Posted by: Patricia Salkin | July 7, 2014

Second Circuit Court of Appeals Denies Pendent Appellate Jurisdiction And Remands Qualified Immunity Question For Former Zoning Enforcement Officer

Plaintiffs Vito Savino and Savino, Inc., (jointly, “Savino”) alleged violations of their Fourteenth Amendment right to equal protection under the law by defendants the Town of Southeast and its former zoning code enforcement officer, Charles Tessmer. Defendants appealed from an order of the District Court denying their motion for summary judgment and denying Tessmer qualified immunity. Plaintiff asserted that Tessmer and the Town discriminatorily applied the facially neutral zoning laws on the basis of Savino’s Italian national origin, and that defendants selectively enforced the zoning laws against him.

The court discussed that to find whether qualified immunity existed it must decide if the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right, and, if so, was the right at issue clearly established at the time of the defendant’s actions. The District Court 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. However, 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. Accordingly this court held that summary judgment was properly denied.

Defendants also asked that the court exercise pendent appellate jurisdiction to review the District Court’s denial of summary judgment as to the Town of Southeast. The Court of Appeals found that the circumstances of this case do not justify choosing to exercise our discretionary appellate jurisdiction over the Town’s appeal. Accordingly, the court affirmed the District Court and remanded the question of qualified immunity to the District Court for further proceedings.

Savino v Town of Southeast, 2014 WL 3036081 (2nd Cir. CA 7/7/2014)

The opinion can be accessed at:

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