Club Retro LLC v. Hilton ( 2009 )

REVISED JUNE 5, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 6, 2009
No. 08-30512
Charles R. Fulbruge III
Clerk
CLUB RETRO LLC; LYLE K DOUBLET, Individually and as Manager, on
behalf of Club Retro LLC; ERICA L DOUBLET Individually and on behalf of
Olivia Lynn Marie Doublet; DAR J DOUBLET; CHRISTINE A SMITH,
Individually and on behalf of Carley A Smith; RONNIE M MABOU;
JONATHAN K FROST
Plaintiffs - Appellees
v.
WILLIAM EARL HILTON, Individually and in His Official Capacity as
Sheriff of Rapides Parish; MICHAEL SLOCUM, Individually and In His
Official Capacity as a Deputy Sheriff of Rapides Parish; RICKY DOYLE,
Individually and in His Official Capacity as a Deputy Sheriff of Rapides
Parish; MICHAEL LACOUR, Individually and in His Official Capacity as a
Deputy Sheriff of Rapides Parish; JAMES RAULS, Individually and In His
Official Capacity as a Deputy Sheriff of Rapides Parish
Defendants - Appellants
Appeal from the United States District Court
for the Western District of Louisiana
Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
KING, Circuit Judge:
Defendants, the Sheriff of Rapides Parish and four deputy sheriffs, appeal
the district court’s denial of qualified immunity for their involvement in
“Operation Retro-Fit,” a preplanned, violent S.W.A.T. team raid of a nightclub,
No. 08-30512
Club Retro, on February 5, 2006. As a result of events that occurred during that
raid, plaintiffs, owners and select employees of Club Retro, bring 42
U.S.C. § 1983 and state law claims against those five officers in their individual
and official capacities. Relevant to this appeal, they allege that defendants’
planning, approving, and executing Operation Retro-Fit violated their First,
Fourth, Fifth, and Fourteenth Amendment rights. Defendants moved to dismiss
the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
asserting, inter alia, qualified immunity as an affirmative defense to the
individual-capacity claims. The district court rejected the defense of qualified
immunity for all but a few of plaintiffs’ claims. It, however, granted qualified
immunity for plaintiffs’ due process claims, which it dismissed without prejudice.
Defendants bring this interlocutory appeal challenging the district court’s
denials of qualified immunity and decision to dismiss the due process claims
without prejudice. For the following reasons, we affirm the district court’s order
in part, reverse in part, and remand.
I. PROCEDURAL BACKGROUND AND FACTUAL ALLEGATIONS
A. Procedural History
A year after enduring the raid on Club Retro, plaintiffs Club Retro, L.L.C.;
Lyle K. Doublet; Dar J. Doublet; Erica L. Doublet, individually and on behalf of
her minor daughter, Olivia Lynn Marie Doublet; Christine A. Smith,
individually and on behalf of her minor daughter, Carley A. Smith; Jonathan K.
Frost; and Ronnie M. Mabou filed a federal lawsuit. Their complaint alleged,
inter alia, § 1983 claims of violations of their freedoms of expression, association,
and assembly under the First Amendment, unlawful search and seizure and
false arrest under the Fourth Amendment, and equal protection and due process
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No. 08-30512
violations under the Fourteenth Amendment.1 They alleged these claims against
defendants Rapides Parish Sheriff William Hilton and Rapides Parish deputy
sheriffs Michael Slocum, Ricky Doyle, Michael LaCour, and James Rauls, acting
in their individual and official capacities. Defendants immediately moved to
dismiss the complaint under Rule 12(b)(6) on various grounds, including
qualified immunity for the federal constitutional claims against them in their
individual capacities. Plaintiffs responded to the motion to dismiss by filing a
response and a motion to amend or correct their complaint. The court referred
the motion to dismiss and motion to amend or correct the complaint to a
magistrate judge. The magistrate judge granted plaintiffs’ motion to amend or
correct their complaint. Plaintiffs filed a supplemental and amending complaint
which amended parts of the complaint (collectively, the “amended complaint”),
and defendants reasserted their motion to dismiss.
The magistrate judge issued a report recommending that the district court
grant in part and deny in part the motion to dismiss. It stated, inter alia, that
the district court should reject the defense of qualified immunity (1) to all
defendants for plaintiffs’ Fourth Amendment unreasonable search and seizure
claims; (2) to deputy sheriffs Slocum and Doyle for Dar’s, Lyle’s, and Erica’s
Fourth Amendment false arrest claims; and (3) to Sheriff Hilton and deputy
sheriffs Slocum, LaCour, and Rauls for plaintiffs’ Fourteenth Amendment equal
protection claims. On the other hand, the magistrate judge recommended
dismissal of Club Retro’s, Lyle’s, and Dar’s First Amendment and plaintiffs’ due
process claims based on qualified immunity. After the parties filed objections to
1
The complaint also alleged, inter alia, false arrest, defamation, and business
interference in violation of state laws.
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No. 08-30512
the report and recommendation, the district court entered judgment, adopting
most of the magistrate judge’s recommendations but—without substantial
comment—refusing to dismiss the First Amendment claims. The district court
dismissed without prejudice plaintiffs’ due process claims.
Defendants filed a timely appeal. Because this case comes to us on appeal
from the district court’s order denying defendants’ motion to dismiss, we
consider the facts that plaintiffs set forth in their amended complaint.
B. Factual Allegations
Lyle and Dar Doublet were the owners of Club Retro, L.L.C., a business
enterprise that owned and operated Club Retro, a nightclub located in
Alexandria, Louisiana. Lyle managed Club Retro, L.L.C. Lyle and Dar are
Creole, and Club Retro’s clientele was mixed-race. Before opening to the public
in October 31, 2005, Club Retro passed various inspections and received permits
to serve alcohol. As part of the inspection process, the state fire marshal set
Club Retro’s capacity at 680 persons. Lyle and Dar also confirmed that they
could permit persons under the age of twenty-one but over the age of eighteen
in the club, so long as they did not serve them alcohol. While deputy sheriff
Slocum and assistant district attorney Thomas B. Searcy stated that the matter
was a “grey” area, Searcy received confirmation from District Attorney James
C. Downs that it was permissible.
On January 21 and 28, 2006, two Rapides Parish deputy sheriffs checked
Club Retro to ensure that the doors were locked and closed at 2:00 a.m. On
January 21, after Lyle and Dar protested, the officers left and promised to return
with a copy of the applicable ordinance. A few days later, the Doublets visited
the office of the Rapides Parish Sales and Use Tax Department where they
confirmed that Club Retro could remain open after 2 a.m. on Sunday mornings
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No. 08-30512
if they stopped selling and prevented patrons from consuming alcohol after 2
a.m. The following weekend, despite the Doublets’ protestations, a deputy
sheriff and his lieutenant ordered the club closed, and the Doublets complied
with their order.
On the night of Saturday, February 4, 2006, and into the early hours of
Sunday, February 5, 2006, Club Retro hosted a number of popular hip hop
artists. Club Retro hired private security guards to search all patrons entering
the club.2 At approximately 12:15 a.m. Sunday morning, the club was crowded
with approximately 500 patrons when persons waiting in line outside of the club
crashed through the front door, pursued by forty Rapides Parish deputy
sheriffs—some outfitted in full S.W.A.T. gear and black ski masks—who stormed
Club Retro with shotguns, AR-15 assault rifles, and pistols drawn and pointed
at both patrons and employees. At least one patron was injured in the chaos
near the entranceway when a deputy sheriff “stomped” on her leg. Once inside
the club, the officers forced many patrons to the ground at gunpoint, and the
deputy sheriffs may have used tasers on club patrons.
The deputy sheriffs were acting pursuant to Operation Retro-Fit, a plan
authorized by Sheriff Hilton; written, supervised, and executed by deputy
sheriffs Slocum, LaCour, and Rauls; and supervised and executed by deputy
sheriff Doyle. The sheriffs memorialized Operation Retro-Fit in a written plan
that plaintiffs have attached to their complaint. The plan called for a
2
A sign posted in the entranceway stated: “NO! Firearms, weapons, NO! loitering, NO!
outside drinks, all persons subject to search!” Signs posted inside and near the bathrooms
stated:
Anyone caught with drugs will be escorted off the premises & possible arrest!!!
