whites, Washington v. Davis, 
426 U.S. 229, 242 (1976), the Constitution does not insist that a
denial of Equal Protection must be shown that way. Instead, the 
Supreme Court has taught that " [P]urposeful discrimination is 'the

17



condition that offends the Constitution,'"17 Seattle School Dist., 
458 U.S. at 484, cautioning that " [i] t is the presumed racial 
purpose of . . . state action, not its stark manifestation, that 
[is] the constitutional violation." Miller, 132 L. Ed. 2d at 778; 
see also id. at 111 (clarifying that odd district shape is neither 
"a necessary element" nor a "threshold requirement" -- but rather 
"may be persuasive circumstantial evidence" of an Equal Protection 
violation in apportionment).

In Washington v. Davis, 426 U.S. at 242, the Court, while 
acknowledging that impact evidence of the sort sought by the 
district court in this case "is not irrelevant," id., to the 
ultimate constitutional question, held that it is not the "sole 
touchstone of an invidious discrimination," id., either. See 
Orange Lake Associates, Inc., 21 F.3d at 1226-27 (applying Davis) . 
And in Arlington Heights, the Court undertook to canvas some of the 
other kinds of evidence that might bear on the Equal Protection 
inquiry. These included:

The historical background of the decision . . . , particularly 
if it reveals a series of official actions taken for invidious 
purposes. . . . The specific sequence of events leading up to 
the challenged decision [,] . . . [d]epartures from the normal 
procedural sequence [,] . . . [s]ubstantive departures [,] .
[t]he legislative or administrative history . . . , especially

It is important to stress that while "discriminatory purpose" 
is, in the absence of an express classification, a prerequisite for 
an Equal Protection claim, antipathy is not. See City of Los 
Angeles v. Garza, 918 F.2d 763, 778 (9th Cir. 1990) (Kozinski, J., 
concurring). Accord Bray v. Alexandria Women's Health Clinic, 122 
L. Ed. 2d 34, 46 (1993) ("animus" required by 42 U.S.C. § 1985 does 
not imply "malicious [] motivat[ion]," only "a purpose that focuses 
upon women by reason of their sex") (emphasis omitted).

18



where there are contemporary statements by members of the
decisionmaking body, minutes of its meetings, or reports.

429 U.S. at 267-68. Even this catalogue, however, the Court took 
care to underscore, did not "purport [] to be [an] exhaustive 
[summary of the] subjects of proper inquiry in determining whether 
racially discriminatory intent existed." Id. at 268. See also 
Miller, 132 L. Ed. 2d at 779 (Equal Protection violation is made 
out in apportionment case "either through circumstantial evidence 
. . .  or through more direct evidence going to purpose") (emphasis 
supplied).

The recognized need for flexibility in proof of discrimination 
has been illustrated in the vast case law pertaining to violations 
of the Equal Protection Clause and other laws forbidding 
discrimination on the basis of a suspect classification. Arlington 
Heights itself gave no indication that plaintiffs' claim should 
stand or fall depending whether a zoning variance similar to the 
one denied in that case had ever been granted under "similar" 
circumstances, and in Yusef v. Vassar College, 35 F.3d 709, 715 (2d 
Cir. 1994), this Court reinstated a complaint alleging gender 
discrimination in violation of Title IX, based on the male 
plaintiff's allegations that: (1) every man accused of sexual
harassment had been found culpable by a college disciplinary 
tribunal; and (2) the tribunal's proceedings were marred by 
irregularities. Nowhere did the Court suggest that the claim was 
doomed for failure to allege that "similarly situated" females were 
escaping similar punishment or that "a group of similarly situated

19



non-[males] even exist[ed] ."10 Employment discrimination cases 
universally recognize that regardless whether there is 
circumstantial evidence of discrimination such as better treatment 
of similarly situated non-minority employees, liability can always 
be established by "direct evidence" of a discriminatory 
classification. See, e.g., Talley v. Bravo Pitino Restaurant, 
Ltd., 61 F.3d 1241, 1246-48 (6th Cir. 1995); Trans World Airlines, 
Inc. v. Thurston, 469 U.S. Ill, 121-22 (1985) . Cf. U.S. Postal 
Service v. Aikens, 460 U.S. 711, 713 & n.3 (1983) (in Title VII 
case, ultimate fact of "discrimination vel non" may be proved "by 
direct or circumstantial evidence").* 19

A rule mandating identification of a "similarly situated," 
differently treated, class in every Equal Protection case, 
moreover, would have the constitutionally intolerable effect of 
immunizing from judicial scrutiny any governmental action that is 
unique or without precedent. On the rationale of the decision 
below, a complaint challenging internment of Japanese-Americans 
might well founder for a plaintiff's inability to identify a

Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988) (en banc)
presented a very different factual scenario. There, the 
plaintiffs' claims of race-based and disparate treatment were 
undermined by their own complaint, which suggested that some 
students were disciplined for reasons not prohibited by § 1981 and 
that non-minority individuals -- certain of the plaintiffs -- were 
given precisely the same punishment for the same offense, 
foreclosing any claim that a racial classification had been employed. Id. at 572.

