Turner v. Dammon

848 F.2d 440, 1988 WL 53513

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 3, 1988
• Docket: No. 86-3628
• Status: Published

Opinions

WILKINSON, Circuit Judge:

Charles Dammon, Harry Edwards, Jan Roth, Walter Currence, and Joseph Casper, members of the Maryland State Police, appeal the denial of their summary judgment claim of qualified immunity from a suit brought against them under 42 U.S.C. § 1983 by Rose and John Turner, the owners of a bar known as “Rosie’s Place II.” We affirm the denial of qualified immunity as to Dammon and Edwards because the record raises a triable issue as to whether their conduct in performing a series of administrative searches at Rosie’s violated clearly established Fourth Amendment standards of which a reasonable person would have known. The record makes clear that Roth, Currence, and Casper were far less involved in the alleged unconstitutional conduct, however, and we hold that they are entitled to summary judgment based on qualified immunity.

I.

Rosie’s Place II is a topless bar in St. Mary’s County, Maryland. The record shows that between late 1982 and the filing of the Turners’ action in January 1985, the defendants and other officers of the Maryland State Police and St. Mary’s County Sheriff’s Department conducted numerous searches of Rosie’s Place and the Turners’ residence. The Turners specified several of the officers’ actions as the basis of their suit.¹ On November 5, 1982, a number of officers, including Dammon, Edwards, Casper, and Currence arrested several dancers and waitresses at Rosie’s Place for violations of the Maryland “Female Sitters” statute, Md.Ann.Code art. 27, § 152 (1983). The statute forbids employment of female “sitters” to solicit drink orders from patrons of a bar or other establishment. Rose Turner’s conviction under the statute was overturned on the ground that the statute violated the Maryland equal rights amendment, Turner v. State, 299 Md. 565, 474 A.2d 1297 (1984), and the charges against the other arrestees were dropped.

On November 19, 1982, Dammon, Edwards, Currence, and Roth, acting under a valid search warrant, entered the Turners' home in Lexington Park, Maryland. The officers seized books, records, and papers from the Turner residence as part of their investigation of the alleged Female Sitters violations.

On May 31, 1983, Dammon and Casper entered Rosie’s Place to conduct a “bar check” under Md.Ann.Code art. 2B, § 190, which provides for warrantless searches of “any building, vehicle and premises in which any alcoholic beverages are authorized to be kept, transported, manufactured or sold.” The plaintiffs allege that the officers searched through books and records, storage areas, and examined items in all parts of the premises.

Aside from these specific searches, plaintiffs allege that between late 1981 and early 1985, Dammon, Edwards, and other officers, either unnamed or not parties to the suit, entered Rosie’s at least one hundred times to conduct bar checks under Md.Ann. Code art. 2B, § 190. These checks are alleged to have occurred during the busiest hours at the bar, and to have caused patrons to leave the bar. Plaintiffs also allege that officers of the Maryland State Police and St. Mary’s County Sheriff’s Department took up positions outside Rosie’s Place to discourage patrons from entering. None of the defendants is specifically named in this allegation, however.

The defendants filed affidavits detailing their involvement in these events. Dam-mon and Edwards acknowledge that they participated in a large number of bar checks at Rosie’s, and the record indicates that at least one hundred searches were conducted during the relevant period. Dammon has admitted that more checks were conducted at Rosie’s than at any other bar, and that the checks never produced any citations or arrests. In support of these actions he has made only the statement, unsubstantiated by any records or statistics, that a disproportionate number of calls for police service came from Rosie’s.

After the Turners filed their suit, the defendants moved for summary judgment on the basis of qualified immunity. The trial court granted summary judgment with respect to each of the individual acts alleged as the basis for the plaintiffs’ claim. The court found the Female Sitters arrests supported by probable cause and made under a statute which, although later held unconstitutional, was presumably valid at the time of the arrests. The court held that the search of the Turner home was conducted pursuant to a valid warrant, and that none of the individual bar checks in themselves violated established constitutional rights. The court, however, denied the defendants’ motion with respect to the totality of the officers’ acts, which it characterized as a “pattern of harassment.” The court held that the record raised a triable issue as to whether improper motives on the part of the defendants rendered the series of bar checks a violation of the plaintiffs’ clearly established property right to “engage in any of the common occupations of life,” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, , 33 L.Ed.2d 548 (1972). From this ruling, the defendants appeal.

