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Brown v. City of Oneonta:

Given interest in how Judge Sotomayor has approached cases involving race, the case of Brown v. City of Oneonta is worth a look. The panel opinion (as amended) is at 221 F.3d 329 (2nd Cir. 2000). The opinions respecting the denial of reharing en banc are at 235 F.3d 769 (2d Cir. 2000). Judge Sotomayor was not on the initial panel, but she did join most of Judge Calabresi's opinion dissenting from the denial of rehearing en banc in this interesting case. While this opinion may be less probative than one Judge Sotomayor authored herself, her participation in this case could help shed light on her views of the proper application of the Equal Protection Clause. It is also interesting to compare the rationale for en banc review endorsed by Judges Calabresi and Sotomayor in this case with their arguments for denying en banc review in Ricci v. DeStefano, another potentially divisive case involving race.

The full post including excerpts from the relevant opinions are below the jump.

David M. Nieporent (www):
I liked this little aside from the opinion:
but you just have to put up with racially linked sweeps when victims-perhaps influenced by their own racial fears, or by our country's long history of racial divisions-give an essentially racial description.
The police should assume that when the woman said that a black person attacked her, that she didn't actually see the person's skin color, but that she was just basing it on American history?
6.3.2009 11:23am
JKG:
First, if you read the full sentence, Judge Calabresi admits that sometimes race-based police work is necessary; his point is that judges and society more generally should also consider its costs, which are substantial.

Second, "black" is a racial description, not a skin color. As good police work recognizes, black people come in all shades.
6.3.2009 11:49am
Steve:
The police should assume that when the woman said that a black person attacked her, that she didn't actually see the person's skin color, but that she was just basing it on American history?

Of course, Judge Calabresi didn't say anything like your paraphrase here, but merely noted as an aside that racial descriptions may not be 100% reliable.
6.3.2009 11:58am
David Schwartz (mail):
Eyewitness descriptions are notoriously inaccurate. This is especially true when the description perfectly fits what people may subconsciously expect. A description by an eyewitness that "I didn't get a good look at him but I think he was black" should certainly not be relied upon (all things tend to look dark in the dark). Of course, descriptions shouldn't be ignored either.

Given the statistical breakdown of the skin colors of the people in the area, and the vagueness of the description, my gut sense is that it's about equally likely that the perpetrator had dark skin as light skin.

The bit of police idiocy here though is in requesting a list of "black students". Properly understood, the victim described the assailant as having dark skin. That is not the same as the criteria the university almost certainly used when asked for a list of "black male students". (Though, in fairness, I suppose it depends on exactly how they used that list.)
6.3.2009 12:08pm
David M. Nieporent (www):
The bit of police idiocy here though is in requesting a list of "black students". Properly understood, the victim described the assailant as having dark skin. That is not the same as the criteria the university almost certainly used when asked for a list of "black male students". (Though, in fairness, I suppose it depends on exactly how they used that list.)
Shouldn't liberals be more upset that their approach to public policy meant that a university even had such a list? I mean, it strikes me as far more racist than anything the police did that a university is compiling a database of students by race. (I guess we have Sandra Day O'Connor to thank for that; only 19 more years until they don't get to do that anymore!)
6.3.2009 12:40pm
David M. Nieporent (www):
A description by an eyewitness that "I didn't get a good look at him but I think he was black" should certainly not be relied upon (all things tend to look dark in the dark).
Well, obviously that shouldn't be relied upon; someone who "didn't get a good look at" a perpetrator isn't really a witness at all (at least to that aspect of the crime). "Thinking" someone is black is obviously not the same thing as seeing that the person was black. But here we had a witness who saw that the person was black.

Barring other information, it would be utterly irrational for the police to investigate white people, given that description.
6.3.2009 12:44pm
Steve:
David, the point is not that the police should have investigated white people, and nowhere does Judge Calabresi suggest they should have investigated white people.

His point was simply that if you're going to have a policy of routinely conducting racial sweeps when a witness gives a racial description, some of the time you're inevitably going to be subjecting an entire racial population to an intrusive sweep even though the description wasn't accurate. It's an aside. It's not a judicial demand that the police should ignore eyewitness descriptions or any of the other things you're trying to make out of it.
6.3.2009 12:52pm
Cato The Elder (mail):
First of all, a caveat, I am not a lawyer, just an interested layperson.

I find Calabresi's analysis of the case lacking, for two reasons.

1) When he analogizes to the those who could possibly take offense to investigation and classification by an obviously spurious or demeaning identifying marker, like the embarrassingly tattooed individual, he brushes over serious consideration of the diminished effectiveness of the alternative classification posed in his hypothetical. The appropriate question to ask is, what is the ratio of the probability that the alleged criminal is Black relative to the probability that said criminal is inconveniently tattooed? Given an appropriately random sample, we can answer this question using a Bayesian Analysis - by the way, does that comment on the numeracy of the judiciary? - and by doing so, literally what his analysis implies is that blacks are not substantially overrepresented in the demographics of criminals relative to their numbers! (I assumed that the "spurious" classification implies its independence, or nearly so, from criminality). Clearly the rationale for racial classification in policing is compelling.

2) Moreover his argument itself is disingenuous. This has been previously pointed out before by others, but liberal philosophy has to address this ideological schizophrenia - classification based on race for different, less verboten, policy considerations in considered kosher, even though in the vein of the dissent's analysis they too might foster similarly offensive stereotypes and burdens! Isn't the presumption that there is unconscious and unattributed racism by Whites just as injurious to those individuals?
6.3.2009 2:11pm
Cato The Elder (mail):
I'm not sure if I want to say anything definitive about the appropriate scope of the police department's actions in the case, whether or not it was appropriate that every black male student was questioned, but arguing that they were casually discriminatory is facile, I think.
6.3.2009 2:50pm
Adam B. (www):
Well, they went beyond every black male student to every person of color in town -- including at least one woman -- regardless of age. That's when things seem /really/ dicey.
6.3.2009 3:06pm

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