The case is Savino v. Town of Southeast, a summary order decided on July 7. The Court of Appeals (Cabranes, Carney and Droney) says, "As direct evidence for this discrimination, Savino points to a dispute over whether he had a proper zoning permit to install a sign. He alleges that at that time Tessmer handed him a cease-and desist order and told him, 'You Guineas think you can get away with anything.' Savino also points to two neighboring businesses he claims are similarly situated, but which were not prosecuted for zoning violations."
Whether this statement was made cannot be determined on the paper record. That's what juries are for. The town argues that a jury is unnecessary because, objectively speaking, it did not violate the plaintiff's rights. That argument works in many civil rights cases, but it does not work here. You can't brush away an alleged statement like this when you are moving for summary judgment. The court assumes the statement was made and then decides whether the defendant deserves qualified immunity. He does not.
The Court of Appeals sums it up as follows:
Assuming as we must that Tessmer made the “Guineas” comment that Savino imputes to him, there are genuine issues of material fact concerning whether Tessmer intentionally discriminated against Savino because of his Italian national origin. Given this direct evidence of discriminatory intent, the District Court properly concluded that summary judgment was inappropriate, because a reasonable juror could find that Tessmer violated the Equal Protection Clause by selectively enforcing the zoning laws against Savino, Inc., on the basis of Savino’s national origin. It is inappropriate to review that decision here. Rather, the issue of whether it was objectively reasonable for Tessmer to believe his conduct did not violate clearly established law requires resolution of genuine factual disputes as to what Tessmer’s motivations were, which cannot be resolved on this appeal.