13-4239-cv
Savino v. Town of Southeast

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 7th day of July, two thousand fourteen.

PRESENT:

           JOSÉ A. CABRANES,
           SUSAN L. CARNEY,
           CHRISTOPHER F. DRONEY,
                                Circuit Judges.
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VITO SAVINO, SAVINO, INC.,

                     Plaintiffs-Appellees,

                               -v.-                                                           No. 13-4239-cv

TOWN OF SOUTHEAST, CHARLES TESSMER, CODE
ENFORCEMENT OFFICER, TOWN OF SOUTHEAST, SUED IN HIS
INDIVIDUAL CAPACITY,

                      Defendants-Appellants.
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FOR PLAINTIFFS-APPELLEES:                                                 MICHAEL H. SUSSMAN, Sussman & Watkins,
                                                                          Goshen, NY.

FOR DEFENDANTS-APPELLANTS:                                                STEPHEN J. GABA, Drake, Loeb, Heller,
                                                                          Kennedy, Gogerty, Gaba & Rodd, PLLC, New
                                                                          Windsor, NY.




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       Interlocutory appeal from an order, entered October 21, 2013, of the United States District
Court for the Southern District of New York (Nelson S. Román, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court denying summary judgment is AFFIRMED
and the cause REMANDED for further proceedings consistent with this Order.

       Plaintiffs Vito Savino and Savino, Inc., (jointly, “Savino”) allege violations of their
Fourteenth Amendment right to equal protection under the law by defendants the Town of
Southeast (“Southeast” or the “Town”) and its former zoning code enforcement officer, Charles
Tessmer. Defendants appeal here from an order of the District Court denying their motion for
summary judgment and denying Tessmer qualified immunity.

                                           BACKGROUND

         Savino alleges an equal protection violation under two theories of liability. First, he asserts
that Tessmer and the Town discriminatorily applied the facially neutral zoning laws on the basis of
Savino’s Italian national origin, and second, he asserts that defendants selectively enforced the
zoning laws against him. Specifically, Savino alleges that the issuance and prosecution of several
zoning violation tickets was motivated by discrimination and that he was treated differently than
similarly-situated comparators.

        As direct evidence for this discrimination, Savino points to a dispute over whether he had a
proper zoning permit to install a sign. He alleges that at that time Tessmer handed him a cease-and-
desist order and told him, “You Guineas think you can get away with anything.” Savino also points
to two neighboring businesses he claims are similarly situated, but which were not prosecuted for
zoning violations.

                                            DISCUSSION

                        1. Jurisdiction Over Tessmer’s Interlocutory Appeal

         “Although the denial of a motion for summary judgment is generally not appealable, an
exception applies where . . . the challenged denial is based on the rejection of qualified immunity.”
DiStiso v. Cook, 691 F.3d 226, 239 (2d Cir. 2012). We have jurisdiction over the District Court’s
denial of qualified immunity only insofar as that denial “turns on an issue of law.” Mitchell v. Forsyth,
472 U.S. 511, 530 (1985); Kelsey v. Cnty. of Schoharie, 567 F.3d 54, 60 (2d Cir. 2009).

         Where, as here, a district court denies a defendant qualified immunity, we have appellate
jurisdiction over that defendant’s interlocutory appeal “if the defendant contests the existence of a
dispute or the materiality thereof as a matter of law, or contends that he is entitled to qualified




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immunity even under plaintiff ’s version of the facts.” DiStiso, 691 F.3d at 239 (internal quotation
marks omitted).

        Here, defendants contend that, even under Savino’s version of the facts, Tessmer is entitled
to qualified immunity. For the reasons set out below, we disagree and affirm substantially for the
reasons stated in the District Court’s thorough and well-reasoned opinion.

