In Search of a Right
ONEONTA, NEW YORKOn a summer afternoon, surrounded by emerald hills and brilliant blue skies, it is not so hard to see why Tyrone Lohr stays in Oneonta. He likes the pace of this 14,000-person town. It is calmer than Queens, the city borough where he grew up. There is no traffic to speak of, although residents expect some bustle when the fall term begins at the town's state college. Lohr, 31, graduated from there in 1996, landed a good job, and settled in.
It should be a great place for Lohr to live, except that here, on September 4, 1992, just moments into his fresh-man year, he became one of several hundred innocent black residents targeted in an infamous police manhunt.
Someone had broken into a local home in the middle of the night. The victim said the intruder was black. Over the course of five days, state, county, and town police joined forces to interrogate scores of people, all black, at their homes or workplaces, outside classrooms, at the bus depot, at traffic stops, and on sidewalks. There were approximately 400 black students at the State University of New York College at Oneonta, known as SUCO. There were several hundred black residents. Authorities had a good shot at meeting their declared goal: to track down every black person in town. In the end, no one included in the sweep turned out to be the culprit.
The racial dragnet ignited angry protests. The humiliating events cried out for fast justice. Yet remarkably, 13 years later, the targeted still wait.
Dismissed at federal court, long stymied at state court, the plaintiffs can hardly be blamed for suspecting that the great constitutional principle of equality is a sham. But now this class action suit, one of the longest litigated civil rights cases in the nation, is finally headed to a trial this fall.
"It is about time," says Lohr. "I'm always aware that race can get pulled on me. It's my responsibility to keep on this, to keep it from happening again to someone else."
With mixed hopes and much indignation, some of the plaintiffs spoke to the Voice about wrongs long ignored, wrongs compounded with time. The harm they describe is greater and more complex than its parts. Theirs is a story not just of offensive incidents, but of permanent membership in an unwelcome minority, of being constantly watched, of racial inequality that is too often reinforced by agents of the state.
Tyrone Lohr in Oneonta
photo: Chisun Lee
photo: Chisun Lee
A dark hand in the night
The crime was serious. But except for a few certainties, the truth was murky and became murkier with time. It happened in a house located down a narrow road, through fields and trees, where just a few other houses stand. Locals say that the scene has not changed much, except that there were no streetlights on the road back then.
A 77-year-old woman visiting from out of town was awakened in that house sometime after midnight on Friday, September 4, 1992, by an intruder. She had been sleeping on her stomach in a first-floor bedroom, and the man had either lain or sat on top of her, she later recalled. She never saw his face or his full form, only a dark hand gripping a knife. He warned her to "do as I say" and stuffed a bandanna in her mouth.
Resisting, she turned and managed to push him away. Sometime in the struggle she suffered several cuts and, she later said, the attacker might have cut himself with the knife. He ran from the room and fled the house. Police initially called the crime an attempted burglary but later described it as an attempted rape.
The victim, since deceased, told police that her attacker had the vocal "timbre" and dark hand of a black man, and from his speed appeared to be young. Deposed in September 1995 by lawyers for the plaintiffs, she said, "I am well acquainted with his black arm, with black arms, because there are different shades and so on, I know. My son-in-law is black. One of my grandnephews is black. I know black. And certainly I didn't say it in a derogatory way when I identified him as black, but the voice and the skin did it." Voice, skin color, gender, and seeming youth were all the description she was able to give the police. The attacker also left behind bloodstains on some of the doors and walls.
The investigators theorized that the intruder might have cut himself on the hand or arm, since blood was found on the doorknobs. Along the way, this possibility became a public certainty to the police. It also became integral to the investigation, a detail used to justify the inspection of the bodies of hundreds of innocent black residents. The victim herself said, "I didn't know where he had cut himself. How was I to know?"
Scott Fein, a partner at the Albany firm Whiteman Osterman & Hanna, which has represented the black plaintiffs, pro bono, from the start, says that even if the cut hand or any clue had been certain, nothing could justify pursuing every black person in town. Over the dragnet's five days, he says, investigators had plenty of time to stop and reconsider their actions. Instead, they forged ahead, in flagrant disregard, according to Fein, of his clients' constitutional rights to be free from discrimination and unreasonable search and seizure.
In fact, the state police case file, a redacted copy of which Fein provided to the Voice, lists hundreds of fruitless interviews, a litany of "negative results," and "no pertinent information." It describes an all-points effort to track down any and all black males, on the sidewalks and at traffic stops, with absolutely no indication that officials paused to consider the social implications of such a sweep.
