Date: Thu, 4 Nov 1999 18:08:52 -0500
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From: Daniel Moshenberg <>
Subject: [BRC-NEWS] Breathing While Black
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Breathing while Black

Opinion by Bob Herbert, The New York Times, 4 November 1999

A federal appeals court says it’s all right, but it’s not all right.

Here’s the lead paragraph from the New York Times story on a decision last week by the U.S. Court of Appeals for the Second Circuit:

A federal appeals court ruled yesterday that police officers in Oneonta, N.Y., did not violate the Constitution when they tried to stop every black man in town in 1992 after a woman said she had been robbed in her home by a young black man.

Got that? Every black man in town. This is New York, mind you, not Mississippi.

After hearing that a black man had committed a crime, the cops went after every black man they saw walking the streets. They dragooned black men and boys (and at least one black woman!) who were trying to use public transportation. They pulled over black guys riding in cars. They went to the State University of New York at Oneonta and got a list of all the black students in the school, and they went after them.

These were all innocent people. The cops never did find the alleged assailant. But that didn’t matter. Neither their rights as citizens nor their humanity mattered.

These were black people, and whatever you do to them is all right. They may have been masquerading as human beings, but Oneonta’s men in blue (assisted by the state police) could see right through that disguise.

The manhunt began early on the morning of Sept. 4, 1992, when a 77-year-old woman told police she had been attacked by a burglar. The woman, who was white, said she never saw the man’s face but could tell from his arm and hand that he was black. She said she thought he was young because he moved quickly. She said the man had a knife and had cut himself on the hand while struggling with her. He then fled.

A canine unit tracked the scent of the alleged assailant for several hundred yards before losing it. Investigators said the path of the scent pointed toward the university campus. That’s all the cops had to go on.

No problem. There weren’t all that many black people in Oneonta. Of the 14,000 full-time residents fewer than 500 are black. And only about 2 percent of the 7,500 students at the university are black. So the cops, smart enough to know a black person when they see one, decided to stop every black guy in the town to see if one of them had a cut on his hand.

This went far beyond the problem of driving while black. People were being stopped in Oneonta for breathing while black. Trust me, if some poor guy had innocently cut his finger while slicing a tomato for dinner he would have landed in jail.

The cops never did find their man, but they humiliated a lot of people in the process. In last week’s opinion, a three-judge panel of the Second Circuit said: We are not blind to the sense of frustration that was doubtlessly felt by those questioned by the police during this investigation.

But the panel ruled that this police sweep of blacks in Oneonta was O.K., that it was constitutionally permissible, that it was not a violation of the equal protection clause of the 14th Amendment or the Fourth Amendment’s prohibition against unreasonable seizures. Never mind the breathtaking totality of the sweep. Never mind that the cops were not considering any other aspect of the so-called description except race. Never mind that this would never happen to the white residents of Oneonta. The court ruled that the stops were not racially discriminatory because, in the court’s view, the cops were acting on a description that included more than just the color of the alleged assailant.

With this ruling, cops are free to harass any and all black people as long as they have in hand a complaint that a black person has committed a crime. If you are black, you are a suspect.

The ruling, which upheld a similar ruling by a lower court, grew out of a lawsuit filed against the Oneonta cops and the state police by several of the people caught up in the sweep. The case against the plaintiffs was argued by lawyers from the office of State Attorney General Eliot Spitzer, who had a statutory obligation to defend the state in the suit, but who made it clear that he was uncomfortable with the outcome.

I read the circuit opinion, he said yesterday. And I said, ‘You know what? We won the case but it makes your skin crawl.’