II.

Although an interlocutory order, the denial of a motion for summary judgment based on a claim of qualified immunity is an appealable “final decision” under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). The public official’s qualified immunity is an “entitlement not to stand trial or face the other burdens of litigation” in certain circumstances. Id. at 526,105 S.Ct. at 2816. Unlike a defense to liability, qualified immunity is “effectively lost if a case is erroneously permitted to go to trial.” Id. The immunity is intended to allow public officials to act “with independence and without fear of consequences” where their actions do not implicate clearly established rights. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982). This purpose cannot be achieved if officials face the possibility that they will have to stand trial without any opportunity for review of denials of their summary judgment claims of qualified immunity.

In reviewing the denial of a summary judgment motion based on qualified immunity, we look to the standard of immunity set forth in Harlow. Under Harlow, the summary judgment standard is one of the “objective reasonableness” of official conduct. Id. at 818, 102 S.Ct. at 2738. Officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known.” Id. Of course, if the plaintiff fails to allege “a violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2816. Where the acts alleged by the plaintiff do constitute a violation of clearly established rights, a defendant is entitled to summary judgment if the record does not create a genuine issue as to whether the defendant in fact committed those acts. Id. Employing the standard of Fed.R.Civ.P. 56, we must determine, reading the pretrial record in the light most favorable to the plaintiffs, if an issue of triable fact exists as to whether defendants’ conduct violated the plaintiffs’ clearly established rights. We thus review the defendant’s summary judgment motion under the “same standard as did the trial court.” White v. Pierce County, 797 F.2d 812, 814 (9th Cir.1986).

Following Mitchell, the circuits have taken different views on the proper scope of review of denials of qualified immunity. The First Circuit has held that reviewing courts should look only to the allegations in the plaintiff’s complaint, and determine whether those allegations describe a violation of clearly established law. Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986).² Under this view, even where a well-developed pretrial record reveals undisputed facts, the reviewing court is to ignore the record and confine itself to the allegations in the complaint. See Bonitz, 804 F.2d at 167.

We reject this approach, because it eviscerates the purposes of qualified immunity that prompted the court in Mitchell to allow these appeals. The purposes of qualified immunity are well stated in Harlow: “[w]here an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ ” Harlow, 457 U.S. at 819, 102 S.Ct. at 2739 (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed. (1967)). Qualified immunity thus protects government officials not only from liability, but from trial, in recognition of the fact that subjecting officials unnecessarily to trial leads to “distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Id. at 816, 102 S.Ct. at 2737. Mitchell therefore concluded that because qualified immunity is a right not to stand trial, the right cannot be vindicated by appellate .review after final judgment.

Vindication of the right thus requires that the court of appeals not confine itself to the complaint. Rather, we must inquire “whether, when all the facts are viewed in the light most favorable to the plaintiff, there is a genuine issue, triable to a jury,” of a clearly established constitutional violation. Wright v. South Arkansas Regional Health Center, Inc., 800 F.2d 199, 203 (8th Cir.1986); see Green v. Carl son, 826 F.2d 647, 651 (7th Cir.1987); Myers v. Morris, 810 F.2d 1437, 1459 (8th Cir.1987); Kraus v. County of Pierce, 793 F.2d 1105, 1108 (9th Cir.1986); Kennedy v. City of Cleveland, 797 F.2d 297, 298, 305-06 (6th Cir.1986); White, 797 F.2d at 814; Jasinski v. Adams, 781 F.2d 843, 846 (11th Cir.1986). Our review of this order must encompass the entire summary judgment record, i.e., the depositions, affidavits, and responses to interrogatories that we routinely canvass when the appeal is from a final order granting summary judgment. This approach will prove far fairer to public officials than “focusing only on plaintiffs’ generalized hyperbole” despite the presence of a pretrial record. Bonitz, 804 F.2d at 179 (Campbell, C.J., dissenting). It may upon occasion save plaintiffs the burden of undergoing a lengthy trial only to find that the appellate court never believed the case presented a triable issue in the first place.

