     07-0334-cv(L), 07-3524(CON)
     Pyke v. Cuomo

 1                                 UNITED STATES COURT OF APPEALS
 2
 3                                      FOR THE SECOND CIRCUIT
 4
 5                                 ____________________________________
 6
 7                                           August Term, 2008
 8
 9   (Argued: March 16, 2009                                                 Decided: May 27, 2009)
10
11                                 Docket Nos. 07-0334-cv(L), 07-3524(CON)
12
13                    ___________________________________________________
14
15       JOSEPH H. PYKE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE
16        ESTATE OF MATTHEW PYKE, MAY P. COLE, CHARLES BENEDICT, PATRICIA A.
17        BENEDICT, JULIUS M. COOK, BEVERLY J. PYKE, EDWARD SMOKE, SELENA M.
18       SMOKE, MARGARET PYKE THOMPSON, ON BEHALF OF THEMSELVES AND ALL
19                         OTHER PERSONS SIMILARLY SITUATED,
20
21                                           Plaintiffs-Appellants,
22
23                                                    -v.-
24
25       MARIO CUOMO, THOMAS A. CONSTANTINE, ROBERT B. LEU, AND RONALD R.
26                                  BROOKS,
27
28                                     Defendants-Appellees.
29                    ___________________________________________________
30
31         Before: CALABRESI and WESLEY, Circuit Judges, and DRONEY, District Judge.*
32                   _________________________________________________
33
34
35          Appeal from a judgment of the United States District Court for the Northern District of

36   New York (McCurn, J.), granting summary judgment to Defendants on Plaintiffs’ Equal


     *
      The Honorable Christopher F. Droney, United States District Court for the District of
     Connecticut, sitting by designation.

                                                       1
 1   Protection claims. We hold that Plaintiffs have shown neither an express racial classification nor

 2   racially discriminatory intent and impact in Defendants’ response to a period of violent unrest on

 3   an Indian reservation. Accordingly, the judgment is AFFIRMED.

 4                                 _________________________
 5
 6                                 DAVID A. BARRETT (Jeffrey S. Shelly, on the brief) Boies,
 7                                 Schiller & Flexner, LLP, Albany, N.Y., for Plaintiffs-Appellants.
 8
 9                                 FRANK BRADY, Assistant Solicitor General (Barbara D.
10                                 Underwood, Solicitor General, and Andrew D. Bing, Deputy
11                                 Solicitor General, on the brief), for Andrew M. Cuomo, Attorney
12                                 General of the State of New York, Albany, N.Y., for Defendants-
13                                 Appellees Thomas A. Constantine, Robert B. Leu, and Ronald R.
14                                 Brooks.
15
16                                 Lawrence O. Kamin (Lisa D. Bentley, on the brief) Wilkie Farr &
17                                 Gallagher LLP, New York, N.Y., for Defendant-Appellee Mario
18                                 Cuomo.
19                                 __________________________

20   PER CURIAM:

21          This case arises from widespread, violent unrest on a Mohawk Indian reservation in New

22   York in the late 1980s and early 1990s. At issue is the response of certain New York officials to

23   that crisis. Plaintiffs, as representatives of a class, argue that Defendants—all of whom are

24   government officials with some responsibility for the policing of Indian lands—violated

25   Plaintiffs’ rights under the Equal Protection Clause through their inadequate and at times harmful

26   response to the unrest on the reservation. Plaintiffs allege that Defendants’ actions contributed to

27   millions of dollars in property damage and the deaths of two young Mohawks.

28           The case came before our Court once before, resulting in a short opinion which vacated

29   the district court’s grant of summary judgment for Defendants and remanded for application of



                                                      2
 1   the proper Equal Protection standard. See Pyke v. Cuomo, 258 F.3d 107 (2d Cir. 2001) (“Pyke

 2   I”). On remand, the United States District Court for the Northern District of New York

 3   (McCurn, J.) again granted summary judgment for Defendants, finding that their actions did not

 4   amount to an Equal Protection violation and that the officials were entitled to qualified

 5   immunity. Plaintiffs appeal from this judgment and the District Court’s subsequent denial of

 6   Plaintiffs’ Rule 60(b) motion based on newly-discovered evidence.1 They argue: (a) that

 7   disputed issues of material fact preclude summary judgment on their claims of express racial

 8   classification (what Plaintiffs call their “strict scrutiny” argument), (b) that disputed issues of

 9   material fact regarding discriminatory impact and intent preclude summary judgment even on

10   rational basis review, and (c) that qualified immunity is inappropriate. We assume the parties’

11   familiarity with the basic facts, which are briefly recounted in our first opinion. See Pyke I, 258

12   F.3d at 108.

13             We review a grant of summary judgment de novo, examining the facts in the light most

14   favorable to the non-moving party and resolving all factual ambiguities in that party’s favor.