19In the employment discrimination setting, courts have 
expressly rejected the suggestion that a plaintiff's failure to 
allege that she was "as or more qualified" than the person hired 
warrants granting a motion to dismiss. See Mitchell v. Baldridqe 
759 F .2d 80 (D.C. Cir. 1985) (R.B. Ginsburg, J.).

20



national emergency comparable to World War II,20 and a challenge
to a one-time municipal annexation would similarly founder for
failure to identify a sufficiently "comparable" move, but see City
of Richmond v. United States, 422 U.S. 358, 378 (1975) ("An
official action, whether an annexation or otherwise, taken for the
purpose of discriminating against Negroes on account of their race
has no legitimacy at all under our Constitution") . Indeed, the
Arlington Heights decision recognized as much:

[A] consistent pattern of official racial discrimination is 
[not] a necessary predicate to a violation of the Equal 
Protection Clause. A single invidiously discriminatory 
governmental act . . . would not necessarily be immunized by
the absence of such discrimination in the making of other 
comparable decisions.

429 U.S. at 266 n.14.
As the foregoing makes clear, the concern of the Equal 

Protection Clause extends not only to whether a similarly situated 
class has been treated differently in the past -- i.e., as a matter 
of historical fact -- but also to whether the government would have 
treated the plaintiff differently had he not been a member of the 
racial minority. (Even then, of course, "even-handed" but unduly 
race-based treatment would be unconstitutional, see supra page 15

20But cf. Adarand, 132 L. Ed 2d at 188 (emphasizing that 
constitutional scrutiny in Korematsu v. United States, 323 U.S. 214 
(1944) , was insufficiently aggressive) . Even an allegation of 
failure to intern German-Americans might not save the complaint, as 
a court could decide, reasoning along the lines of the district 
court in this case, that the acts of espionage attributed to (the 
few disloyal) German- or Italian-Americans were not as serious as 
were the crimes blamed on (the few disloyal) Japanese-Americans. 
Dismissal on that basis (like the dismissal decision below) would 
treat as irrelevant: (1) whether the decision was motivated by 
animus, and (2) whether the race-based internment of all was a 
permissible response to the disloyalties of a few individuals.

21



(discussing Powers v. Ohio), but see Samaad v. City of Dallas, 940 
F.2d 925 (5th Cir. 1991) .21) Although such a showing is typically 
more difficult to make out when there is no historical record 
making clear that treatment was race-based -- and "conclusory 
allegations" of animus alone are not enough -- there is no sanction 
in the Fourteenth Amendment or the .Federal Rules for barring the 
court-room door to plaintiffs making other sorts of allegations -- 
involving prior discriminatory conduct, direct admissions, or 
telling departures from ordinary practices -- that would support an

2'In Samaad, which was cited by the court below, the Fifth 
Circuit held that plaintiffs -- who objected to the operation of a 
motor race track in their (predominantly black) neighborhood, would 
not show an Equal Protection violation even if they proved that 
(1) governmental actors had "discriminatory animus," 940 F.2d at 
942, and (2) government officials would not have allowed 
ob]ectionably loud races had the neighborhood been mostly white. 
The Fifth Circuit's conclusion, that "such conduct, however 
offensive, would not violate the Equal Protection Clause," id. at 
541, cannot be reconciled with common sense -- or with the 
controlling Supreme Court precedent -- discussed supra.

The inquiry into what officials "would have" done is hardly as 
exotic as the Fifth Circuit's opinion in Samaad might suggest: to
the contrary, the "hypothetical" question whether a defendant would 
have taken the same action absent discriminatory motive is a staple 
of Fourteenth Amendment analysis. See Arlington Heights, 429 U.S 
at 270 & n .20.

Not only is the analytical framework adopted by the court 
below indistinguishable from the sort of "heightened pleading 
standard" for civil rights actions that the Supreme Court held, in 
Leatherman v. Tarrant County, 122 L. Ed 2d 517 (1993), federal
courts are without authority to impose, but, as a substantive 
matter, its criteria are poor choices for screening out 
nonmerit or ious claims. See Sieger t v. Gilley,, 500 U.S. at 236 
(Kennedy, J., concurring) (pleading standard is wrong to demand 
direct, as opposed to circumstantial, evidence) . That said, a fair 
reading of the complaint in this case (not to mention the generous 
one that Rule 12(b) (6) requires) suggests that plaintiffs here have 
cleared the unauthorized, unduly high, and arbitrary threshold the 
district court erected.

22



inference of discriminatory treatment.22
The fact-pattern of this case should itself have sufficed to 

suggest the defectiveness of the district court's approach: either 
(1) Oneonta whites never have, in fact, committed violent crimes 
--in which case, under the court's rationale, the Equal Protection 
Clause imposes no limit whatsoever on the action that may be taken 
against law-abiding black citizens (until a white does commit such 
a crime) -- or (2) whites have committed violent crimes, but police 
simply would not record a description if the only information 
available were that the suspect was a "young white male," in which 
case matters would be even worse. Then, a practice that denied 
Equal Protection (i.e., similar treatment to similarly situated 
individuals) on even the narrow understanding of the court below 
would persist in perpetuity, without any opportunity for those 
mistreated even to state an Equal Protection claim.