A motion for summary judgment is not a motion for judgment strictly on the pleadings. Id. It will seldom be difficult for a plaintiff to plead a violation of clearly established law; to limit the scope of appellate review to plaintiffs allegations is entirely at odds with the goals of qualified immunity set forth in Harlow and Mitchell. Without immunity, government officials face skewed incentives that may drive them toward inaction: the person aggrieved by official actions may be quite willing to sue, but the losses to society as a whole that come from official inaction may be more diffuse and thus less likely to result in a lawsuit. See generally P. Schuck, Suing Government: Citizen Remedies for Official Wrongs 60-77 (1983). Qualified immunity is an attempt to redress this imbalance of incentives, and it entitles a defendant to summary judgment unless there is a genuine issue as to whether the defendant in fact committed a violation of clearly established law. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815.

III.

Our review of the summary judgment record leads us to conclude that there does exist a genuine question as to whether defendants Dammon and Edwards violated clearly established Fourth Amendment law. Accordingly we affirm the district court’s denial of summary judgment as to these two defendants.

The Turners alleged both Fourth Amendment and due process violations. The facts on the present record establish a triable issue on the Turners’ Fourth Amendment claim. The pattern of harassment alleged was a series of administrative searches purportedly conducted under Md.Ann.Code art. 2B § 190. The specific constitutional provision governing this type of activity is, of course, the Fourth Amendment, and it is to the law of search and seizure that we must turn in assessing the Turners’ claim. It is the Fourth Amendment that establishes the “process” that is due to the subjects of government searches; the specific doctrines of search and seizure, not the generalized concepts of due process, provide the relevant legal standard in this context.³

The summary judgment record unquestionably raises a genuine issue as to whether defendants Dammon and Edwards violated clearly established law in the way that they administered the series of bar checks in this case. It is undisputed on the record that Rosie’s Place was visited at least one hundred times. Officer Dammon has stated that he also conducted checks of other bars in the area, but he has produced no evidence to document any of these checks, and admits that he visited Rosie’s more frequently than any other bar. The only justification offered for this disproportionate pattern of searches is the unsubstantiated statement that a large number of police calls came from Rosie’s. Apart from the Female Sitters arrests, the record contains not a single police report documenting criminal complaints or activities, and no records of arrests.

The district court noted that “no evidence of any statistics or reports has been submitted by defendants showing a higher incidence of crime at Rosie’s Place II than anywhere else in the county. In fact, defendant Dammon admitted that no criminal complaints had been filed and no liquor violations were found in any of the bar checks at Rosie’s Place. Defendant Dam-mon explained why he went as far as cutting open liquor boxes in the storeroom, despite having never found any liquor violation, by saying, ‘... you never know when you are going to find a violation.’ ” It is this utter absence of objective justification for the highly disproportionate number of searches at Rosie’s Place that raises constitutional concerns. The two officers offer no basis from which any reviewing authority can gauge the reasonableness of their actions. That, of course, is the very definition of official lawlessness and the very behavior that the Fourth Amendment, by its express terms, forbids.

We recognize that the rules governing administrative searches are a peculiar species of Fourth Amendment law. Administrative search programs reflect the fact that important public interests may require searches conducted without traditional warrants or probable cause. The Supreme Court has thus recognized that the reasonableness of an administrative search must be subject to a flexible standard, “balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

It is not the lack of a warrant that gives rise to constitutional concerns here. War-rantless searches, such as those allowed by Md.Ann.Code art. 2B § 190, are permissible in the context of heavily regulated industries, of which liquor establishments such as Rosie’s are a prime example. See Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Harper, 617 F.2d 35, 38 (4th Cir.1980). Likewise, the absence of traditional probable cause would not invalidate the decision to conduct a particular search, for administrative searches can permissibly be conducted on the basis of a lesser justification. See Ca-mara, supra.

It is Dammon and Edward’s execution of the Maryland bar check program, not the program itself, that may be constitutionally objectionable. There is no question that the Fourth Amendment prohibition of unreasonable searches and seizures applies to the performance of administrative searches of commercial property. See Donovan v. Dewey, 452 U.S. 594, 598, 101 S.Ct. 2534, 2537, 69 L.Ed.2d 262 (1981); Colonnade Catering, 397 U.S. at 77, 90 S.Ct. at 777; Gallaher v. City of Huntington, 759 F.2d 1155 (4th Cir.1985). It is also beyond doubt that the fundamental function of this prohibition is to protect citizens from the “unbridled discretion” of government officials. See, e.g., Marshall v. Barlow’s, Inc., 436 U.S. 307, 323, 98 S.Ct. 1816, 1826, 56 L.Ed. 2d 305 (1978). Clearly at issue on the record is whether Dammon and Edwards exercised unbridled discretion in conducting, for no apparent reason, a grossly disproportionate number of searches at Rosie’s, thereby effecting the type of “unreasonable” intrusion that the Fourth Amendment forbids.

