Second Circuit Remands Qualified Immunity Question For Former Zoning Enforcement Officer

Plaintiffs Vito Savino and Savino, Inc. alleged violations of Equal Protection by Defendants Town of Southeast and 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 Defendants discriminatorily applied facially neutral zoning laws on the basis of Savino's Italian national origin, and that Defendants selectively enforced the zoning laws against him.

On appeal, the Second Circuit noted that entitlement to qualified immunity at the summary judgment stage depends on whether the facts, viewed in the light most favorable to the plaintiff, showed that the officer's conduct violated a constitutional right, and, if so, that the right was clearly established at the time. The District Court found that it is unreasonable to believe applying or enforcing a law based on someone's national origin does not violate the Fourteenth Amendment, or that reasonable officials could disagree on this. Even so, the remaining question of material fact — Defendant’s motivations and whether he actually made a comment about “Guineas”— go both to whether he is entitled to qualified immunity and whether Savino's equal protection rights were in fact violated. Accordingly, the court held that summary judgment was properly denied and remanded the case for further proceedings.

The case was Savino v Town of Southeast, 572 Fed. Appx. 15 (2nd Cir. 2014).

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