There will be a $50.00 reward for anyone turning in information leading up to
the arrest of anyone affiliated with the possession, selling, or buying of any
illegal substances @ Club Retro, L.L.C.
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No. 08-30512
warrantless raid on Club Retro using a S.W.A.T. team for the purposes of
detecting the sale or possession of illegal narcotics, the sale of alcohol to minors,
and fire code violations. The deputy sheriffs would be assisted by officers from
the Metro Narcotics Unit, a K-9 Unit, the Louisiana Department of Revenue
Office of Alcohol and Tobacco Control, and Louisiana Probation and Parole.
As soon as the raid began, the deputy sheriffs seized, assaulted, battered,
and handcuffed Lyle and Dar, who were then transported to a warehouse
holding facility and held for over six hours. Several hours later, Slocum had
Judge John C. Davidson of the Ninth Judicial District Court for Rapides Parish
sign arrest warrants against Lyle and Dar, based on affidavits sworn by LaCour.
Although Judge Davidson initially refused because of the lack of probable cause
on the night of the raid, he eventually relented and signed the warrants. The
crime identified in both warrants was keeping Club Retro open past 2:00 a.m.
on January 4, 2006, in violation of Louisiana Revised Statutes Annotated
§ 33:1236(6). The warrants additionally state that deputy sheriffs warned Lyle
and Dar on January 27 and 28, 2006, that they were operating in violation of the
law.3
Because of the scale and ferocity of the raid, many of Club Retro’s
employees thought that they were being robbed by armed gunmen. A deputy
sheriff hurled himself across the bar into the bartending area and pushed
bartender Krista Frost to the ground with a gun pointed at her head. Jonathan
Frost, another bartender, was chased, thrown to the ground, and stepped on by
a deputy sheriff after Jonathan held up his hands to surrender. The deputy
3
January 4, 2006 was a Wednesday; January 27, 2006 was a Friday; and January 28,
2006 was a Saturday.
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No. 08-30512
sheriff then pressed a 9mm pistol against Jonathan’s neck as he searched him.
Another deputy sheriff forced Christine Smith, a manager of Club Retro, to the
ground at gunpoint and searched her. When masked officers reached the stage,
they slammed the performers to the ground or the wall. Matt Mabou, Club
Retro’s disc jockey, looked up from his stereo equipment into the barrel of a gun.
The deputy sheriff on the other end of the gun forced Mabou to turn the music
off and the lights on and then searched him at gunpoint. The deputy sheriffs
also rounded up Club Retro’s other staff members at gunpoint and searched and
detained them. The deputy sheriffs handcuffed some of the staff, and one of the
staff members was hit on the head with a rifle butt.
The deputy sheriffs and other officers blocked all points of exit. They
searched every patron and employee and required most patrons to walk by drug-
sniffing dogs. As part of the search, some women were instructed to reach under
their shirts, lift up their bras, and shake them so the deputy sheriffs could see
if any illegal drugs would fall out. The deputy sheriffs separated patrons over
twenty-one years of age from patrons between eighteen and twenty-one years of
age. One-hundred-twenty-one patrons between the ages of eighteen and twenty-
one were given citations for being in an alcohol-serving establishment. The
parties dispute the lawfulness of those citations under Louisiana law. See
infra n.24. At most seven patrons—approximately one percent of the total
number of patrons—were arrested for drug-related crimes. The deputy sheriffs
also announced to the patrons that they should never come back unless they
wanted to risk another raid. They detained the patrons and employees between
three and five hours and denied them access to the restrooms for a long period
of time, during which some patrons urinated in empty bottles and one patron
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No. 08-30512
fainted. Eventually, deputy sheriffs permitted some persons to use the
restrooms if escorted by an official.
The deputy sheriffs proceeded to search the entire club, including the attic.
Cash was confiscated from the registers. Mirrors, the cash registers, and the
office areas were trashed. An armed officer kicked down the door to a separate,
attached apartment that was protected by a security guard and not open to the
public. Lyle and Erica resided in the apartment on nights when the club was
open. Inside the apartment were plaintiff Olivia Doublet, Erica’s minor
daughter, and her two babysitters, one of whom was plaintiff Carley Smith,
Christine’s minor daughter. The officer pinned Carley against the wall and then
forcibly removed the three girls from the room. The deputy sheriffs brought the
girls into the bar area, placed them on stools, and photographed them as if they
were bar patrons. Olivia had been sleeping and was in her pajamas at the time.
Erica and Christine attempted to reach their daughters, but the officers denied
them access. Slocum and another unnamed deputy sheriff announced that both
girls would be taken by the Louisiana Department of Social Services Office of
Community Services (“OCS”). After Erica explained that the girls had been
removed from the private apartment and Slocum realized that OCS was not
going to take the girls, he told an officer to arrest Erica for gun possession. Erica
was cuffed and removed to the same holding facility as Lyle and Dar. The
deputy sheriffs transported Christine, Olivia, Carley, and the other babysitter
with Erica, and briefly detained them at the holding facility, but Christine was
eventually allowed to leave with the three girls.
At the holding facility, Slocum and LaCour placed Erica in the room with
Lyle and Dar, where all three were handcuffed to their chairs. Slocum and
LaCour made threatening and obscene comments to her, including threats of
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No. 08-30512
sexual assault. Earlier, during the preliminary stages of the raid, Slocum had
looked at Erica, who is Caucasian, and said, “And you think you are white? You
are not f---ing white.” Slocum and LaCour also threatened Lyle and Dar.
Tensions rose until Dar, an Iraq war veteran, commented, “After I have served
a tour of duty in Iraq, I come home to this and experience terrorism in my own
country.” At that point, Slocum and Doyle ceased their threats, and tensions
eased.
Because the deputy sheriffs’ search of Club Retro produced handguns that
Lyle and Dar kept in the club’s office, Slocum and Doyle arrested Lyle, Dar, and
Erica for possessing firearms in an alcohol retail establishment. In addition, the
fire marshal estimated that, at the time of the raid, there were 822 people in
Club Retro, so Slocum and Doyle charged Lyle and Dar with violating the fire
marshal’s order limiting Club Retro’s capacity. The officers’ count of cash in the
cash registers used for the entry fees—a count that was captured on
video—evidenced that there were not more than 500 people in the club when it
was raided.
Doyle booked Lyle, Dar, and Erica at the Rapides Parish detention center.
He charged Lyle and Dar with “GENERIC CHARGE-CHGE LATER,”
“FIREARM POSSESSION/BAR,” and “FAILURE TO COMPLY FIRE MARSH.”
He booked Erica for “IMPROPER SUPERVIS. OF MINOR” and “FIREARM
POSSESSION/BAR.” Within a week, Lyle and Dar were arrested a second time
and charged with allowing persons aged between eighteen and twenty-one years
into Club Retro.
On the night of the raid, Club Retro advertised a performance by Paul
Wall that was to take place the following Saturday, February 11, 2006. That
Saturday night, a fire marshal and two Rapides Parish deputy sheriffs entered
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No. 08-30512
Club Retro and stayed until the concert started. Two other deputy sheriffs
parked their patrol cars conspicuously in Club Retro’s parking lot for the
duration of the evening. Many potential patrons who intended to attend the
concert did not do so—some were seen driving into the parking lot where the
patrol cars were parked and then departing. They did not want to experience a
repeat of the events of February 5 and 6. Only sixty-seven patrons attended the
concert.
About one-half mile down the road from Club Retro was GG’s, a long-
established, white-owned nightclub with a white clientele. GG’s has never been
raided in a manner similar to Operation Retro-Fit.