The more comprehensive Equal Protection inquiry that precedent 
requires, by contrast, demands a less grudging look at plaintiffs' 
allegations and the context in which they arise. First, they have

22In this case, for example, it is apparent that the police 
officers flouted the duty, imposed by the New York Constitution, 
not to approach innocent individuals absent a "founded suspicion of 
individual involvement in criminal activity," see People v. 
Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619 (1992). This deviation 
from a state-law norm when black individuals are involved is 
significant not because the Equal Protection Clause "incorporates" 
state law in any sense, but rather because it is probative of race- 
based treatment. This precise point was made by Justice O'Connor 
in Miller v. Johnson, where she emphasized that compactness and a 
state's other "traditional districting principles," though plainly 
not compelled by the federal Constitution, are nonetheless relevant 
(when departed from) in Equal Protection analysis. See 132 L Ed 2d at 790.

23



alleged that there is no precedent in Oneonta for a whites-only 
police sweep, meaning that, to the extent that there has been a 
similar offense committed by a white man (but not reported as 
such), their claim would satisfy the supercharged notion of what 
Equal Protection requires that was adopted by the court below. See 
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (complaint should 
be dismissed "only if it is clear that no relief could be granted 
under any set of facts that could be proved consistent with the 
allegations") . Even, however, if Oneonta white men actually are a 
singularly non-violent lot, the absence of any known precedent, in 
jurisdictions where white people are known to commit violent 
crimes, for such a "sweep" casts some doubt on the possibility that 
Oneonta stands alone in adhering to an "even-handed" race-based 
sweep policy. Finally some significance should attach to the fact 
that defendants have never represented (for good reason) that they 
do, in fact, follow such a policy, i.e., that they will, in the 
future, respond to a "young white male" violent crime report in the 
same manner they reacted here, cf. Arlington Heights, 429 U.S. at 
270 (discussing burden on defendant to show that it would have 
taken steps absent discrimination) . In fact, defendants' policy 
for future white suspects (or, more precisely, for innocent white 
people when a white suspect is sought) almost surely is the one 
that the Fourth and Fourteenth Amendments counsel, see infra: no
race-based sweeps. On any understanding, Equal Protection should

24



entitle law-abiding African Americans to nothing less.23
III. Requiring Identification of a "Similarly Situated" Class 

Is Plainly Inappropriate in Cases Involving Racial Discrimination
The third Equal Protection error of the decision below was its

failure to acknowledge the fundamental divide in Equal Protection

23The Supreme Court's recent decision in United States v. 
Armstrong, No. 95-157, 64 U.S.L.W. 4305 (May 13, 1996), cannot be 
read as supporting the decision below. Armstrong dealt with the 
issue of when a criminal defendant claiming "selective prosecution" 
is entitled to discovery against the government, and the Court's 
opinion heavily stresses this special context -- in which a 
"presumption that a prosecutor has not violated equal protection," 
can be overcome only by "clear evidence to the contrary." 64 
U.S.L.W. at 4308. This "hestitan[ce] to examine the decision 
whether to prosecute," the Court has explained, is rooted in (1) 
separation of powers concerns; (2) the "relative competence of 
prosecutors and courts" to determine whether a case should be 
brought; and (3) the societal costs of proceedings collateral to 
criminal prosecutions (including the possibility that a guilty -- 
if unfairly selected -- criminal will be let free) . Id. These 
concerns are totally absent in the instant case, which involves 
actions that, unlike prosecutions, do not require independent 
determinations of "probable cause" and involve officials who are 
not, like prosecutors, sworn officers of the court, subject to 
sanction for unethical conduct. Compare Imbler v. Pachtman, 424 
U.S. 409 (1976) (prosecutors enjoy absolute immunity), with Malley 
v. Briggs, 475 U.S. 335 (1986) (rejecting claim that police 
officers should enjoy absolute, rather than qualified, immunity in certain situations).

The Armstrong Court in no way suggested that it was departing 
from settled rules for analyzing practices that rely on express 
racial classifications, and the opinion explicitly acknowledges 
that a different rule might apply in cases (like this one) 
"involving direct . . .[evidence] of discriminatory purpose." Id. 
Finally, the Court noted that the very term "selective prosecution" 
implies that a selection has taken place," meaning that a person 
making such an allegation is, of necessity, asserting that 
similarly situated individuals exist. Whatever showing might 
fairly be required of such a claimant -- in the context of a 
discovery request collateral to his own prosecution -- has little, 
if any, relevance to other Equal Protection claims, where 
"selectivity" is not asserted (or even relevant), see, e.g., 
Anderson v. Martin, 375 U.S. 399 (1964). Cf. Gehl Corp. v. Koby, 
63 F.3d 1528, 1539 (10th Cir. 1995) (summary judgment appropriate 
on selective prosecution claim, when probable cause existed to 
indict plaintiff but not other fundraisers).