15   Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Ed., 444 F.3d 158, 162 (2d Cir. 2006). Summary

16   judgment is appropriate only if there is no genuine issue of material fact and the moving party is

17   entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

18   (1986).




     1
      Plaintiffs’ appeal from the denial of the Rule 60(b) motion was docketed as 07-3524-cv and
     consolidated with the lead appeal.

                                                        3
 1          There are many ways for a plaintiff to plead intentional discrimination in violation of the

 2   Equal Protection Clause. Brown v. Oneonta, 221 F.3d 329, 337 (2d Cir. 2000). When the instant

 3   case was before us in Pyke I, we identified three common methods:

 4                  [A] plaintiff seeking to establish a violation of equal protection by
 5                  intentional discrimination may proceed in “several ways,” including by
 6                  pointing to a law that expressly classifies on the basis of race, a facially
 7                  neutral law or policy that has been applied in an unlawfully discriminatory
 8                  manner, or a facially neutral policy that has an adverse effect and that was
 9                  motivated by discriminatory animus.
10
11   258 F.3d at 110. We noted that “[t]he present complaint sufficiently alleged each of the last two

12   theories, as it charged the discriminatory withholding of police protection because the plaintiffs

13   were Native American.” Id. In the current appeal, it seems that Plaintiffs are attempting to

14   establish a violation of equal protection by pointing to two of these theories, albeit not the same

15   two we said in Pyke I were “sufficiently alleged” in the initial complaint. First, Plaintiffs assert

16   the existence of an express classification, which was the only one of three themes mentioned in

17   Pyke I that we did not say Plaintiffs had properly pled in their original complaint.2 Second,

18   Plaintiffs attempt to show that Defendants’ actions—even if they did not amount to an express

19   classification—had a discriminatory impact and were motivated by discriminatory intent. We

20   consider each of these arguments in turn.

21          Under the Equal Protection Clause, certain “suspect” classifications are subject to strict

22   judicial scrutiny. These include classifications based on race. Loving v. Virginia, 388 U.S. 1, 11

23   (1967); see also Johnson v. California, 543 U.S. 499, 505 (2005) (holding that “all racial



     2
      Nevertheless, we assume that this argument is properly before us, notwithstanding the fact that
     (a) it was not specifically raised in Plaintiffs’ initial complaint, and (b) that the complaint was not
     amended.

                                                       4
 1   classification” imposed by government “must be analyzed by a reviewing court under strict

 2   scrutiny”). In order to satisfy strict scrutiny, a classification must further a compelling state

 3   interest and be narrowly tailored to accomplish the purpose. Shaw v. Hunt, 517 U.S. 899, 908

 4   (1996).3

 5          Plaintiffs point to three particular policies which they say involve express racial

 6   classification: (1) Defendants’ decision, at various times, to set up roadblocks at the edge of the

 7   reservation either to stop non-residents from entering the reservation or else to give them

 8   information about the ongoing strife; (2) Defendants’ policy of informing the “Warrior

 9   Society”—which Plaintiffs describe as a heavily armed Mohawk organization responsible for

10   criminal violence on the reservation, Pyke I, 258 F.3d at 108—whenever police entered the

11   reservation; and (3) the ceasing of regular patrols inside the reservation. Before undertaking to

12   evaluate these actions through the lens of strict scrutiny, we must determine whether they amount

13   to express racial classification at all. We do not think that they do.

14          First, absent some greater showing of an intent to classify based on race, the roadblocks

15   policy is saved by the fact that it was aimed at an area, not a racial class. Defendants have

16   explained that they were attempting to respect the sovereignty of the reservation, and only set up

17   border checkpoints to keep out non-residents, not non-Native Americans. That is, Defendants

18   believed, with sufficient reason, that there was a serious potential for violence on the reservation.