II. DISCUSSION
A. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s
denials of qualified immunity. The denial of a motion to dismiss predicated on
a defense of qualified immunity is a collateral order capable of immediate
review. See Behrens v. Pelletier, 516 U.S. 299, 307 (1996) (holding that “an order
rejecting the defense of qualified immunity at . . . the dismissal stage . . . is a
‘final’ judgment subject to immediate appeal”). Our jurisdiction, however, is
severely curtailed: “we are restricted to determinations ‘of question[s] of law’
and ‘legal issues,’ and we do not consider ‘the correctness of the plaintiff’s
version of the facts.’” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251–52 (5th
Cir. 2005) (alteration in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528
(1985)).
Within our limited jurisdiction, we review de novo defendants’ invocations
of qualified immunity. Id. at 252; Rios v. City of Del Rio, 444 F.3d 417, 420 (5th
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No. 08-30512
Cir. 2006). We must accept all well-pleaded facts as true, draw all inferences in
favor of the nonmoving party, and view all facts and inferences in the light most
favorable to the nonmoving party. Atteberry, 430 F.3d at 252. To resist
dismissal, plaintiffs must plead “enough facts to state a claim for relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
B. Qualified Immunity
Plaintiffs’ § 1983 claims seeking damages from defendants in their
individual capacities are subject to the affirmative defense of qualified
immunity. “The doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)).
When a defendant invokes qualified immunity, the burden shifts to the
plaintiff to demonstrate the inapplicability of the defense. McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). To discharge this burden,
“a plaintiff must satisfy a two-prong test.” Atteberry, 430 F.3d at 253. “First, he
must claim that the defendants committed a constitutional violation under
current law.” Id. (citing, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999)).
“Second, he must claim that the defendants’ actions were objectively
unreasonable in light of the law that was clearly established at the time of the
actions complained of.” Id.4 “To be ‘clearly established’ for purposes of qualified
immunity, ‘[t]he contours of the right must be sufficiently clear that a reasonable
4
In Pearson, 129 S. Ct. at 821, the Supreme Court relaxed the requirement, established
in Saucier v. Katz, 533 U.S. 194 (2001), that we must decide if a constitutional violation
occurred before we decide if the law was clearly established.
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No. 08-30512
official would understand that what he is doing violates that right.’” Kinney v.
Weaver, 367 F.3d 337, 349–50 (5th Cir. 2004) (en banc) (alteration in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The central concept
is that of ‘fair warning’: The law can be clearly established ‘despite notable
factual distinctions between the precedents relied on and the cases then before
the Court, so long as the prior decisions gave reasonable warning that the
conduct then at issue violated constitutional rights.’” Id. at 350 (quoting Hope
v. Pelzer, 536 U.S. 730, 740 (2002)). We apply these standards to defendants’
assertions of qualified immunity regarding their alleged (1) entry and search of
Club Retro; (2) arrests of Lyle, Dar, and Erica; (3) searches and seizures of the
individual plaintiffs; (4) infringements of Club Retro, L.L.C.’s, Lyle’s, and Dar’s
free speech and association rights; and (5) discrimination.5
1. Entry and Search of Club Retro
Based on the allegations of the amended complaint, we conclude that
defendants are not entitled to qualified immunity for their entry and search of
Club Retro because the unreasonable scope and manner of Operation Retro-Fit
5
Although plaintiffs’ allegations describe defendants’ treatment of Club Retro’s patrons,
plaintiffs do not allege any claims on behalf of those patrons and readily acknowledge that they
lack standing to bring such claims. See Rakas v. Illinois, 439 U.S. 128, 133–34 (1978) (“‘Fourth
Amendment rights are personal rights which, like some other constitutional rights, may not
be vicariously asserted.’” (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)); San
Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 704 (5th Cir. 1991) (“Because the record in this
case is devoid of any evidence that [the plaintiff] was personally subjected to an illegal search
or seizure, [the plaintiff] has no standing to assert the rights of third parties who may have
been subjected to such searches or seizures while at [the plaintiff’s store].”). Nonetheless, these
allegations are relevant to certain matters that are before us, such as whether defendants’
conduct exceeded the scope of a proper administrative search, see, e.g., Bruce v. Beary, 498 F.3d
1232, 1244 n.22 (11th Cir. 2007), and may be relevant to other issues not before us, such as
causation of Club Retro’s business losses, if any.
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No. 08-30512
violated Club Retro, L.L.C.’s clearly established constitutional rights to be free
from unreasonable searches and seizures.6
a. Constitutional Violations
As alleged in the amended complaint, the entry and search of Club Retro
violated Club Retro, L.L.C.’s Fourth Amendment right to operate its commercial
property free from unreasonable searches and seizures. The Fourth Amendment
ensures that “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause.” The Supreme
Court long ago “recognized that the Fourth Amendment’s prohibition on
unreasonable searches and seizures is applicable to commercial premises.” New
York v. Burger, 482 U.S. 691, 699 (1987). Absent a warrant, consent, or other
exigent circumstances, law enforcement officers act unreasonably and thus
unconstitutionally when they enter a commercial property to conduct a search
for contraband or evidence of a crime. Donovan v. Dewey, 452 U.S. 594, 598 n.6
(1981) (citing G.M. Leasing Corp., 429 U.S. at 352–359). Defendants do not
argue that they acted pursuant to a warrant, probable cause, or exigent
circumstances; instead, they base the reasonableness of their entry and search
of Club Retro on two alternative theories: (1) that they had the same right to
enter the club as any other patron, and (2) that they conducted a permissible
administrative inspection. Neither theory renders Operation Retro-Fit a
reasonable search, and precedent existing at the time of the searches shows that
it was unreasonable.
6
Lyle has brought claims both individually and as a manager on behalf of Club Retro,
L.L.C., which has standing to maintain these claims. See G.M. Leasing Corp. v. United States,
429 U.S. 338, 352–59 (1977) (recognizing a corporation’s Fourth Amendment rights).
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No. 08-30512
i. Public Establishments
We are not convinced by defendants’ argument that they had the same
right to enter the club as any other patron. Although defendants would have
been free to accept the open public invitation that Club Retro gives to every
patron, enter Club Retro, and observe the club and persons therein, defendants’
entry and search of Club Retro and its owners, employees, and patrons far
exceeded the scope of any public invitation. In Lewis v. United States, 385 U.S.
206 (1966), the Supreme Court held that “[a] government agent, in the same
manner as a private person, may accept an invitation to do business and may
enter upon the premises for the very purposes contemplated by the occupant.”
Id. at 211. This is not an unbounded grant of authority, however: “this does not
mean that, whenever entry is obtained by invitation and the locus is
characterized as a place of business, an agent is authorized to conduct a general
search for incriminating materials . . . .” Id. (citing Gouled v. United States, 255
U.S. 298 (1921)); accord State v. Lund, 409 So. 2d 569, 570 (La. 1982) (upholding
an arrest where officers entered a club and only then “became inadvertent
witnesses to criminal conduct”).
The principal case relied on by defendants, State v. Dobard, 824 So. 2d
1127 (La. 2002), describes some boundaries and supports our conclusion. In
Dobard, police officers entered a bar wearing plain clothes for the purpose of
conducting a “vice check.” Id. at 1129. After announcing their presence and
approaching a patron, that patron acted suspiciously by visibly discarding an
object in his possession and retreating from the officers. Id. The officers seized
the patron and retrieved the object, which they later confirmed to be crack
cocaine. Id. The Louisiana Supreme Court upheld the resulting arrest: the
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No. 08-30512
officers had specific, articulable facts justifying the seizure of the defendant. Id.
at 1133.
As permitted by Lewis, the officers’ presence in the bar was constitutional:
a police officer may accept a bar’s invitation to the public and enter for “any
reason or no reason.” Dobard, 824 So. 2d at 1132. “[T]he officers were in a place
they had a right to be and possessed the same right as any citizen to approach
an individual and engage him in conversation.” Id. The Louisiana court,
however, narrowly limited the scope of this holding. It held that the officers
“had no authority whatsoever to enter a bar and search its patrons for narcotics.”