It is part of the settled law of administrative searches that they may “not be directed at particular individuals.” S. Saltzburg, American Criminal Procedure 272 (2d ed. 1984). If it were otherwise, no enterprise would enjoy constitutional recourse from the constable’s whim. The Supreme Court has emphasized that administrative search programs must be carried out in accordance with “specific neutral criteria.” Marshall, 436 U.S. at 323, 98 S.Ct. at 1826. The Court in other contexts has contrasted permissible warrantless searches such as checkpoints that apply to all subjects equally with impermissible search programs that allow officers to single out targets for search without any justification. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (condemning random automobile stops). The Court has emphasized the importance of curtailing the “discretion of Government officials to determine what facilities to search and what violations to search for,” Dewey, 452 U.S. at 605, 101 S.Ct. at 2541, and that Fourth Amendment constraints on an administrative search program require “certainty and regularity” of application, New York v. Burger, — U.S.-, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).

Some of the above cases address the question whether a warrant is required rather than the standards to be used assuming a warrantless search is applicable. The import of the statements in these opinions is clear, however, and a prior holding in “identical circumstances” is not necessary for the law to have been clearly established. See Mitchell, 472 U.S. at 535 n. 12, 105 S.Ct. at 2820 n. 12. The basic standards governing administrative searches condemn the baseless isolation of a single establishment for grossly disproportionate intrusions. Where, as here, a valid administrative search program authorizes war-rantless inspection but provides no rules governing the procedure that inspectors must follow, “the Fourth Amendment and its various restrictive rules apply.” Colonnade Catering, 397 U.S. at 77, 90 S.Ct. at 777. The cases upholding warrantless administrative searches clearly establish that these rules require certainty, regularity, and neutrality in the conduct of the searches. Burger, 107 S.Ct. at 2648; Dewey, 452 U.S. at 605, 101 S.Ct. at 2541.

The Fourth Amendment delimits the presence of public authority on private premises, for the simple reason that uncau-tioned authority is open to abuse. The danger of abuse is greater for establishments such as Rosie’s which, though licensed by law, may be the objects of public suspicion and obloquy. The rule governing administrative searches has been well stated by two leading commentators: administrative searches may permissibly be conducted either “upon a reasonable showing in the individual case of reasonable suspicion short of traditional probable cause, or upon a showing that the individual case arose by application of standardized procedures involving neutral criteria.” W. La-Fave & J. Israel, Criminal Procedure § 3.9 at 188 (1985). No reasonable officer could possibly have believed that the Fourth Amendment allows over one hundred searches of one particular bar with no objective basis.

Nothing herein is intended to impair the inspection of establishments that sell alcoholic beverages. The burden on law enforcement officials in conforming their conduct to Fourth Amendment standards is not great in the area of traditionally regulated industries. Had the officers here established that the bars in the area were subject to random checks on a roughly equivalent basis, it could not be said that the checks violated “clearly established” law. The same would be true if the record established that the large and disproportionate number of searches at Rosie’s was objectively supported by numerous arrests, by reports of criminal activity there, or even by logs detailing the subject of complaints by patrons, passersby, or neighboring establishments to which the officers had responded. At this point, however, the record contains only Dammon’s unsubstantiated statements in support of an egregiously disproportionate number of searches.

We hold that on this record Dammon and Edwards are not entitled to qualified immunity and that an issue of triable fact as to these defendants’ violation of settled Fourth Amendment principles appears to have been presented. Indeed, if no supplementary explanation of the defendants’ conduct is added to the record, the district court may wish to entertain a motion for partial summary judgment as to liability on the plaintiffs’ Fourth Amendment claim. It may later be determined that there is sufficient evidence to justify the actions alleged by the Turners and apparently acknowledged by Dammon and Edwards. That is not the case on the present record, however, and the trial court properly denied Dammon and Edwards’ summary judgment motions.

IV.

Roth, Currence, and Casper were far less involved in the allegedly unconstitutional searches, however, and the summary judgment record establishes their entitlement to qualified immunity.

