Crazy fire department's policy could violate the Equal Protection Clause

These allegations are shocking, but the plaintiff alleges in this Section 1983 lawsuit that a fire department in Utica, New York, restricted its firefighters from entering burning buildings inhabited by low-income residents. This practice allegedly caused needless deaths.

The case is Bush v. Brooks, a summary order decided on March 17. The district court denied the fire chief, Brooks, qualified immunity on a motion to dismiss the complaint. Here is how the Court of Appeals (Katzmann, Sack and Ramos [D.J.]) summarizes the case:

the plaintiffs allege that Brooks violated the decedents’ right to equal protection of the laws, a right guaranteed by the Fourteenth Amendment to the Constitution. Their complaint alleges that on September 20, 2009, a building located at 102 James Street in Utica, New York, was engulfed in fire. Brooks, who was Fire Chief of the City of Utica Fire Department, arrived at the scene, whereupon he informed bystanders that “he was not going to risk the lives of any members of the Department for individuals who resided on James Street.” The complaint further alleges that the fire department “adhered to a ‘don’t go in policy’ for all fires which took place at low-income properties located in the City of Utica.”

Selective enforcement of the laws can violate the Equal Protection Clause. The Second Circuit says, "we find ourselves in complete agreement with the district court that the complaint adequately alleges that the decedents were treated differently from similarly situated persons who did not reside on 'James Street,' and that the complaint 'specifically claims that defendants purposely and maliciously withheld protective services from decedents because they lived in a low-income neighborhood.'"

Interesting side note for the constitutional scholars: the Court of Appeals addresses whether the "don't go in policy" requires heightened scrutiny under the Equal Protection Clause. This is a complicated concept. Under the Clause, unequal treatment is legal if the government can articulate any rational basis for it, and by rational basis, I mean any basis whatsover so long you don't get laughed out of court. If the discrimination is based on race, gender or alienage, the government has to articulate a strong or compelling reason for the unfair treatment. We call that "strict scrutiny."

Discrimination against poor people based on income is not met with strict scrutiny. The government can get away with it by articulating a rational basis. In other words, under a Supreme Court ruling from 1973, this kind of discrimination is basically legal. In this case, however, to the extent that plaintiff argues that the policy discriminates against the indigent, that policy (if proven at trial) fails under the rational basis test. The Court says, "Taking as true the well-pleaded allegations contained in the complaint, we discern no rational basis for the fire department’s alleged policy, reflected in Brooks’s alleged statement, of withholding protective services from the decedents because they lived in a low-income neighborhood."That makes this case one of the few in which the court holds that a governmental practice fails the rational basis test.