Id. at 1131. “Had the officers been searching defendant’s person for narcotics
based solely on the fact it [sic] was conducting a so-called ‘vice check,’ then any
contraband recovered would clearly be inadmissible in a subsequent
prosecution.” Id. It also noted that the officers had not “drawn their weapons,
physically contacted defendant, ordered or signaled him to stop, or otherwise
asserted any official authority over him when he panicked and discarded the
contraband.” Id. at 1132–33 (citations omitted). Thus, accepting a public
invitation is permissible, but, absent cause, does not justify searches once inside
the commercial establishment.
It is clear from these qualifications that defendants in this case could not
reasonably rely on Dobard to justify the scope of Operation Retro-Fit. Taking
plaintiffs’ factual allegations as true, defendants did not enter Club Retro as
would a typical patron; instead, they chose to project official authority by
entering with weapons drawn in a S.W.A.T. team raid. They lacked any
particularized suspicion or probable cause when they subsequently searched
Club Retro, its attic, and the separate apartment and seized and searched all of
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No. 08-30512
its patrons and employees. Thus, defendants’ entry and search was not a
reasonable acceptance of Club Retro’s invitation to the public. Any other
conclusion would be an invitation for S.W.A.T. team raids by law enforcement
officers of any business that is open to the public and would severely undermine
the Fourth Amendment protections afforded to owners of commercial premises.
ii. Administrative Inspections
We are likewise not convinced by defendants’ second argument that they
conducted a permissible administrative inspection. Although Louisiana statutes
and Rapides Parish ordinances authorizing administrative inspections may have
provided justification for an entry and inspection of Club Retro, no such law
permits the scope and manner of the raid that plaintiffs allege occurred here.
It is true that a commercial property owner’s Fourth Amendment rights are
“particularly attenuated in commercial property employed in ‘closely regulated’
industries.” Burger, 482 U.S. at 700. The liquor industry has been a closely
regulated industry. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77
(1970). The owner of a liquor establishment’s attenuated Fourth Amendment
interests “may, in certain circumstances, be adequately protected by regulatory
schemes authorizing warrantless inspections.” Donovan, 452 U.S. at 599;
Colonnade Catering Corp., 397 U.S. at 77; see also Delaware v. Prouse, 440 U.S.
648, 654–55 (1979); Bruce, 498 F.3d at 1248 (“Under certain limited
circumstances, the Constitution permits warrantless administrative searches.
It never permits unreasonable ones.”).
To avoid constitutional infirmity, a regulation providing for warrantless
inspections of a pervasively regulated business must meet three criteria: (1)
“there must be a ‘substantial’ government interest that informs the regulatory
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No. 08-30512
scheme pursuant to which the inspection is made”; (2) “the warrantless
inspections must be ‘necessary to further [the] regulatory scheme’”; and (3) “‘the
statute’s inspection program, in terms of the certainty and regularity of its
application, [must] provid[e] a constitutionally adequate substitute for a
warrant.’” Burger, 482 U.S. at 702–03 (alterations in original, citations omitted).
Only the third criterion is at issue in this case. To satisfy this third criterion,
“the regulatory statute must perform the two basic functions of a warrant: it
must advise the owner of the commercial premises that the search is being made
pursuant to the law and has a properly defined scope, and it must limit the
discretion of the inspecting officers.” Id. at 703. To put the owner on proper
notice under the first function, “the statute must be ‘sufficiently comprehensive
and defined that the owner of commercial property cannot help but be aware
that his property will be subject to periodic inspections undertaken for specific
purposes.’” Id. (quoting Donovan, 452 U.S. at 600). To limit officer discretion
under the second function, the regulation must carefully limit authorized
inspections “‘in time, place, and scope.’” Id. (quoting United States v. Biswell,
406 U.S. 311, 315 (1972)); see also United States v. Harris Methodist Ft. Worth,
970 F.2d 94, 101–02 (5th Cir. 1992).
Even under a valid inspection regime, the administrative search cannot
be pretextual. See Burger, 482 U.S. at 724 (“In the law of administrative
searches, one principle emerges with unusual clarity and unanimous acceptance:
the government may not use an administrative inspection scheme to search for
criminal violations.”); see also, e.g., City of Indianapolis v. Edmond, 531 U.S. 32,
37 (2000); Abel v. United States, 362 U.S. 217, 226 (1960); United States v.
Johnson, 994 F.2d 740, 742 (10th Cir. 1993) (holding that an administrative
17
No. 08-30512
inspection is a sham if it is “a pretext solely to gather evidence of criminal
activity.” (emphasis added)).7 And, in all cases, the Fourth Amendment’s
reasonableness requirement applies to government officials conducting
administrative inspections of private commercial property. See Burger, 482 U.S.
at 702; Donovan, 452 U.S. at 598.
Defendants propose a number of state statutes and local ordinances to
justify their entry and search of Club Retro as an administrative inspection:
alcohol control laws and ordinances, fire safety codes, and state firearm laws.
Louisiana law authorizes sheriffs and other municipal officers to enforce alcohol
control laws8 with respect to retailers. See LA. REV. STAT. ANN. § 26:294.
7
An officer’s suspicions about criminal wrongdoing do not, however, render an
administrative inspection pretextual. See United States v. Thomas, 973 F.2d 1152, 1155–56
(5th Cir. 1990) (“Administrative searches conducted pursuant to valid statutory schemes do
not violate the Constitution simply because of the existence of a specific suspicion of
wrongdoing.”); accord Bruce, 498 F.3d at 1242 (expressing concern about “where to draw the
line” between administrative inspections and pretextual searches, but concluding that the
administrative search was not rendered invalid based on some prior suspicion of wrongdoing).
8
Substantively, Louisiana law prohibits the sale of alcohol to persons under the age of
twenty-one, see LA. REV. STAT. ANN. § 26:286(A)(1), and prohibits anyone from permitting a
person under the age of eighteen from entering any place where alcoholic beverages are the
principal commodities sold, see id. § 26:286(A)(3)(a); see also id. § 14:92 (applying same
prohibition in context of the crime of contributing to the delinquency of juveniles under the age
of seventeen). Louisiana also permits local municipalities to “adopt ordinances regulating or
prohibiting the opening of certain businesses and/or the sale of certain stock or articles of
merchandise on Sunday, if approved by the voters at an election,” id. § 51:191, and to “regulate
but not prohibit, except by referendum vote . . ., the business of wholesaling, retailing, and
dealing in alcoholic beverages,” id. § 26:493. Rapides Parish accordingly ordered closed all bars
in the Parish from 2:00 a.m. until 12:00 midnight on Sundays, see RAPIDES PARISH ORDINANCE
4-3(a)(3)(a), and raised the age at which a person can enter a bar from eighteen to twenty-one,
see RAPIDES PARISH ORDINANCE 4-25(3). Neither ordinance was submitted to voters at an
election or approved by referendum vote, and the parties dispute the legality of these municipal
ordinances in light of Louisiana’s statutory delegation of authority.
18
No. 08-30512
Louisiana statutes and Rapides Parish Ordinances also provide for
administrative inspections:
[M]unicipal authorities, sheriffs, and other law enforcing officers
shall have periodic investigations made of the business of all
permittees within their respective jurisdictions. If any violation [of
the liquor laws] is observed, such authorities may give the permittee
a written warning. If the permittee has been previously warned or
if the violation is of a sufficiently serious nature, they shall file an
affidavit with the commissioner, setting forth the facts and
circumstances of the violation. Thereupon, the commissioner shall
summon the permittee to appear and show cause why his permit
should not be suspended or revoked.