It is undisputed on the record that defendant Roth participated only in the execution of the search warrant at the Turner home on November 19, 1983. The trial court found that because the search was conducted pursuant to a valid warrant, the officers were entitled to immunity from any claim arising out of this search based upon the objective reasonableness of their conduct. See Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Because Roth is alleged to have participated only in this search, there is certainly no genuine issue as to whether he violated clearly established law.

Similarly, defendant Currence participated only in the search of the Turner home and the Female Sitters arrests. The Female Sitters arrests were undisputedly made on probable cause and pursuant to a statute that was presumptively valid at the time. They cannot, therefore, be the basis of a valid § 1983 claim. See Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974). Currence’s level of participation in the events involving the Turners does not raise a genuine issue as to whether he violated clearly established law.

Finally, defendant Casper is alleged to have participated only in the Female Sitters arrests and in a single bar check on May 31, 1983. His affidavit acknowledges that he participated in “a number of bar checks.” This record does not reveal a genuine issue as to whether Casper violated clearly established law. Our holding that an issue of violation of clearly established law exists as to Dammon and Edwards, despite the Fourth Amendment deference due searches of liquor establishments, is largely based on the egregious facts of their specific cases. Neither the allegations nor the affidavits in the record suggests that Casper was involved in comparable conduct.

The denial of summary judgment as to defendants Dammon and Edwards is affirmed. The denial of summary judgment as to defendants Roth, Currence, and Cas-per is reversed, and we remand to the district court for entry of judgment in their favor.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

1 . The Turners’ suit originally included as defendants William Bell and James Goldsmith of the St. Mary’s County Sheriffs Department. Because they have been dismissed from the suit, we do not address any of the allegations directed specifically at them.

2 . This view focuses on language in Mitchell which states that an “appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of plaintiffs version of the facts" and that “the appealable issue is a purely legal one: whether the facts alleged by the plaintiff (or in some cases the defendant) support a claim of violation of clearly established law.” 472 U.S. at 528 & n. 9, 105 S.Ct. at 2816 & n. 9. Although this part of the Mitchell opinion describes the precise issue presented in Mitchell — the defendant accepted the plaintiff’s allegations, and challenged solely the characterization of the law as “well established” — we do not believe that it establishes a limitation on all reviews of denials of qualified immunity.

3 . The dissent would apply a due process analysis turning on the defendants’ alleged unconstitutional motive. We believe that the facts of this case make such an approach inappropriate. Where specific constitutional standards, here those of the Fourth Amendment, are applicable to alleged conduct, it is those standards by which a plaintiffs’ claim is properly judged. The Supreme Cotut has clearly endorsed this view in the context of qualified immunity:

[T]he right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right_ But if the test of "clearly established law” were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unlimited liability simply by alleging violation of extremely abstract rights.

Anderson v. Creighton, — U.S.-, 107 S.Ct. 3034, 3039, 97 L.Ed. 523 (1987). This case concerns the propriety of an administrative search, subject to the objective standards of the Fourth Amendment, rather than the “extremely abstract rights” asserted here under the Due Process Clause. Plaintiffs are not entitled to assert a Fifth or Fourteenth Amendment due process right to “engage in business" should their Fourth Amendment claims fail. Such a right would be akin to that in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), and its progeny, which the Supreme Court has long since refused to recognize.

The dissent suggests that our opinion leaves the district court without necessary guidance on the issue of “subjective good faith.” We have not discussed the defendants’ subjective motives, however, because they simply are not relevant to the proper analysis in this case either now or at a possible later trial.

In this Fourth Amendment context, as in any other, "subjective good faith" simply will not be part of the qualified immunity inquiry. The relevant question, as stated by the Supreme Court in Anderson, is "the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Anderson’s subjective beliefs about the search are irrelevant.” Id. 107 S.Ct. at 3040.

The dissent correctly points out that in some cases, motive or intent will be relevant despite the presence of a qualified immunity issue. This is so because intent, such as purposeful racial discrimination or class based animus, is in those cases an aspect, not of the qualified immunity inquiry, but of the cause of action itself. See, for example, the cases cited by the dissenting opinion at note 8, infra. This is not such a case. Fourth Amendment claims rise or fall on the objective reasonableness of the searches conducted, not on the underlying intent or motivation. See W. LaFave, Search and Seizure § 1.2(g) (Supp.1986).