Under what circumstances is it legitimate for police to use race as a factor in pursuing criminal suspects? While it's generally accepted that police can broadcast a suspect's race as part of an overall description, more sweeping investigative techniques have led to legal challenges. The 2nd U.S. Circuit Court of Appeals ruled last month that an upstate New York police department did not violate the Constitution when it attempted to question all young black men in a small town on the basis of a robbery victim's description.

Excerpts from Brown v. Oneonta:

Oneonta, a small town in upstate New York about 60 miles west of Albany, has about 10,000 full-time residents. In addition, some 7,500 students attend and reside at the State University of New York College at Oneonta (SUCO). The people in Oneonta are for the most part white. Fewer than 300 blacks live in the town, and just 2 percent of the students at SUCO are black.

On Sept. 4, 1992, shortly before 2 a.m., someone broke into a house just outside Oneonta and attacked a 77-year-old woman. The woman told the police who responded to the scene that she could not identify her assailant's face, but that he was wielding a knife; that he was a black man, based on her view of his hand and forearm; and that he was young, because of the speed with which he crossed her room. She also told the police that, as they struggled, the suspect had cut himself on the hand with the knife. A police canine unit tracked the assailant's scent from the scene of the crime toward the SUCO campus, but lost the trail after several hundred yards.

The police immediately contacted SUCO and requested a list of its black male students. An official at SUCO supplied the list, and the police attempted to locate and question every black male student at SUCO. This endeavor produced no suspects. Then, over the next several days, the police conducted a "sweep" of Oneonta, stopping and questioning non-white persons on the streets and inspecting their hands for cuts. More than 200 persons were questioned, but no suspect was apprehended. . . .

In early 1993, the SUCO students whose names appeared on the list and other persons questioned during the sweep of Oneonta filed this action in the district court against the city of Oneonta, the state of New York, SUCO, certain SUCO officials, and various police departments and police officers.

In their amended complaint, plaintiffs asserted that defendants violated their rights under the Fourth Amendment [which governs illegal search and seizures] and the Equal Protection Clause of the United States Constitution. . . . [Plaintiffs] contend that defendants utilized an express racial classification by stopping and questioning plaintiffs solely on the basis of their race. . . .

Plaintiffs do not allege that . . . the police used an established profile of violent criminals to determine that the suspect must have been black. Nor do they allege that the [police] have a regular policy based upon racial stereotypes that all black Oneonta residents be questioned whenever a violent crime is reported. In short, the plaintiffs' factual premise is incorrect: they were not questioned solely on the basis of their race. They were questioned on the altogether legitimate basis of a physical description given by the victim of a crime. Defendants' policy was race-neutral on its face; their policy was to investigate crimes by interviewing the victim, getting a description of the assailant, and seeking out persons who matched that description. This description contained not only race, but also gender and age, as well as the possibility of a cut on the hand. . . .

Police practices that mirror defendants' behavior in this case--attempting to question every person in a general category--may well have a disparate impact on small minority groups in towns such as Oneonta. If there are few black residents, for example, it would be more useful for the police to use race to find a black suspect than a white one. It may also be practicable for law enforcement to attempt to contact every black person, but quite impossible to contact every white person. If an area were primarily black, with very few white residents, the impact would be reversed. The Equal Protection Clause, however, has long been interpreted to extend to governmental action that has a disparate impact on a minority group only when that action was undertaken with discriminatory intent. . . . Without additional evidence of discriminatory animus, the disparate impact of an investigation such as the one in this case is insufficient to sustain an equal protection claim.

In addition, plaintiffs do not sufficiently allege discriminatory intent. They do allege that at least one woman, Sheryl Champen, was stopped by law enforcement officials during their sweep of Oneonta. This allegation is significant because it may indicate that defendants considered race more strongly than other parts of the victim's description. However, this alleged incident, to the extent that it was related to the investigation, is not sufficient in our view to support an equal protection claim under the circumstances of this case.

We are not blind to the sense of frustration that was doubtlessly felt by those questioned by the police during this investigation. The plaintiffs have argued that there is little difference between what occurred here and unlawful profiling based on a racial stereotype. While we disagree as a matter of constitutional law, we are not unmindful of the impact of this police action on community relations. Law enforcement officials should always be cognizant of the impressions they leave on a community, lest distrust of law enforcement undermine its effectiveness. Yet our role is not to evaluate whether the police action in question was the appropriate response under the circumstances, but to determine whether what was done violated the Equal Protection Clause. We hold that it did not, and therefore affirm the district court's dismissal of plaintiffs' claims alleging equal protection violations.

Plaintiffs' claims also allege a violation of their Fourth Amendment rights. The district court dismissed many of these claims . . . because, in its view, plaintiffs had not been subject to "seizures" under the Fourth Amendment. For the reasons that follow, we vacate the [lower court's] judgment against plaintiffs Jean Cantave and Sheryl Champen [and allow their lawsuits to proceed].

Jamel Champen [Sheryl Champen's brother, who was stopped in a separate incident], in his affidavit, alleges that a police officer pointed a spotlight at him and said "What, are you stupid? Come here. I want to talk to you." He was then told to show his hands. Despite the alleged rudeness of this encounter, the district court was correct in determining that this did not amount to a seizure. The encounter was brief in duration, and the police officer only looked at Champen's hands.

Jean Cantave avers that he was driving in Oneonta when he was pulled over by a police car with a siren and flashing lights. Cantave was ordered out of the car and instructed to place his hands on top of the car. The Supreme Court has stated that the "temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' " under the Fourth Amendment . . . . We have no doubt that Cantave was seized.

Ricky Brown's affidavit states that three police officers stopped him on the street. They asked for his [student] identification card, passed it around, and returned it to Brown. At one point, the officers "formed a circle around" Brown. When Brown asked if he had permission to leave, they told him that he was free to go. One officer then asked to see Brown's hands. Although there were several officers present, none of them had physical contact with Brown, and the officers explicitly told Brown that he was free to leave. While it is a closer case then some, we agree with the district court that no seizure occurred. . .

Sheryl Champen alleges that a police officer approached her at a bus station and told her that if she wanted to board the bus for which she was waiting, she would have to produce some identification. This contact is plainly a seizure under the case law because the police officer made it clear that he was detaining her. . . .

No suspect was ever charged in the robbery. Lawyers for the plaintiffs in Brown v. Oneonta say they will appeal.