25



doctrine between claims of discrimination on the basis of race and 
other "suspect classifications," and other non-"suspect" bases for 
disparate treatment. See, e.g., Williamson v. Lee Optical, 348 
U.S. 483 (1955)(upholding different treatment of opticians and 
optometrists). The few authorities cited below in support of a 
"similarly situated" requirement fall, for the most part, into this 
latter category, but see supra note 21 (discussing Samaad. v. City 
of Dallas, 940 F.2d 925 (5th Cir. 1991)) . Yale Auto Parts v. 
Johnson, 758 F.2d 54 (2d Cir. 1985), for example, involved a
business owner's challenge to a denial of his application for a 
zoning variance; the plaintiff made no claim of race or other 
class-based discrimination, but rather complained that the decision 
had been arbitrary and politically motivated. Noting that 
plaintiffs had not alleged "discriminatory purpose or conduct," 
i.e., that city officials "had intentionally treated their 
application differently from other similar applications," id. at 
61, the Court upheld dismissal under Rule 12(b) (6) . Likewise, the 
plaintiffs in Sector Enterprises, state government employees whose 
opportunities for outside employment were restricted by conflict- 
of- interest policies, appear to have alleged no basis (suspect or 
not) -- apart from a generic assertion of "bad faith" -- for their 
allegedly unfair treatment. Sector Enters., Inc. v. DiPalermo, 779 
F. Supp. 236, 247 (N.D.N.Y. 1991). See generally Orange Lake

Associates, 21 F.3d at 1227 ("To establish a claim of intentional 
discrimination under [a] classification [subject to rational basis 
review, plaintiff] must allege that similarly situated individuals

26



have been treated differently").
To claim that a governmental action "discriminates" in 

violation of the Equal Protection Clause on a basis other than 
race, ethnicity, religion or another basis held constitutionally 
suspect is a daunting prospect. Such actions arrive in court 
"bearing a strong presumption of validity," FCC v. Beach 
Communications, Inc., 124 L. Ed. 2d 211, 222 (1993), and to 
succeed, a plaintiff challenging differential treatment not alleged 
to be grounded on a suspect classification must "negative every 
conceivable basis" which might support it, id. (quoting Lehnhausen 
v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Thus, 
while courts recognize the "inevitab [ility] . . . that some persons 
who have an almost equally strong claim to favored treatment [will] 
be placed on different sides of the line," principles of judicial 
restraint require that "initial discretion" to decide whether 
individuals are "'different' . . .  or 'the same' resides" .
[with] the States," Plylerv. Doe, 457 U.S. 202, 216 (1982), and -- 
unless an "invidious basis" for different treatment is claimed -- 
such judgments are "virtually unreviewable," Beach Communications, 
124 L. Ed. 2d at 223.24 Precisely because courts must be so 
deferential to governmental classifications -- and because the

24See generally Plyler, 457 U.S. at 216 ("A legislature must 
have substantial latitude to establish classifications that roughly 
approximate the nature of the problem perceived, that accommodate 
competing concerns both public and private, and that account for 
limitations on the practical ability of the State to remedy every 
ill"); see also U.S. Railroad Board v. Fritz, 457 U.S. 202, 216 
(1982) ( [T]he fact [that] the line might have been drawn 
differently at some points is a matter for legislative, rather than judicial, consideration").

27



plaintiff's burden of disproving all conceivable grounds for his 
treatment is so weighty -- it is not inappropriate, in the typical 
cases, to demand that the plaintiff identify a similarly --or even 
nearly identically -- situated class or individual.25 But even if 
that requirement is properly imposed at the pleading stage in such 
a case, c f . Orange Lake Assocs., it plainly has no place there when 
the plaintiff complains of unequally -- or unduly -- race-based 
treatment.

But even were the Court to read its cases as requiring 
identification of a "similar situation," finally, any such 
prerequisite was satisfied here. Although the district court 
referred to plaintiffs as "suspects," the class of individuals to 
whom they are similarly situated for Equal Protection purposes are 
not white "suspects," but rather individual white citizens, bearing 
no objective indicia of criminality, who happen to walk the public 
streets of Oneonta in the days after a crime had been committed. 
Of course, defendants might yet be able to escape liability if the 
court were persuaded that dissimilar treatment meted out to these 
individuals was warranted, because: (a) a crime had recently

‘’The suggestion below that "bad motive is not enough" to prove 
an Equal Protection violation is demonstrably false when race-base 
treatment is alleged, and is of uncertain validity even in cases 
involving other, non-suspect classifications. There is authority 
suggesting that the Equal Protection duty of impartial governance 
can be breached by an extreme instance of individual oppression, 
see Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), and that "a 
bare desire to harm a politically unpopular group," Department of 
Agriculture v. Moreno, 413 U.S. 528, 534 (1973), cannot supply a 
"legitimate governmental interest," even under deferential 
"rational basis review," accord Romer v. Evans, No. 94-1039 1996 
U.S. LEXIS 3245 (May 20, 1996).

28



(allegedly) been committed by an African American; (b) the crime 
was sufficiently more serious than others to explain disparities in 
police response; and (c) the government's interests were 
sufficiently weighty (and its race-neutral alternatives 
sufficiently unappetizing) to justify (a) resort to race-based 
measures generally, and (b) the sweeping measures actually adopted. 
But such considerations would simply go to liability -- not to 
whether plaintiffs' allegations state a claim for relief.