LA. REV. STAT. ANN. § 26:93(B); see also RAPIDES PARISH ORDINANCE 4-27.9 In
addition, separate laws and ordinances permit searches of storage areas (subject
to strict warrant requirements for private residences and nonpublic areas) and
the inspection of a liquor licensee’s books. LA. REV. STAT. ANN. §§ 26:370, 26:371;
RAPIDES PARISH ORDINANCE 4-28.10
9
Rapides Parish Ordinance 4-27 provides:
The sheriff of Rapides Parish, Louisiana, is hereby given the power and
authority to search and examine any place in which he believes a violation of
[the local liquor laws] is being committed; provided, that no house, room or
apartment used as, or which apparently is, a bona fide residence shall be subject
to invasion and search except by an officer designated in a search warrant
issued by a competent court having the power of a committing magistrate.
10
Louisiana Revised Statutes Annotated § 26:371, which Rapides Parish Ordinance 4-
28 mirrors, provides, in part, that:
A. The secretary may search and examine pursuant to the provisions of this
Section, all places of storage except private residences, which may be searched
only in the manner provided by law. . . .
B. No place, other than such as is open to the public, shall be invaded and
searched for alcoholic beverages except by an officer named in a search warrant
issued by a competent court having the power of a committing magistrate upon
the filing in the court of an affidavit reciting that affiant has reasons to believe
and believes that the named place is being utilized as a site for the violation of
the provisions of the [liquor laws] together with such additional evidence as the
19
No. 08-30512
Louisiana law similarly authorizes local law enforcement officials to
enforce the fire safety codes and the lawful orders of the state fire marshals. LA.
REV. STAT. ANN. § 40:1591. Specifically, § 40:157511 permits the fire marshal to
inspect structures for fire code violations; when an inspector uncovers a
court may require to make out a prima facie case. No house, room, or
apartment used as, or which apparently is, a bona fide residence is subject to
invasion and search, except by an officer designated in a search warrant issued
by a competent court having the powers of a committing magistrate, upon the
filing in the court of an affidavit by two reliable persons reciting that they have
reasons to believe and do believe that the place of residence is being used as a
cloak or cover for a violation of the provisions of [the liquor laws] and setting
forth the specific violation being committed therein, together with such
additional corroborating evidence as the court may require to establish the
probable existence of the alleged violation.
Louisiana Revised Statutes Annotated § 26:370 adds:
The secretary may examine, at all reasonable hours, the books, records, and
other documents of all . . . permittees . . . in this state. If a . . . permittee . . .
refuses to permit this examination by the secretary, the secretary may proceed
by rule . . . in any court in the parish where the refusal occurred, requiring the
person refusing to show cause why the secretary should not be permitted to
examine its books, records and documents. Refusal by a . . . permittee . . . to
allow the secretary access to its books, records, and documents shall render any
alcoholic beverages within this state owned by or in the possession of or in the
control of such person or his employer or agent subject to seizure, forfeiture, and
sale as provided in [the liquor laws].
11
In relevant part, § 40:1575 provides:
A. . . . [U]pon his own initiative when he thinks necessary, the fire
marshal or any of his authorized representatives may inspect any structure . . .
within the state except the interiors of private and one- or two-family dwellings.
B. Whenever the inspecting officer finds any such structure . . . , which,
for any cause, is especially . . . dangerous to life . . ., he shall order . . . the
condition of the premises remedied . . . . The occupant of the structure . . . shall
not permit it to be used until the fire marshal certifies that the hazardous
conditions have been eliminated.
C. Among the causes which render a structure . . . especially liable to fire
or dangerous to life are the following:
...
(4) Lack of adequate means of ingress and egress.
(5) Lack of adequate, unrestricted passageways to the entrances and exits.
20
No. 08-30512
violation, he orders the violation remedied pursuant to service and summons
procedures, see id. §§ 40:1576, 40:1591. The owner of the property may appeal
any such order within three days. See id. § 40:1577.
Finally, Louisiana firearm laws outlaw patrons, but not owners or
employees, from possessing firearms in bars, see LA. REV. STAT. ANN. § 14:95.5,
and thus permit limited, presumed-consent, searches for guns of individuals who
enter alcohol retailers, see LA. REV. STAT. ANN. § 14:95.4(A). Section 14:95.4(A)
establishes:
Any person entering an alcoholic beverage outlet as defined herein,
by the fact of such entering, shall be deemed to have consented to a
reasonable search of his person for any firearm by a law
enforcement officer or other person vested with police power,
without the necessity of a warrant.
The owner of a bar must post a sign near the entranceway stating that entry
constitutes consent to such a search. Id. § 14:95.4(E).
These alcohol control, fire safety, and firearm laws do not authorize the
entry and search alleged to have occurred during Operation Retro-Fit. Instead,
these statutes and ordinances authorize and put property owners on notice of
periodic inspections for compliance with the fire safety and alcohol control laws
and patrons on notice of reasonable firearm searches. The administrative
inspection regimes limit law enforcement authority to periodic inspections of
public places and limit the inspectors’ authority through defined procedures,
such as various warning, petition, affidavit, summons, and warrant provisions.
See, e.g., id. §§ 26:93, 26:371(B). The inspection statutes and ordinances do not
grant law enforcement officers unfettered discretion to conduct searches of
business premises through any means of their choosing and do not provide notice
to bar owners that their business, employees, and patrons are subject to armed
21
No. 08-30512
S.W.A.T. team raids, physical assault, threats at gunpoint, and prolonged
detention.12 Defendants conducted a S.W.A.T. team raid, blocked the exits, and
engaged in a massive show of force. They physically assaulted plaintiffs, who
had weapons pointed at their faces by men in ski masks and were detained for
many hours without being permitted access to the restrooms. As alleged in the
amended complaint, the nature of the raid’s execution led employees to believe
that they were being robbed by armed gunmen and not that law enforcement
authorities were inspecting Club Retro for compliance with state and local
ordinances. Defendants’ search of Club Retro extended into the attic and a
private apartment located in the building. A deputy sheriff broke down the door
to that separate apartment, and the children in the room were removed to the
bar to be photographed. Property in the bar was destroyed. In contrast, on at
least two prior occasions, deputy sheriffs were able to inspect Club Retro without
drawing their weapons and, at those times, press Lyle and Dar to close the club
at 2 a.m. Those prior inspections belie the need for a S.W.A.T. team raid to
effectuate the inspection statutes and ordinances.
During oral argument, defendants did not attempt to justify the scope and
manner of the raids as reasonable, admitting instead that reasonableness is a
fact-based question for which they must defer to the allegations of the amended
complaint at this stage of the litigation. Administrative inspections, by their
12
If we were to agree with defendants that the inspection statutes and ordinances
permit the actions undertaken here, we would also be forced to consider whether they are a
constitutionally adequate substitute for a warrant because they would not provide similar
protections from law enforcement officers’ unlimited discretion. See Burger, 482 U.S. at
702–03; Donovan, 452 U.S. at 600; Marshall v. Barlow’s, Inc., 436 U.S. 307, 323 (1978);
Colonnade Catering Corp., 397 U.S. at 77. We, however, do not credit defendants’ assertion
because these administrative inspection statutes and ordinances do not grant officers authority
to conduct searches of the scope alleged here.
22
No. 08-30512
very nature, require more limited, less intrusive conduct than is alleged to have
occurred here. We thus conclude that defendants’ S.W.A.T. team entries and
extensive searches, as described in the amended complaint, unreasonably
exceeded the scope of Louisiana and Rapides Parish administrative inspection
laws.13 Any other conclusion would allow the administrative inspection
exception to swallow the Fourth Amendment’s warrant requirement for searches
of private property.
Our conclusion is supported by case law holding that an administrative
inspection regime cannot support armed raids, broad searches, and extended
detentions. In Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995), the
Eleventh Circuit relied on existing Supreme Court precedent to reject qualified
immunity as a defense for officers who conducted two raids of a nightclub that
were comparable in relevant respects to the raid here. There, a S.W.A.T. team
of thirty to forty officers, wearing ski masks, swarmed a club after receiving a
signal from an undercover officer who had probable cause to arrest one patron
for an illegal drug transaction. Id. at 993. The officers pointed their weapons
at many of the club’s patrons and employees; prohibited the owners, employees,
and patrons from moving or leaving; searched all individuals; refused patrons’
and employees’ requests to use the restrooms; searched the club, its cash
registers, and door receipts; and maintained control of the premises and persons
for between one and one and one-half hours. Id. The court concluded that the
officers could point to “no authority that even suggests that the search and
seizure of one suspect in a public place can be bootstrapped into probable cause
13
We need not and do not decide whether defendants’ administrative inspection
justification was a pretext for a search for evidence of criminal wrongdoing.