One agent's report, typical of the kind of investigations described, reads: "[name] is a white female, age 16, states she has black male friends and named [name], [name], [name], [name]." According to Fein's analysis of the file, over 100 black women and many older black men were interrogated, despite the victim's description.
"The actions of the state police were lawful in the circumstances," says Marc Violette, a spokesperson for Attorney General Eliot Spitzer, who stressed that the office is required by statute to defend all lawsuits against the state. "We mount a full defense. We want to prevail, and we take that same approach whether the issues are more trivial or deeply substantive," he said, refusing to make available any of the state's attorneys or provide detailed responses to questions. (Voice writer Wayne Barrett has disputed the absoluteness of this statutory duty, reporting past instances where New York attorneys general refused on principle to defend certain state actions.) Spitzer showed more concern in 1999, after the state won a crucial federal court argument defeating the plaintiffs' constitutional claims. He told Bob Herbert of The New York Times, "We won the case but it makes your skin crawl."
The debate over the years has been whether New York State is defending merely shoddy but excusable police work or outright discriminatory policing. But there is little debate as far as the plaintiffs are concerned. When the effect either way is to harass hundreds of blacks exclusively, the difference between carelessness and design hardly matters. Whether incidentally or on purpose, the plaintiffs believe that official racism played an undeniable role in the probe, and it damaged their lives.
'All the black people in the community'
Hopeton Gordon (left) and John Mason
photo: Steven Sunshine
Lohr woke from an afternoon nap to find several uniformed officers in his dormitory room. They wanted to know where he had been in the pre-dawn hours of September 4. They said they needed to see his arms and hands. A small scar on his right hand excited them, until he pointed out how obviously old it was.
The authorities had obtained a list from the college's vice president for administration, Leif Hartmark, of the names and addresses of all 125 black male students. Hartmark's quick compliance enabled police to move through the dorms with efficiency. He would later be demoted for violating the students' privacy.
Much of the questioning occurred in public or before an audience. Ricky Brown was walking home from a frat party when the uniforms formed a circle around him. Hopeton Gordon of the Bronx was roused from a nap in his dorm room and grilled as fellow students looked on. Hugh Harris-Inniss, from Trinidad by way of Brooklyn, was questioned once outside his off-campus apartment and then again that same day, as he called his mother from a pay phone to tell her about the first time. Sheryl Champen, then a SUCO admissions officer, was one of the women inexplicably stopped. At the town's bus depot, she was told by an officer that if she did not produce identification, she would not be allowed to board a bus to visit her grandmother in the Bronx.
All across Oneonta, for days, black students and residents stood before law enforcement agents, often in view of their white neighbors and colleagues, accounting for their whereabouts and displaying their arms. Many recently told the Voice that they were angry and hated to go along, but that cooperation seemed the only option when faced with several, often armed, officers at a time.
"We've tried to examine the hands of all the black people in the community," then senior state police investigator H. Karl Chandler told the Oneonta Daily Star in 1992. Forced to retire five years later, after a statewide corruption probe uncovered rampant evidence-tampering in the troop under his watch, Chandler spearheaded the multi-agency Oneonta sweep. The state's lawyers would later frame his judgments as having shown legitimate police discretion. Essentially, Chandler figured, black males being a manageably small minority in this town, the police might as well question them all. He said in a CBS television interview that his decision was "practical."
The investigation did not include a single law enforcement agent of color, according to Fein's interviews over the years with participating officers. Race and minority status did not seem to spark the slightest social concern or comprehension in officials like Chandler. He said then to The New York Times, "If your car has an accident, and there's red paint on it, are you going to look for a green car?"
Reached at his home in Oneonta last month, Chandler said, "My views have not changed. I have many black friends, and I've talked to them about this. They think the investigation was fine." He insisted that the same blanket approach would have been used upon another groupfor instance, if the suspect had been "redheaded"if the numbers allowed. Asked whether he had ever considered the social meaning of such an investigation, given the history of racism and official oppression in the U.S., Chandler said, "That is BS. There was no disrespect. We were not rude. The only people who would feel that way have something to hide or want money from a lawsuit."
Sorry was not enough
They had no idea who they were looking for," Brown, the former SUCO student whose name leads the plaintiffs' roster, recently told the Voice. "Why didn't they just lock up all the black students in the gym and say, no one leaves until someone steps forward?"