IV. The Complaint Alleges Governmental Conduct Violative of 
Rights Clearly Established Under the Fourth 

and Fourteenth Amendments
Although the actions here are challenged as violating two 

distinct constitutional protections -- the Fourteenth Amendment 
Equal, Protection guarantee and the freedom from unwarranted 
government intrusions on liberty secured by the Fourth Amendment, 
this case arises at a point of substantial doctrinal convergence.26 
With respect to the role that race permissibly may play in 
government decision-making, the case law under both Amendments is 
consistent: while the government is not denied all power to take

26It is not at all unusual, of course, for governmental conduct 
to violate two distinct constitutional provisions. Loving v. 
Virginia, 388 U.S. 1 (1967), in which the Virginia anti­
miscegenation law was invalidated both as a denial of Equal 
Protection and as an infringement of the Due Process right to 
marry, is a paradigmatic example. Cf. McFarland v. Smith, 611 F.2d 
414, 416 (2d Cir. 1979) ("when race prejudice is injected into a
criminal trial, the due process and equal protection clauses 
overlap or at least meet") (citation omitted). In this case, the 
Fourth Amendment has been interpreted as regulating only the 
government's conduct toward those individuals whose liberty of 
movement is sufficiently restrained to constitute a "seizure." 
Plaintiffs in this case who are found to have been seized are 
entitled to relief under both the Equal Protection and the Fourth Amendment claims.

29



race into account, Brignoni-Ponce, 422 U.S. at 887; Adarand, 132 L. 
ed. 2d 158 (1995); McFarland v. Smith, 611 F.2d 414, 417 (2d Cir. 
1979) (not "every race-conscious argument [by an attorney] is 
impermissible"), it must do so carefully and within definite, 
judicially enforceable bounds. Thus, a person's race "standing 
alone," Brignoni-Ponce, 422 U.S. at 887, may never supply the 
government with the requisite individual suspicion the Fourth 
Amendment requires for even the "minimal intrusion" entailed by an 
investigatory stop, just as a "rigid rule erecting race as the sole 
criterion in an [v other] aspect of public decisionmaking," Croson, 
488 U.S. at 493, will be subject to "detailed judicial inquiry," 
Adarand, 132 L. ed. 2d at 182, with the person affected entitled to 
a "determination that the burden he is asked to bear on that basis 
is precisely tailored to serve a compelling governmental interest," 
Bakke, 438 U.S. at 299 (Powell, J.). See generally United States 
v. Travis, 62 F.3d at 173 ("We hold that consensual searches may 
violate the Equal Protection Clause when they are initiated solely 
based on racial considerations"); United States v. Manuel, 992 F.2d 
272, 275 (10th Cir. 1993) ("selecting persons for consensual 
[police] interviews based solely on race is deserving of strict 
scrutiny"); McFarland, 611 F.2d at 416 (prosecutor's reference to 
race of defendant violated his Fourteenth Amendment rights because 
"race is an impermissible basis for any adverse governmental action 
in the absence of compelling justification"),21

2 Accord, e.g., United States v. Lopez-Martinez, 25 F.3d 1481, 
1486 (10th Cir. 1994)(Hispanic ancestry of passengers in car near 
border "could not, by itself, create the reasonable suspicion

30



required under the Fourth Amendment"); United States v. Beck, 602 
F.2d 726, 727 (5th Cir. 1979); United States v. Bautista, 684 F.2d 
1286, 1289 (9th Cir. 1982) ("race or color alone is not a 
sufficient basis for making an investigatory stop") ; United States 
v. Williams, 714 F.2d 777, 780 (8th Cir. 1983) ("Police cannot have 
grounds for suspicion based solely on the race of the suspect"); 
United States v. Nicholas, 448 F.2d 622, 624 (8th Cir. 1971) 
("momentary detention of citizen" unsupported by "generalized 
suspicion that any black person driving an auto with out-of-state 
license plates might be engaged in criminal activity"); United 
States v. Laymon, 730 F. Supp. 332, 339 (D. Colo. 1990) .

Of course, racial classifications used by law enforcement 
officials are as subject to strict scrutiny as are any other, see, 
e.g., Manuel, 992 F.2d 272; Travis, 62 F.3d 170; Hall, 570 F.2d 86; 
see also Adarand, 132 L. Ed. 2d at 182 ("courts should take a 
skeptical view of all governmental racial classification") 
(emphasis supplied); McFarland, 611 F.2d at 417 (prosecutor's 
reference to defendant's race "must be justified by a compelling 
state interest"). Indeed, the Court first formulated the "strict 
scrutiny" standard in Korematsu, a case arising from a criminal 
prosecution for violating a military order during time of war.

Equal Protection standards have been held fully applicable in 
contexts that are as or more sensitive, see, e.g., Miller, 132 L. 
Ed. 2d at 779 (recognizing that review of districting legislation 
is "a serious intrusion into the most vital of local functions"); 
Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (overturning race-based 
child custody award, in the face of State's "substantial" interest 
in "granting custody based on the best interests of the child"). 
Nor does the fact that Equal Protection principles are potentially 
under-enforced at other stages of the criminal justice process, see 
e.g., Armstrong, 64 U.S.L.W. at 4307 n.2 (hinting that, where 
racially discriminatory selective prosecution is raised as a 
defense in a criminal proceeding and successfully proven, dismissal 
of indictment still might not be appropriate remedy because might 
result in freeing of culpable individual); United States v. Prandy- 
Binett, 995 F.2d 1069, 1075 (D.C. Cir. 1993) ("the real harm done 
is not fully apparent, because we usually do not hear of the cases 
of the innocent people who are stopped by the police"), argue for 
applying a lesser standard in a civil rights action such as this 
one, where such potential systemic costs are absent.