23
No. 08-30512
for a broad-based search of the business establishment and its patrons.” Id. at
997 (citing Ybarra v. Illinois, 444 U.S. 85 (1979)). It also held that the raids
were not administrative searches:
The facts viewed favorably to plaintiffs simply will not support
an administrative search theory. Administrative inspections
conducted on the [c]lub and its predecessor establishment both
before and after the two raids at issue in this case were
accomplished without the massive show of force and excessive
intrusion witnessed in the [two] raids. Moreover, during the two
raids the officers did not simply search for violations of the liquor
laws by the establishment; instead, a number of people were
searched for evidence of their violation of drug laws, searches to
which they did not consent as part of any regulatory scheme.
Id. at 998.14
14
In Crosby v. Paulk, 187 F.3d 1339 (11th Cir. 1999), the Eleventh Circuit upheld a less
intrusive raid as a constitutional exercise of an administrative inspection where “no . . . officer
involved in securing the nightclubs and conducting the investigation drew a weapon or
threatened the arrestees or any patron.” Id. at 1343. The officers limited their search to
verifying patrons’ ages, determining if there were after-hours alcohol sales, and ensuring that
the beer taps were properly labeled. Id. The court distinguished this more limited search from
the search in Swint based on, inter alia, the use of a S.W.A.T. team, drawn weapons, and more
extensive searches in the latter case. Id. at 1349 n.14.
More recently, in Bruce, 498 F.3d at 1236, the Eleventh Circuit held unconstitutional
a warrantless inspection of an auto body repair shop and salvage yard. Officers in S.W.A.T.
team gear surrounded the yard, blocked all exits, entered the premises with pistols and
shotguns drawn, and ordered the employees to line up along a fence. Id. One employee “felt
something touch his back and turned around to find an officer pointing a shotgun at him.” Id.
The officers patted down and searched the employees, a desk, and a locked briefcase. Id. They
arrested the owner on charges of possession of loose vehicle identification number plates and
operating a “chop shop” in violation of state law and searched the entire premises. Id. at 1237.
The search lasted over eight hours. The court, noting that prior administrative inspections had
not required the use of a S.W.A.T. team, held that the scope and manner of the searches was
unreasonable. Id. at 1243–44. It concluded that:
[T]he searches in Swint and as claimed in this case deserve to be called what
they were—criminal raids. The inspection of books and records, of automobile
titles and VIN numbers does not require exits to be blocked, an automatic
shotgun to be stuck into an employee’s back, employees to be lined up along a
fence and patted down and deprived of their identification. None of this conduct
24
No. 08-30512
In an unpublished opinion, the Sixth Circuit reached a similar conclusion
in Russo v. Massullo, No. 90-3240, 1991 WL 27420 (6th Cir. Nov. 5, 1991). In
Russo, the officers conducted a warrantless, armed raid of a restaurant and
lounge to serve notices of noncompliance with liquor control laws and to seize
two allegedly illegal video-poker gambling machines. The officers entered the
lounge with shotguns and pistols drawn, pointed them at various persons, and
ordered everyone to raise their hands. They then conducted pat-down searches
of everyone in the lounge, after which patrons were allowed to leave. Id. at *1.
The lounge owner and an employee were detained and forbidden from using the
restroom without the accompaniment of an officer. Id. The entire incident
lasted approximately two hours. Id. The court concluded that “[a]lthough we
agree with the defendants that they had a right to conduct an administrative
inspection based on the presumptive constitutionality of the statute, we do not
agree that the statute was enough to clothe in qualified immunity those actions
which went beyond those specifically authorized by the statute.” Id. at *4.
Based on the facts as alleged by plaintiffs in this case, Operation Retro-Fit
was broader in scope and more extreme in manner than the administrative
inspection laws permit. Swint, Bruce, and Russo all concluded that similar,
arguably less extreme, searches were unconstitutional under existing Supreme
Court precedent. The search of Club Retro deserves to be called what it was—a
raid to discover evidence of criminal wrongdoing. Such raids are “not the sort
of conduct that was approved by the Supreme Court in Burger.” Bruce, 498 F.3d
is either routine or administrative. It is the conduct of officers conducting a
raid.
Id. at 1245. The present case is clearly more closely situated to Swint and Bruce than Crosby.
25
No. 08-30512
at 1245. Operation Retro-Fit was therefore a violation of Club Retro, L.L.C.’s
Fourth Amendment rights.
b. Objectively Reasonable Conduct Under Clearly
Established Law
The Fourth Amendment rights at issue in this case were clearly
established at the time of defendants’ entry and search of Club Retro such that
a reasonable person would have known that Operation Retro-Fit violated those
rights. The Supreme Court long ago recognized that the Fourth Amendment
protects the owner of a commercial establishment, even a heavily regulated one,
“from unreasonable intrusions onto his property by agents of the government.”
Donovan, 452 U.S. at 599 (emphasis in original). This court has stood by that
principle for decades. See, e.g., Harris Methodist Ft. Worth, 970 F.2d at 100–02.
Existing Supreme Court precedent guided other courts of appeals to conclude
that violations of clearly established rights had occurred in Swint and Russo,
long before the events in this case. No reasonable deputy sheriff in defendants’
positions could believe that the law permitting an official to accept a public
invitation to enter a commercial establishment as would a typical citizen
justifies a S.W.A.T. team assault by forty armed officers with weapons drawn
and a full search without a warrant that is supported by probable cause.
Similarly, no reasonable deputy sheriff in defendants’ positions could have
concluded that such a raid—in which they, e.g., threatened individuals with
weapons, threw employees to the ground, searched the attic and trashed the
cash registers, broke down the door to a closed apartment, and blocked the exists
to a club they believed to be overcrowded15—was a lawful, warrantless
15
To the extent the fire safety code is designed to mitigate the threat of overcrowding,
locking patrons inside an overcrowded building for multiple hours would appear to exacerbate,
26
No. 08-30512
administrative search to check for underage alcohol consumption or fire code
violations. See Bruce, 498 F.3d at 1249–50 (“Both Burger and Edmond, decided
before the instant search, made clear that administrative searches are governed
by the Fourth Amendment’s requirement for reasonableness.”); Showers v.
Spangler, 182 F.3d 165, 173 (3d Cir. 1999) (holding that the officer’s planning
and execution of an exhaustive search of plaintiff’s business “had all the
hallmarks of a purely criminal investigation” that violated “the law barring
random and extensive administrative searches [that] had been clearly
established since at least the Burger case in 1987”); Swint, 51 F.3d at 998 (“No
reasonable officer in the defendants’ position could have believed that these were
lawful, warrantless administrative searches.”); Russo, 1991 WL 27420, at *4
(“[A]t the time of the search, it was clearly established that even where a
legislative body provides for an administrative inspection of a liquor
establishment without consent, but has ‘made no rules governing the procedure
that inspectors must follow, the Fourth Amendment and its restrictive rules
apply.’” (quoting Colonnade Catering Corp., 397 U.S. at 77)). Thus, we affirm
the district court’s order denying qualified immunity for defendants’ planning,
approval, and execution of Operation Retro-Fit as it respects the entry into and
search of Club Retro.
2. Arrests
Slocum and Doyle are not entitled to qualified immunity for their arrests
of Lyle, Dar, and Erica.16 As alleged in the amended complaint, the arrests were
not mitigate, the risks that the administrative inspection regime is designed to ameliorate,
further coloring defendants’ actions as unreasonable.
16
On appeal, the parties have not raised or briefed plaintiffs’ state-law false arrest
claims; therefore, we rule only regarding false arrest under federal law.