He said the dragnet made college "miserable" and turned his first semester into "the absolute worst time of my life." Describing an experience of alienation that other plaintiffs confirmed as common, he said, "Going certain places as a black student in Oneonta was hard enough to begin with. And you're one of maybe two black people in a classroom. This sweep being the hot topic of the day, professors would ask what we thought about it. Some white student would say, 'They're always looking for money,' meaning a lawsuit. The professor would say, 'We need someone to take the other side. Of course, Mr. Brown must have something to say.' It could be art classit would get brought up. And no one would take the black students' side, unless they were black."
Brown stuck it out and graduated from SUCO, although he says he considered leaving many times. "I felt as though I'd be letting the police and all those who trampled on my rights win."
Hugh Harris-Inniss also stayed, despite one day finding a note on his apartment door that read, "Get out, you niggers." He recently remembered, "My mom kept telling me to leave, but I didn't want this thing to beat me." But as many as half the black students either left the school immediately or transferred in subsequent semesters, two administrators from that time told the Voice. Minority enrollment dropped significantly after that fall, they said.
After being stopped and questioned, many of the students went directly to Edward "Bo" Whaley, a counselor who is black and still works at SUCO as an advocate for low-income students. He quickly arranged community meetings, and soon news reports began to describe student protests as large as 500.
Whaley had attended SUCO in the 1970s, when, he said, "There were white folks here who had never seen black folks in the flesh." Decades later, he is now a town fixture, prompting waves and greetings when he drives the streets. He described a responsive, close-knit community, where "one day I called the mayor about a dangerous bend in the road. The next day, there was a crossing guard there. A few days later, a blinking light had been installed. I can't imagine where else I would have wanted to raise my kids."
"It was such a divisive situation that I actually said to my wife, 'I hope that when they catch this guy, he turns out to be black. Because if he isn't, and none of this was legitholy Toledo,' " Whaley recently recalled. His white neighbors' disapproval of his sudden activism exemplified the racial dynamics of Oneonta, he said. "They would say to me, 'Bo, how can you say these things in the newspaper? This thing didn't happen to you.' I would say, 'It's like it happened to me. I'm black.' They would say, 'But Bo, we don't think of you as black.' "
He blames the community's lack of racial awareness for allowing a climate where the dragnet was possible in the first place. In video footage he and a student took during those heated weeks, Oneonta's then mayor, David Brenner, says, "There was a time when this community had probably four, possibly five, black families, who everyone knew. Everyone knew the parents, the offspring. We hadn't seen them here as groups."
Apologies soon trickled forth, directed mostly to the students, whose organized outrage attracted the greatest media coverage of the town-wide sweep.
A week after the investigation began, SUCO's president, Alan Donovan, condemned the school's release of the list as "illegal" and "immoral" and criticized police for acting "in violation of civil rights."
The state police also apologized, saying their "zeal to solve this serious crime" had led to actions "which we now know to be insensitive to the feelings and perceptions of minority students."
But "sorry" was not enough. On behalf of the black community, a few students contacted rights groups, which directed them to Fein's firm. At one of his first meetings with his clients, videotaped by Whaley, Fein stood at a podium before a bank of television cameras and told the packed lecture hall that the community was owed justice.
Time deepens the wounds
Thirteen years later, that audience, now adults with families and careers, still waits. The plaintiffs sued the state of New York, the university system, and law enforcement agencies, in both federal and state courts, under similar federal and state constitutional provisions. They alleged racial discrimination and unreasonable searches and seizures. They ran into roadblocks both ways.
The federal discrimination claims were ultimately dismissed, when a panel of the Second Circuit Court of Appeals found that the plaintiffs "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."
The plaintiffs' petition to the U.S. Supreme Courtto hear what had become known as the test case about racial profilingwas denied. The rejection came less than a month after the 9-11 attacks, as law enforcement agents across the country jailed or interrogated thousands who appeared to be Arab or Muslim. Attorney Fein believes the timing was a factor in the denial.
State court posed another hurdle. Never had New York's courts allowed plaintiffs alleging purely constitutional violations to sue the government for money damages. The thought was that money would cheapen the constitutional principles involved. But the Oneonta plaintiffs had no other option. They could not take the traditional route of demanding that the violation be stoppedit had happened years before.
As their lawyers duked it out with the state's lawyers in over 50 motions and court appearances, the plaintiffs grappled with anger and disbelief. The police sweep had been an outrage, but the rejection by the courts was coldly stunning.