To acknowledge as much is not to suggest that many 
noncontroversial ways in which race is used in ordinary police 
work: e -9r•/ using race as one factor among many in identifying a 
criminal, could not readily withstand strict judicial scrutiny. 
Rather, the whole "point of strict scrutiny is to differentiate 
between impermissible and permissible governmental uses of race," 
Adarand, 132 L. Ed. 2d at 183; id. at 188 (" [W] e wish to dispel the

31



The four bases the Supreme Court has identified for the rule 
of judicial "skepticism," Adarand, 132 L. Ed. 2d at 179, concerning 
actions based on race "standing alone" are wholly applicable to the 
facts of this case. First, in both the Fourth and the Fourteenth 
Amendment contexts, race has proved to be a minimally reliable 
"proxy," Powers, 499 U.S. at 410, for criminal culpability, 
Brignoni Ponce, 422 U.S. at 886-87; United States v. Ceballos, 684

notion that strict scrutiny is . . .'fatal in fact'") . The 
government's interest "in finding, convicting, and punishing those 
who violate the law," Moran v. Burbine, 475 U.S. 412, 426 (1986), 
presumably rates as "compelling," id.; see also Brown v. Texas, 
443 U.S. 47, 52 (1979), and many such measures are "narrowly 
tailored," i.e., no more reliant on race than necessary. See 
Bautista, 684 F.2d at 1289 ("the police did not stop defendants 
solely because their racial appearance matched the racial 
description of the robbery suspects. . . . Treating racial 
appearance as one factor contributing to the founded suspicion of 
criminal conduct was not inappropriate"); Buffkins v. City of 
Omaha, 922 F.2d 465, 468 (8th Cir. 1992) (holding that stop was 
"nondiscriminatory" when police had received tip that black drug 
courier would arrive on specified flight and plaintiff was only 
black person on flight).

The "narrow tailoring" requirement, however, provides that 
even when police are dealing with very serious crimes, their 
actions must be reviewed for undue reliance on race or unduly 
sweeping race-based measures, see Lankford v. Gelston, 364 F.2d 197 
(4th Cir. 1966) (enjoining anonymous-tip-driven searches in 
African-American community for killers of police officers); United 
States v. Rias, 524 F.2d 118, 121 (5th Cir. 1975) (officer lacked 
adequate suspicion to stop "two black males . . . in a black 
Chevrolet" despite use of similar car in armed robbery two weeks 
earlier) ; Williams v. Alioto, 549 F.2d 136 (9th Cir. 1975) 
(vacating on non-merits grounds district court order enjoining 
race-based dragnet search for mass murderer). As in other 
settings, the narrow tailoring analysis entails inquiry into, inter 
alia, (1) the availability and consideration of race-neutral 
methods, Croson, 488 U.S. at 507; (2) the extent to which race was 
one of many factors relied upon, cf. Johnson v. Transportation 
Agency, 480 U.S. 616, 638 (1987) (Title VII gender case); 
(3) whether the race-based measure remained in place longer than 
needed, e.g., United States v. Paradise, 480 U.S. 149, 178 (1987); 
and (4) its impact on innocent individuals, Wygant v. Jackson Bd' 
of Educ., 476 U.S. 267 (1986).

32



As this caseF.2d 177, 186 (2d Cir. 1981), and other traits.28
vividly illustrates, being an African-American man walking the 
streets of Oneonta, New York is a characteristic shared by a group 
whose members are, in overwhelming numbers, not guilty (or fairly 
suspected) of any criminal activity; estimating conservatively, 
police in this case accosted individuals who, as a matter of 
objective probability, were 99.5% certain (i.e., 100% - 1/(78 +
100) ) not to have been involved in the conduct that precipitated 
the sweep. See generally Reid v. Georgia, 448 U.S. 438, 441 (1980) 
(per curiam) (characteristics invoked in support of seizure 
"describe a very large category of presumably innocent travelers, 
who would be subject [were the Court to find "reasonable 
suspicion"] to virtually random seizures").

Second, and as this case also well illustrates, racial 
classifications are especially prone to misuse, both because their 
probative value is consistently overestimated, see generally Sheri

2&United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976), 
does not indicate otherwise. Martinez-Fuerte reviewed procedures 
used by the U.S. Border Patrol for selecting cars to inspect at 
permanent Border Patrol checkpoints located on certain highways 
near the U.S.-Mexico border. First and foremost, that decision 
hinged on the government's unique and overriding interest in 
maintaining the integrity of our Nation's borders and of our 
immigration laws. 428 U.S. at 552, 556-57. Second, insofar as 
Martinez-Fuerte appeared to sanction a search policy that was based 
in part on national origin, it is further distinguishable since it 
presented the exceedingly rare case where national origin appeared 
in some respects to be a reliable proxy, since persons of Mexican 
ancestry crossing from Mexico into the U.S. are, in fact, far more 
likely than Anglos to be undocumented aliens. Finally, because the 
Court noted that non-racial factors still weighed heavily in the 
Border Patrol's ultimate decisions concerning whom to stop, 428 
U.S. at 563 n .16, any language in the opinion appearing to sanction 
a purely national-origin based search policy was dictum that was 
not necessary to the case's holding.