27
No. 08-30512
not supported by probable cause based on the facts and circumstances known to
Slocum and Doyle at the time they made the arrests and therefore violated
Lyle’s, Dar’s, and Erica’s clearly established Fourth Amendment rights.17
a. Constitutional Violations
The constitutional claim of false arrest requires a showing of no probable
cause.18 Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001). “The Supreme
Court has defined probable cause as the ‘facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.’” Piazza v.
Mayne, 217 F.3d 239, 245–46 (5th Cir. 2000) (quoting Michigan v. DeFillippo,
443 U.S. 31, 37 (1979)). The facts must be known to the officer at the time of the
arrest; post-hoc justifications based on facts later learned cannot support an
earlier arrest. Sibron v. New York, 392 U.S. 40, 62–63 (1968); Henry v. United
States, 361 U.S. 98, 102 (1959); Johnson v. United States, 333 U.S. 10, 16 (1948);
Carroll v. United States, 267 U.S. 132, 161–62 (1925). The facts must be
particularized to the arrestee. Ybarra, 444 U.S. at 91. We apply an objective
17
During oral argument, defendants wisely conceded that the arrests of Lyle, Dar, and
Erica on gun possession charges violated clearly established constitutional rights of which a
reasonable person would have known. We therefore focus only on defendants’ other asserted
bases for arresting Lyle, Dar, and Erica. To the extent any other individual plaintiffs were
subject to de facto arrest during Operation Retro-Fit, we consider the legality of those arrests
in our review of their claims of unlawful search and seizure.
18
A false arrest claim also requires a showing that any resulting “conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). The
amended complaint does not allege that Lyle, Dar, or Erica were convicted of or sentenced for
any crimes, and defendants have not raised Heck as a bar to the present false arrest claims.
28
No. 08-30512
standard, which means that we will find that probable cause existed if the officer
was aware of facts justifying a reasonable belief that an offense was being
committed, whether or not the officer charged the arrestee with that specific
offense. See Devenpeck v. Alford, 543 U.S. 146, 153–54 (2004).
Defendants assert that Slocum and Doyle had probable cause at the time
of arrest to believe that Lyle and Dar failed to comply with an order of the fire
marshal, in violation of Louisiana Revised Statutes Annotated § 40:1621;
permitted persons between the ages of eighteen and twenty-one years of age into
Club Retro, in violation of Rapides Parish Ordinance 4-25(3); kept Club Retro
open after 2 a.m., in violation of Rapides Parish Ordinance 4-3(a)(3)(a); and
permitted minors younger than the age of eighteen to enter Club Retro, in
violation of Louisiana Revised Statutes Annotated §§ 26:90(A)(3)(a),
26:286(A)(3)(a).
We conclude that the facts as alleged in the amended complaint do not
permit a conclusion that defendants had probable cause to arrest Lyle and Dar
under these laws at the time of the arrests. Although the parties primarily
dispute the validity and applicability of Rapides Parish’s ordinances, the
allegations of the amended complaint clearly establish that Slocum and Doyle
did not possess knowledge of material facts at the times of the arrests.
According to the amended complaint, Lyle and Dar were seized and removed
from Club Retro “as soon as the military attack maneuver began.” Although we
leave the final resolution of the factual issues for later stages of litigation,
Anderson v. Creighton, 483 U.S. 635, 641 (1987) (holding that “the determination
whether it was objectively legally reasonable to conclude that a given search was
supported by probable cause or exigent circumstances will often require
examination of information possessed by the searching officials”), there are no
29
No. 08-30512
allegations in the amended complaint that defendants plausibly knew at the
time of the arrests (1) that the fire marshal estimated the number of patrons
inside Club Retro to exceed the prior capacity order; (2) that some patrons were
between eighteen and twenty-one years of age;19 or (3) that minor children were
in a separate, private apartment. Similarly, the amended complaint expressly
states that Judge Davidson did not sign the warrants for Lyle’s and Dar’s arrests
for operating Club Retro after 2 a.m. on January 4, 2006, until hours after their
arrests.20
19
Defendants assert that Slocum had probable cause because Lyle and Dar earlier
notified Slocum that they would permit persons between eighteen and twenty-one years of age
into Club Retro. This argument is unfounded. The facts of the amended complaint allege only
that Lyle and Dar asked him whether or not the law permits them to do so. He allegedly
responded that the law was a “grey area” and directed them to the district attorney’s office.
The district attorney then confirmed that the law allowed them to permit persons between
eighteen and twenty-one years of age to enter Club Retro so long as Club Retro did not serve
those persons alcohol. Thus, based on the amended complaint’s allegations, Slocum did not
have probable cause to believe that Lyle and Dar were permitting persons between eighteen
and twenty-one years of age into Club Retro, absent the contemporaneous knowledge that the
district attorney’s office had so advised them.
20
Alternatively, based on the facts alleged in the amended complaint, plaintiffs have
shown that the warrants cannot support the arrests. The amended complaint alleges that,
although the warrants were sworn by LaCour, they were procured with Slocum’s involvement.
“While a valid arrest warrant would normally insulate officers against a claim for false arrest,
in a case such as the one before us where the officers charged with false arrest were
responsible for securing the warrant, we are required to test the validity of that warrant,
applying the usual standards.” Mendenhall v. Riser, 213 F.3d 226, 232 (5th Cir. 2000).
Rapides Parish Ordinance 4-3(a)(3)(a) prohibits an alcohol retailer, such as Club Retro, from
remaining open after 2 a.m. on Sunday mornings. These warrants, however, cannot justify
the arrests of Lyle and Dar because, inter alia, January 4, 2006, was a Wednesday, not a
Sunday. Thus, the warrants do not authorize an arrest based on facts constituting probable
cause to believe a violation of ordinance 4-3(a)(3)(a) had occurred. The same fact precludes an
argument that Slocum or Doyle had probable cause independently from the flawed warrants.
Because defendants have provided us with no argument that the warrants were valid, because
they were not signed until hours after Lyle’s and Dar’s arrest, and because probable cause was
completely lacking in any case, the warrants cannot support the arrests.
30
No. 08-30512
Regarding Slocum’s and Doyle’s arrest of Erica, defendants assert that
they had probable cause to charge her with improper supervision of a minor
because she permitted her minor daughter Olivia to enter Club Retro in violation
of Louisiana Revised Statutes Annotated §§ 14:92(A)(3), 26:90(A)(3)(a),
26:286(A)(3)(a), and Rapides Parish Ordinance 4-23(3).21 Although the laws
identified by defendants prohibit a person from permitting a minor to enter an
establishment that primarily serves alcohol, both Louisiana law and Rapides
Parish ordinances clearly distinguish between areas in an alcohol-serving
establishment and separate, private apartments used as residences that are not
open to the public, see LA. REV. STAT. ANN. § 26:371(B); RAPIDES PARISH
ORDINANCE 4-27. Here, the allegations of the amended complaint show that a
deputy sheriff broke down the door to the separate, private apartment that was
inaccessible to the public and used as a residence wherein Olivia and two other
minors were staying.22 Olivia was asleep in her pajamas at the time. Officers
removed all three minors from the separate apartment and seated them at the
bar in order to photograph them. Erica told Slocum and other officials that the
girls had been removed from a separate apartment that Lyle and she used as a
residence. Only then was she arrested. Based on these allegations, we accept
as fact that Olivia was in a separate apartment, not in Club Retro, prior to the
raid and that the deputy sheriffs were aware of that fact. Vested with that
21
Although the facts of the amended complaint clearly allege that a deputy sheriff did
not discover Olivia, Carley, and the third minor until well after Lyle and Dar were arrested,
our holding that Slocum and Doyle lacked probable cause to arrest Erica also applies with
equal force to Lyle and Dar.
22
Thus, defendants’ reliance on State v. Scallan, 10 So. 2d 885 (1942), is misplaced. In
Scallan, the defendant was charged with allowing his daughter to enter a night club, not
keeping her in a separate apartment. Id. at 886–87.
