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.
8