If the constitutional guarantee of racial equality could not be invoked to avenge his degrading treatment at the hands of Investigator Chandler and his troops, Hopeton Gordon wondered if it was good for anything. In September 1992, he had shared his feelings at a rally of students. "I'm not stupid. I might be black, but I'm not dumb. I felt humiliated," he told the crowd. As the years went on, Gordon earned his master's degree in public administration from New York University, got married, and had children. Today he works for the city's Health and Hospitals Corporation.
He recently told of being pulled over by police "for being a black man driving an Acura." His young daughter had been in the back seat. She said, "Daddy, are you going to jail?" Gordon recalled. "We take it for granted that this is 2005, but I tell my girls to be careful not to put themselves in a situation where they might get arrested or in trouble with the cops. You come to expect that you're going to be harassed."
Plaintiff John Mason, 32, who grew up in Hollis, Queens, and is now a technology consultant at JPMorgan in Manhattan, says he has been pulled over "15 to 20 times in my life, between driving up to Oneonta for school and visiting my mom in Pennsylvania."
He calls the police conduct in Oneonta "arrogant," warning that a lack of punishment will embolden racist officials everywhere. "We thought, for sure, there was going to be hell to pay, that heads would roll at the police department. But here we are, 13 years later, and nothing," says Mason. "There's a part of these people that is ingrained, where these guys do these things unabashed and undaunted, and then they say, 'We did it. So?' In order for them to do what they did in Oneonta, they had to have thought, 'There are going to be no consequences. These are just black folks.' "
Other plaintiffs share stories about being pulled over by highway police, being frisked without cause by police, and constantly having to deal with suspicions or stereotypical assumptions at work. They say their Oneonta experience often comes back in these moments as their lesson on just how bad such tensions can get.
Even as they endured the struggles of racism in their daily lives, the plaintiffs wonto the astonishment of legal observersthat historic break at state court that they needed. Faced with turning the Oneonta dragnet victims away or revolutionizing state law, in 1996 New York's Court of Appeals chose the latter and ruled that the plaintiffs could demand monetary compensation for their constitutional claims. But it would be another eight years before a judge would tell the government defendants that they had run out of appeals and that they should prepare themselves for trial.
More than victory
The Court of Appeals may have shocked traditionalists by allowing money talk to enter the lofty constitutional debate, but the plaintiffs are demanding still more. Not only has each member of the class claimed $75,000not pennies, but not extravagant in view of their ordealbut the plaintiffs have from the beginning made some unusual demands, demands that look more like public reform than private litigation.
One of the earliest desires of the student plaintiffs was for the state university system to provide free tuition to one qualified persona relative or community memberper plaintiff, on top of the damages claimed. They thought it apt, since they were alleging that the state had deprived them of their right to enjoy an education just like any white student. The demand was quickly pooh-poohed by legal experts, since court remedies must typically be linked specifically to the plaintiffs. The state rejected the idea.
Thirteen years later, the plaintiffs are not thinking any smaller. Although he says the money is negotiable, Fein calls one novel and provocative demand a "critical" part of any conclusion: the creation of a statewide ban on police misuse of race, along with training and discipline to instill racial awareness into policing culture.
"We need a change on the books," says plaintiff Brown. "I don't think the cops would hesitate to do this again, generate a list based on race. Not after 9-11."
Unlike the New York City Police Department or those of some 35 states, New York's state police do not have an anti-racial-profiling policy, except for guidelines in making vehicle stops. But like the demand for free tuition, the demand for a racial-profiling ban is unlikely to be considered in court. Violette of the attorney general's office refused to comment on the prospects for such a ban.
The 13 intervening years have not made the plaintiffs forget. If anything, the delay has only made it more important to them not to give up, "to show them they can't just wait us out," says Lohr. But none of those who spoke of their views seem likely to take a court win alone as a happy ending. Their stories suggest a longing for a greater justice entirely, for no less than a life of equality, dignity, and freedom.
They demand an ambitious notion of progress, the idea that even in a world of constant threat, no one would be suspect just because of race, religion, or ethnicity. Not just because a court says so, but because the people believe it.
But their accounts of walking the streets of Oneonta and New York City, of driving on highways all across the land, reflect an opposite reality. "Everywhere you go, you're going to find racism," says plaintiff Harris-Inniss. Sometimes that racism is official.
Some of Lohr's co-plaintiffs said they thought it insane that any black man would choose to live in Oneonta after September 1992. But Lohr says, "At the end of the day, it's no different than anywhere else."
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