Appeal from a judgment of the United States District Court for the Northern District of New York (McCurn, J.), granting summary judgment to Defendants on Plaintiffs' Equal Protection claims. We hold that Plaintiffs have shown neither an express racial classification nor racially discriminatory intent and impact in Defendants' response to a period of violent unrest on an Indian reservation. Accordingly, the judgment is AFFIRMED.
Before: CALABRESIand WESLEY, Circuit Judges, and DRONEY, District Judge.*fn1
This case arises from widespread, violent unrest on a Mohawk Indian reservation in New York in the late 1980s and early 1990s. At issue is the response of certain New York officials to that crisis. Plaintiffs, as representatives of a class, argue that Defendants-all of whom are government officials with some responsibility for the policing of Indian lands-violated Plaintiffs' rights under the Equal Protection Clause through their inadequate and at times harmful response to the unrest on the reservation. Plaintiffs allege that Defendants' actions contributed to millions of dollars in property damage and the deaths of two young Mohawks.
The case came before our Court once before, resulting in a short opinion which vacated the district court's grant of summary judgment for Defendants and remanded for application of the proper Equal Protection standard. See Pyke v. Cuomo, 258 F.3d 107 (2d Cir. 2001) ("Pyke I"). On remand, the United States District Court for the Northern District of New York (McCurn, J.) again granted summary judgment for Defendants, finding that their actions did not amount to an Equal Protection violation and that the officials were entitled to qualified immunity. Plaintiffs appeal from this judgment and the District Court's subsequent denial of Plaintiffs' Rule 60(b) motion based on newly-discovered evidence. They argue: (a) that*fn2 disputed issues of material fact preclude summary judgment on their claims of express racial classification (what Plaintiffs call their "strict scrutiny" argument), (b) that disputed issues of material fact regarding discriminatory impact and intent preclude summary judgment even on rational basis review, and (c) that qualified immunity is inappropriate. We assume the parties' familiarity with the basic facts, which are briefly recounted in our first opinion. See Pyke I, 258 F.3d at 108.
We review a grant of summary judgment de novo, examining the facts in the light most favorable to the non-moving party and resolving all factual ambiguities in that party's favor. Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Ed., 444 F.3d 158, 162 (2d Cir. 2006). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
There are many ways for a plaintiff to plead intentional discrimination in violation of the Equal Protection Clause. Brown v. Oneonta, 221 F.3d 329, 337 (2d Cir. 2000). When the instant case was before us in Pyke I, we identified three common methods:
[A] plaintiff seeking to establish a violation of equal protection by intentional discrimination may proceed in "several ways," including by pointing to a law that expressly classifies on the basis of race, a facially neutral law or policy that has been applied in an unlawfully discriminatory manner, or a facially neutral policy that has an adverse effect and that was motivated by discriminatory animus. 258 F.3d at 110. We noted that "[t]he present complaint sufficiently alleged each of the last two theories, as it charged the discriminatory withholding of police protection because the plaintiffs were Native American." Id. In the current appeal, it seems that Plaintiffs are attempting to establish a violation of equal protection by pointing to two of these theories, albeit not the same two we said in Pyke I were "sufficiently alleged" in the initial complaint. First, Plaintiffs assert the existence of an express classification, which was the only one of three themes mentioned in Pyke I that we did not say Plaintiffs had properly pled in their original complaint. Second,*fn3 Plaintiffs attempt to show that Defendants' actions-even if they did not amount to an express classification-had a discriminatory impact and were motivated by discriminatory intent. We consider each of these arguments in turn.
Under the Equal Protection Clause, certain "suspect" classifications are subject to strict judicial scrutiny. These include classifications based on race. Loving v. Virginia, 388 U.S. 1, 11 (1967); see also Johnson v. California, 543 U.S. 499, 505 (2005) (holding that "all racial classification" imposed by government "must be analyzed by a reviewing court under strict scrutiny"). In order to satisfy strict scrutiny, a classification must further a compelling state interest and be narrowly tailored to accomplish the purpose. Shaw v. Hunt, 517 U.S. 899, 908 (1996).*fn4
Plaintiffs point to three particular policies which they say involve express racial classification: (1) Defendants' decision, at various times, to set up roadblocks at the edge of the reservation either to stop non-residents from entering the reservation or else to give them information about the ongoing strife; (2) Defendants' policy of informing the "Warrior Society"-which Plaintiffs describe as a heavily armed Mohawk organization responsible for criminal violence on the reservation, Pyke I, 258 F.3d at 108-whenever police entered the reservation; and (3) the ceasing of regular patrols inside the reservation. Before undertaking to evaluate these actions through the lens of strict scrutiny, we must determine whether they amount to express racial classification at all. We do not think that they do.
First, absent some greater showing of an intent to classify based on race, the roadblocks policy is saved by the fact that it was aimed at an area, not a racial class. Defendants have explained that they were attempting to respect the sovereignty of the reservation, and only set up border checkpoints to keep out non-residents, not non-Native Americans. That is, Defendants believed, with sufficient reason, that there was a serious potential for violence on the reservation.
Limiting access to that risky geographic area-or at least informing visitors about the risk-is no different in kind than imposing a curfew, or cordoning off a crime scene, or limiting access to an urban area during a period of riots. Of course, one might legitimately question the duration and scope of the roadblocks, but the question of whether or not the roadblocks were narrowly tailored to further the government's compelling interest is, at this stage, the wrong inquiry. One must first show the existence of a racial classification, before one scrutinizes it strictly and asks for narrow tailoring. The duration and reasonableness of the roadblocks cannot by themselves answer that first question, unless, for example, the roadblocks were so onerous that they could only be explained as a result of racial classification or racial animus. That is not the case here.
Of course, the complicating factor here is that geography and race are inevitably intertwined on a Native American reservation. The same may be true of other geographic areas where history and development have operated to create concentrations of the kinds of social groups (especially racial minorities) whose direct classification, under the Equal Protection Clause, is constitutionally suspect. In such areas, seemingly neutral geographic distinctions may in fact be being used as insidious proxies for suspect racial classifications. See, e.g., United States v. Bishop, 959 F.2d 820, 825-26 (9th Cir. 1992) (finding that peremptory challenge based upon residency in Compton, a predominately black neighborhood, "reflected and conveyed deeply ingrained and pernicious stereotypes" about African-Americans). But in this particular case, Plaintiffs have not produced sufficient evidence to raise a material issue on whether the roadblocks were ...