33



Lynn Johnson, Race & The Decision to Detain a Suspect, 93 Yale L. J. 
214, 237-38 (1983),29 and because they can, operating in
conjunction with private prejudice and bias, skew governmental 
decisionmaking in impermissible ways, see, e.g., Anderson v. 
Martin, 375 U.S. at 402 (1964) ("[B]y directing . . . attention to
the single consideration of race or color, the State indicates that 

. •. race or color is an important -- perhaps paramount -- 
consideration" in an election); McFarland, 611 F.2d at 417 (for a 
prosecutor "to raise the issue of race is to draw the jury's 
attention to a characteristic that the Constitution generally 
commands us to ignore . . . .  Even a reference that is not 
derogatory may carry impermissible connotations or may trigger 
prejudiced responses"); United States v. Patrick, 899 F.2d 169, 172 
(2d Cir. 1990) (Weinstein, J., dissenting) ("It is the intersection 
of expertise with common prejudices that produces a greater 
likelihood of error") (citation omitted).30 The treatment

:9Apart from the harms caused by "accurate" generalizations, 
it has been shown that (a) the police practice of arresting 
inordinate numbers of minority group members has the effect of a 
"self-fulfilling prophecy," making police more confident that 
minority status correlates with criminality, see Note, Developments 
in the Law -- Race and the Criminal Process, 101 Harv . L. Rev. 1472, 
1508-10 (1988), and that (b) police often double-count race -- 
treating it as distinct from other, race-neutral factors (such as 
presence in a high-crime area) that, if isolated, would sap race of 
any predictive value. See United States v. Lopez-Martinez, 25 F.3d 
1481, 1490 (10th Cir. 1994)(McKay, J., dissenting) (the fact that 
defendants were Hispanic "added nothing" to agent's suspicions); 
United States v. Harvey, 16 F.3d 109, 115 (6th Cir. 1994) (Keith,’ 
J., dissenting) (rejecting "erroneous assumption that one's race 
has a direct correlation to drug activity").

30See also Kolender v. Lawson, 461 U.S. 352, 358 (1983) 
(invalidating as unacceptably vague a law providing for arrest of 
"suspicious" individuals who declined police requests to identify

34



complained of here indicates that police treated each as a 
"suspect," notwithstanding the statistically overwhelming 
likelihood of innocence and the apparent complete absence of 
individualized, non-racial indicia of culpability.

Finally, the Supreme Court, in holding that "all" racial 
classifications warrant strict scrutiny, has identified two other 
harms that careless and unjustified racial classification can 
cause. First, the Court has suggested that "racial classifications 
of any sort pose the risk of lasting harm to our society," Shaw, 

125 L. Ed. 2d at 535, because they can "reinforce the belief, held 
by too many for too much of our history, that individuals should be 
judged by the color of their skin," id., and threaten to retard 
"our. society['s] . . . progress as a multiracial democracy," 
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630 (1991). The 
Court has also underscored the "hurt and injury," id. at 631, as to 
the individual that race-based treatment can occasion, harm that is 
independent of and "analytically distinct," Shaw, 125 L. Ed. 2d at 
532, from any claimed infringement of any other constitutional 
right, see id.; Northeast Florida Assoc. Gen'l Contractors v. City 

of Jacksonville, 124 L. Ed. 2d 586 (1993) (denial of opportunity to 
bid on municipal contract); Hall, 570 F.2d at 86 (minimal intrusion 
of being photographed doesn't save policy authorizing race-based

themselves and noting danger of authorizing "a standardless sweep, 
[that] allows policemen, prosecutors, and juries to pursue their 
personal predilections") (quoting Smith v. Goguen, 415 U.S. 566, 
575 (1974) ) . The plaintiff in Kolender was an African-American man 
who had been detained or arrested 15 times while walking in various neighborhoods.

35



photographing of bank customers) ; see generally Powers, 499 U.S. at 
410 ("It is suggested that no particular stigma or dishonor results 
if a prosecutor uses the raw fact of skin color to determine the 
objectivity or qualifications of a juror. We do not believe a 
victim of the classification would endorse this view").

It would be deeply troubling if these premises, that have 
recently been invoked in support of strict Equal Protection 
scrutiny of all governmental actions, including those taken to 
remedy racial discrimination and its effects, see, e.g., Croson 488 
U.S. at 507-08 (even law that serves compelling interest of 
remedying past discrimination must be scrutinized for "narrow[] 
tailor[ing]"), were given less than full effect in this case. In 
fact, to do so would defy the express teaching of the Supreme 
Court, see Adarand, 132 L. Ed. 2d at 179 (emphasizing requirement 
of "consistency" in Equal Protection review); see also Miller, 132 
L. Ed. 2d at 790 (O'Connor, J., concurring) ("Certainly, the [Equal 
Protection] standard does not treat efforts to create majority- 
minority districts less favorably than similar efforts on behalf of 
the other groups. Indeed, the driving force behind the adoption of 
the Fourteenth Amendment was the desire to end legal discrimination 
against blacks").