                                         2. Qualified Immunity

         “Qualified immunity shields law enforcement officers from § 1983 claims for money
damages provided that their conduct does not violate clearly established constitutional rights of
which a reasonable person would have been aware.” Zalaski v. City of Hartford, 723 F.3d 382, 388 (2d
Cir. 2013). “The qualified immunity test is an objective one.” Zellner v. Summerlin, 494 F.3d 344, 367
(2d Cir. 2007). In making this assessment, we ask “[d]o the facts, viewed in the light most favorable
to the plaintiff, show that the officer’s conduct violated a constitutional right,” and, if so, “[w]as the
right at issue clearly established at the time of the defendant’s actions?” Walczyk v. Rio, 496 F.3d 139,
154 (2d Cir. 2007).

        “The relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). Here, it is beyond peradventure that the right
to be free from application of a neutral law, or selective enforcement of a law, because of race or
national origin is clearly established. For this proposition, the District Court relied on Yick Wo v.
Hopkins, 118 U.S. 356, 373–74 (1886), and LeClair v. Saunders, 627 F.2d 606, 610 (2d Cir. 1980); we
could cite dozens of other cases for these same basic principles of equal protection. The District
Court properly found that “it is unreasonable to believe that applying or enforcing a law based on
someone’s national origin does not violate the Fourteenth Amendment, and no official of
reasonable competence would disagree.” Savino v. Town of Southeast, No. 11 Civ. 483 (NSR), 2013 WL
5730043, at *14 (S.D.N.Y. Oct. 21, 2013).

        Assuming as we must that Tessmer made the “Guineas” comment that Savino imputes to
him, there are genuine issues of material fact concerning whether Tessmer intentionally
discriminated against Savino because of his Italian national origin. Given this direct evidence of
discriminatory intent, the District Court properly concluded that summary judgment was
inappropriate, because a reasonable juror could find that Tessmer violated the Equal Protection
Clause by selectively enforcing the zoning laws against Savino, Inc., on the basis of Savino’s national
origin. It is inappropriate to review that decision here. Rather, the issue of whether it was
objectively reasonable for Tessmer to believe his conduct did not violate clearly established law
requires resolution of genuine factual disputes as to what Tessmer’s motivations were, which cannot
be resolved on this appeal. See Johnson v. Jones, 515 U.S. 304, 319–20 (1995).



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        Defendants also assert that we should reverse the District Court’s order of October 21,
2013, because Savino’s constitutional rights were never, in fact, violated. But we agree with the
District Court that there are open material issues of fact, and so we must affirm. One of the
material issue of fact that remains in dispute—Tessmer’s motivations and whether he actually made
the “Guineas” comment—goes both to whether he is entitled to qualified immunity and whether
Savino’s equal protection rights were in fact violated. We conclude that summary judgment was
properly denied as to both theories of equal protection.

            3. Pendent Appellate Jurisdiction Over Southeast’s Interlocutory Appeal

        Defendants also ask that we exercise pendent appellate jurisdiction to review the District
Court’s denial of summary judgment as to the Town of Southeast.

        We have discretion to exercise pendent appellate jurisdiction over “issues that are not
ordinarily subject to interlocutory review only when: (1) they are inextricably intertwined with the
determination of qualified immunity; or (2) their resolution is necessary to ensure meaningful review
of the district court’s ruling on qualified immunity.” Walczyk, 496 F.3d at 153 (internal quotation
marks omitted); see also Bolmer v. Oliveira, 594 F.3d 134, 141 (2d Cir. 2010). This discretion should be
exercised only in “exceptional circumstances.” Natale v. Town of Ridgefield, 927 F.2d 101, 104 (2d Cir.
1991); see also Jones v. Parmley, 465 F.3d 46, 65 (2d Cir. 2006) (“Pendent appellate jurisdiction is a
procedural device that rarely should be used because of the danger of abuse and . . . accordingly, we
must exercise such jurisdiction only in exceptional circumstances.” (internal alterations and quotation
marks omitted)).

         The circumstances of this case do not justify choosing to exercise our discretionary appellate
jurisdiction over the Town’s appeal.

       For the reasons set out above, we AFFIRM the October 21, 2013, order of the District
Court and REMAND the cause to the District Court for further proceedings consistent with this
Order.



                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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