     3
      This heightened scrutiny may apply somewhat differently when Congress intends to benefit
     Indians as a political class. See Morton v. Mancari, 417 U.S. 535, 555 (1974) (“On numerous
     occasions th[e Supreme] Court specifically has upheld legislation that singles out Indians for
     particular and special treatment. . . . As long as the special treatment can be tied rationally to the
     fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will
     not be disturbed.”).

                                                        5
 1   Limiting access to that risky geographic area—or at least informing visitors about the risk—is no

 2   different in kind than imposing a curfew, or cordoning off a crime scene, or limiting access to an

 3   urban area during a period of riots. Of course, one might legitimately question the duration and

 4   scope of the roadblocks, but the question of whether or not the roadblocks were narrowly tailored

 5   to further the government’s compelling interest is, at this stage, the wrong inquiry. One must

 6   first show the existence of a racial classification, before one scrutinizes it strictly and asks for

 7   narrow tailoring. The duration and reasonableness of the roadblocks cannot by themselves

 8   answer that first question, unless, for example, the roadblocks were so onerous that they could

 9   only be explained as a result of racial classification or racial animus. That is not the case here.

10           Of course, the complicating factor here is that geography and race are inevitably

11   intertwined on a Native American reservation. The same may be true of other geographic areas

12   where history and development have operated to create concentrations of the kinds of social

13   groups (especially racial minorities) whose direct classification, under the Equal Protection

14   Clause, is constitutionally suspect. In such areas, seemingly neutral geographic distinctions may

15   in fact be being used as insidious proxies for suspect racial classifications. See, e.g., United

16   States v. Bishop, 959 F.2d 820, 825-26 (9th Cir. 1992) (finding that peremptory challenge based

17   upon residency in Compton, a predominately black neighborhood, “reflected and conveyed

18   deeply ingrained and pernicious stereotypes” about African-Americans). But in this particular

19   case, Plaintiffs have not produced sufficient evidence to raise a material issue on whether the

20   roadblocks were anything other than an effort—misguided or not—to contain and limit the

21   impact of the violence on a geographic area. Accordingly, the policy is not by itself an express

22   racial classification and is not subject to strict scrutiny on those grounds.


                                                        6
 1           Similarly, Defendants’ decision to notify the Warrior Society before entering the

 2   reservation in response to police calls was not an express racial classification. Viewed most

 3   favorably, the policy was simply a way for the police to avoid a potentially violent standoff with

 4   the Warriors, and perhaps even to show respect for the sovereignty of the Mohawks. Viewed at

 5   its worst, it was horribly misguided policing that effectively meant caving in to the demands of a

 6   criminal organization and ceding to it control over the protection of thousands of Mohawks. But

 7   even on this most negative reading, the notification policy was not an express racial

 8   classification.

 9           For essentially the same reasons as apply to the roadblocks and notification

10   procedure—and with the same caveats— the suspension of patrols on the reservation was also

11   not an express racial classification.

12           Having failed to show an express racial classification, Plaintiffs could nonetheless prevail

13   on their Equal Protection claims if they could demonstrate that Defendants’ actions were

14   “motivated by discriminatory animus and [their] application results in a discriminatory effect.”

15   Jana-Rock Constr., Inc. v. New York State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006)

16   (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). “Plaintiffs challenging such facially

17   neutral laws on equal protection grounds bear the burden of making out ‘a prima facie case of

18   discriminatory purpose.’” Jana-Rock, 438 F.3d at 204 (quoting Washington v. Davis, 426 U.S.

19   229, 241 (1976).

20           Assuming without deciding that Plaintiffs have shown the existence of a discriminatory

21   impact, they have nonetheless failed to proffer enough evidence of discriminatory intent to

22   survive summary judgment. We have carefully considered the testimonial and documentary


                                                      7
1   evidence Plaintiffs presented, and we conclude that it does not suffice to raise a material issue on

2   the existence of such intent. Accordingly, we find that Plaintiffs’ Equal Protection claims fail on

3   this ground as well.

4          The violence on the Mohawk reservation was an indisputable tragedy. But Plaintiffs have

5   not shown that Defendants’ attempts to avert it, however unsuccessful they might have been,

6   were a violation of the Equal Protection Clause. Accordingly, we AFFIRM the judgment of the

7   District Court.




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