The relationship between the events giving rise to this 
litigation and the acknowledged "sorry history," Croson 488 U.S. at 
499, and "persisten[t] practice of . . . racial discrimination 
against minority groups in this country," Adarand, 132 L. Ed. 2d at 
188, is neither metaphorical nor indirect. See generally Note,

36



Developments in the Law -- Race and the Criminal Process, 101 Harv . 
L. Rev. 1472 (1988) ; A. Leon Higginbotham, Jr . , In the Matter of Color: Race
and the American Legal Process (1978) . This case represents an 
egregious instance of a problem that remains endemic and 
extensively documented: the exercise of the government's power to
prevent and investigate crime, in a way that seriously and 
discriminatorily erodes the rights of law-abiding African-American 
individuals freely to walk the public streets.31 The harm to the 
individual "victim[s] of the classification," Powers, 499 U.S. at 
410, in these cases is substantial and direct, see Manuel, 992 F.2d

31Judicial opinions have, with striking candor, described 
current seizure practices as "racist," United States v. Taylor, 956 
F.2d 572, 582 (6th Cir. 1992) (en banc) (Keith, J., dissenting), "a
sham," United States v. Prandy-Binett, 995 F.2d 1069, 1075 (D.C.
Cir. 1993) (Edwards, J., dissenting^) , and "fortifying [African- 
Americans'] badge of second-class citizenship," United States v 
Harvey, 16 F.3d 109, 114 (6th Cir. 1994) (Keith, J., dissenting), 
conclusions supported by compelling statistical, id. at 114-15, and 
anecdotal evidence, id. (discussing arrest and jailing of Dr. 
Martin Luther King for traffic violation); Taylor, 956 F.2d at 582- 
83 (discussing suspicionless detention of baseball player Joe Morgan).

In United States v. Thomas, 787 F. Supp. 665 (E.D. Tex. 1992), the court found that:
The training film for the Louisiana State Police Department 
. . explicitly exhorts officers to make traffic stops for the
purpose of narcotics searches based, in part, on the color of 
the driver s skin. The film [describes] . . .  a drug courier 
[as a]: "male[] of foreign nationality, mainly Cubans,
Colombians, Puerto Ricans and other swarthy o u t l a n d e r s .

787 F. Supp. at 676 (emphasis added).
Buffkins v. City of Omaha, 922 F.2d 465 (8th Cir. 1991), 

describes a rare attempt at self-help by an innocent African- 
American woman subjected to an unconstitutional search and seizure. 
Having objected to her detention as racist and unconstitutional, 
the woman used an epithet when the officer told her she was free to 
go and to "have a nice day" -- prompting the officer to arrest her 
for disorderly conduct. Id. at 467.

37



at 275 (comparing effects of race-based suspicion to "injuries and 
stigma" of school segregation) (internal citation omitted); Harvey, 
16 F.3d at 114 (Keith, J., dissenting) ("such disparate treatment 
alienates and ostracizes African-Americans fortifying their badge 
of second-class citizenship"), as is the harm to the body politic. 
Failure to scrutinize closely such claims can "undermine the very 
foundation of our system of justice -- our citizens' confidence in 
it." Georgia v. McCollum, 505 U.S. 42, 49-50 (1992). C f . United 

States ex r e l . Haynes v. McKendrick, 481 F.2d 152, 157 (2nd Cir.
1973) (prosecutor's racial remarks help "further embed the already 
too deep impression in public consciousness that there are two 
standards of justice in the United States, one for whites and the 
other for blacks").

To the extent that plaintiffs in this case were, in fact, 
"seized" within the meaning of the Fourth Amendment,32 the legal

32The decisions below rejecting the Fourth Amendment claims 
relied principally on the maxim that the Fourth Amendment "does not 
proscribe all contact between police and citizens," United States 
v. Hooper, 935 F.2d 484, 490 (2d Cir. 1991) (quoting INS v.
Delgado, 466 U.S. 210, 215 (1984)). That general proposition is
unexceptionable, though it appears plainly to have been misapplied 
by the court below in several instances. For example, the court 
granted summary judgment on the ground that plaintiff Jean Cantave 
was not "seized" when his car was pulled over by a police patrol, 
see Brown I, Joint Appendix at 350-51. But the Supreme Court has

held that "stopping an automobile and detaining its occupants 
constitute a 'seizure' within the meaning of [the Fourth] 
Amendment [] , even though the purpose of the stop is limited and the 
resulting detention quite brief." Delaware v. Prouse, 440 U S 648, 653 (1979) . ' '

Whether or not the Court sees fit to correct those errors in 
this appeal, however, it is imperative that the Court affirm that 
race "standing alone" was an inadequate basis for detaining those 
who ultimately are determined, under a correct application of 
Fourth Amendment principles, to have been "seized."

38



principle that must govern this case is clear: blanket police 
suspicion based on race "standing alone" is constitutionally 
" [un]reasonable" per se. The controlling Equal Protection 
principles are no less clear: the government's actions here 
involved an undeniable racial classification, meaning that 
plaintiffs are "entitled," Bakke, 438 U.S. at 299, 320 -- without 
any further allegation concerning the existence vel non of white 
males who committed violent crimes -- to a "detailed examination," 
Adarand, 132 L. Ed. 2d at 188, of the government's actions, 
including evidence bearing on the motives of the individual actors, 
and the extent to which their conduct was "precisely tailored," 
Bakke, 438 U.S. at 299, to the legitimate government interests. On 
any .reading of the law (and plaintiffs' allegations), 12(b)(6) 
dismissal is wholly inappropriate.

39