Northern District Judge David Hurd (See Profile) has kept alive a claim that firemen in Utica fight fires and rescue victims less aggressively in buildings with low-income residents than in more upscale dwellings. Hurd ruled that the plaintiffs have made a "plausible" case in Bush v. City of Utica, 6:12-cv-1444, of violations of their constitutional right to equal protection and allegations fire fighters were improperly trained and supervised.

The plaintiffs are the surviving relatives of four people killed in a 2009 apartment house blaze in a low-income neighborhood. They say their relatives could have been saved had firefighters immediately searched for the victims who perished in apartments at the back of the building. They contend that Fire Chief Russell Brooks told bystanders that he was not "going to risk the lives of any members of the department for individuals" in the building, according to the complaint.

Hurd wrote on June 4 the purported comment and other evidence "sufficiently" alleges that "defendants selectively withheld government services simply because decedents lived in a low-income neighborhood as opposed to a more affluent area." He added, "While discovery may ultimately undermine plaintiffs’ allegations and prove true defendants’ assertion that their conduct was not malicious but instead related to legitimate government objectives, such a legal finding is premature at this stage of the litigation."

Hurd rejected the substantive due process claims, finding there is no constitutional right to adequate fire protection services.

John Orilio and Zachary Oren are representing the city for Utica’s corporation counsel. Donald Boyajian and John Dowd of Dreyer Boyajian in Albany are representing the plaintiffs.