31
No. 08-30512
knowledge, a reasonable officer in Slocum’s and Doyle’s positions would not have
believed that the circumstances provided probable cause to arrest Erica for
committing the offense of permitting a minor to enter the establishment of an
alcohol retailer. Erica’s arrest was therefore unconstitutional.
We conclude that, on the facts alleged in the amended complaint, Slocum’s
and Doyle’s arrests of Lyle, Dar, and Erica violated their constitutional rights
to be free from arrest lacking probable cause.23
b. Objectively Reasonable Conduct Under Clearly
Established Law
The Fourth Amendment right to be free from false arrest—arrest without
probable cause—was clearly established at the time of Lyle’s, Dar’s, and Erica’s
arrests. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 111–12 (1975); Mendenhall,
213 F.3d at 230; Thomas v. Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988).
Nonetheless, “[e]ven law enforcement officials who ‘reasonably but mistakenly
conclude that probable cause is present’ are entitled to immunity.” Mendenhall,
23
Plaintiffs also argue that, even if Slocum and Doyle had probable cause to arrest Lyle,
Dar, and Erica, defendants nonetheless effectuated their arrests in such ways as to render
them unreasonable, citing Whren v. United States, 517 U.S. 806, 818 (1996). While in most
cases the existence of probable cause removes any doubt about the reasonableness of the
seizure because the law enforcement interest significantly outweighs the person’s interest in
being free from governmental intrusion, see id.; Moore, 128 S. Ct. at 1605 (holding that “an
arrest based on probable cause serves interests that have long been seen as sufficient to justify
the seizure”), under certain extraordinary circumstances—typically involving physical harm
or invasion of privacy—an arrest based on probable cause may be unreasonable under the
Fourth Amendment’s balancing test, see Whren, 517 U.S. at 818; Tennessee v. Garner, 471 U.S.
1, 7–8 (1985). Plaintiffs assert that defendants’ extremely physical and threatening conduct
in conducting the raid, collecting the purported evidence of wrong-doing, and seizing Lyle, Dar,
and Erica render the arrests extraordinary and unreasonable. Because we conclude that, on
the facts alleged in the amended complaint, no probable cause existed for Lyle’s, Dar’s, and
Erica’s arrests, we need not and do not reach this issue. The district court is free to consider
it if factual developments at subsequent stages of litigation lead to the conclusion that probable
cause existed at the times of the arrests.
32
No. 08-30512
213 F.3d at 230 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)) (other
quotation marks and citations omitted). Thus, plaintiffs must allege facts
permitting an inference that defendants lacked arguable (that is, reasonable but
mistaken) probable cause for the arrests. See Babb v. Dorman, 33 F.3d 472, 478
(5th Cir. 1994); see also Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).
Plaintiffs have alleged facts showing that Slocum and Doyle lacked
arguable probable cause to arrest Lyle, Dar, and Erica. For Lyle and Dar,
Slocum’s and Doyle’s knowledge of the factual circumstances that they argue
gave rise to probable cause did not emerge until after they effectuated the
arrests. Yet, it is and was at that time axiomatic that the officers must know the
factual predicate for probable cause prior to arrest. See, e.g., Sibron, 392 U.S.
at 62–63; Henry, 361 U.S. at 102. Based on the facts of the amended complaint,
Slocum and Doyle lacked arguable probable cause to arrest anyone at the outset
of the raid.24
24
Defendants argue that, as an alternative basis for granting qualified immunity,
Slocum and Doyle had arguable probable cause to arrest Lyle and Dar for permitting persons
between eighteen and twenty-one years of age into Club Retro, in violation of Rapides Parish
Ordinance 4-25(3). Plaintiffs argue that Rapides Parish’s promulgation of this ordinance
violated Louisiana Revised Statutes Annotated § 26:493. Section 26:493 authorizes a parish
to “regulate but not prohibit, except by referendum vote . . . the business of . . . retailing . . .
alcoholic beverages” but no “more than is necessary for the protection of the public health,
morals, safety, and peace.” The parties contest whether the Rapides Parish Ordinance 4-25(3)
prohibits or regulates and thus whether a referendum vote was necessary for its lawful
promulgation. Defendants alternatively assert that, even if it was unlawfully promulgated,
Slocum and Doyle did not act objectively unreasonably when making an arrest pursuant to an
ordinance that was “on the books” and not clearly established to be unlawful in February 2006.
Plaintiffs allege that they relied on official interpretations by Rapides Parish officials to ensure
that they were acting in accordance with Rapides Parish Ordinance 4-25(3), that they asked
Slocum about the legality of such a course of action, and that Slocum directed them to the
officials; thus, Slocum’s actions were unreasonable. Whether or not the arrests were
objectively reasonable on this ground—that is, whether Slocum and Doyle acted reasonably
but mistakenly in believing that this ordinance provided them with probable cause—we need
not decide: having already decided that they lacked probable cause to arrest for this violation
33
No. 08-30512
For Erica, Louisiana law at the time of Erica’s arrest clearly recognized
the separate nature of an apartment used, or apparently used, as a private
residence and forbade an officer from entering such an apartment absent a
properly obtained warrant in the context of a search for violations of alcohol
control laws (let alone when not reasonably acting pursuant to such an
inspection program). See LA. REV. STAT. ANN. § 26:371(B). According to the
amended complaint, Olivia and the other minors were in a separate, private
apartment, and an officer had to break down the door in order to gain access.
While further factual development is warranted, we cannot now conclude that
Erica’s arrest was based on arguable probable cause.
Overall, we affirm the district court’s order denying qualified immunity to
Slocum and Doyle for Erica’s arrest and affirm on different grounds the district
because the factual predicate—their knowledge of the age of the patrons—did not arise until
after the arrests, this issue is not yet ripe. If factual developments at subsequent stages of
litigation lead to the conclusion that probable cause existed at the time of the arrests to believe
that a violation of ordinance 4-25(3) had occurred, the district court should consider how a
reasonable officer would have proceeded under the totality of the circumstances known to
Slocum and Doyle at that time. Cf. Pearson, 129 S. Ct. at 819 (identifying ambiguous state
statutes or uncertain assumptions about state law as factors bearing on whether to determine
if an official acted objectively unreasonably in light of clearly established law before
determining whether a violation of constitutional rights occurred).
Plaintiffs similarly contest the validity of Rapides Parish Ordinance 4-3(a)(3)(a) (the 2
a.m. Sunday closure ordinance) in light of Louisiana Revised Statutes Annotated § 51:191,
which probably requires that ordinance to have been approved by the voters in an election.
See City of Zwolle v. Polk, 643 So. 2d 201, 202 (La. Ct. App. 1994) (holding that § 51:191
mandates that “a local government may prohibit Sunday sales only if the ordinance is
approved by the voters in an election” (emphasis in original)); see also Bebop’s Ice House, Inc.
v. City of Sulphur, 774 So. 2d 369, 372–73 (La. Ct. App. 2000). Even if it was a valid statute,
because defendants assert that plaintiffs operated Club Retro after 2 a.m. on January 4, 2006,
a Wednesday, it is not a statute on which to base a finding of arguable probable cause on the
facts of this case.
34
No. 08-30512
court’s order denying qualified immunity to Slocum and Doyle for Lyle’s and
Dar’s arrests.25
3. Searches and Seizures of Individual Plaintiffs
Slocum, Rauls, LaCour, and Doyle are not entitled to qualified immunity
for their searches and seizures of Lyle, Dar, Erica, Olivia, Christine, Carley,
Mabou, and Jonathan. As alleged, the searches and seizures of those plaintiffs
violated their clearly established Fourth Amendment rights.26
a. Constitutional Violations
A search and seizure of a person must be based on probable cause
particularized with respect to that person unless a constitutionally adequate
substitute for probable cause exists. See Ybarra, 444 U.S. at 91–94. Defendants
argue that the searches and seizures of the individual plaintiffs were (1)
reasonable weapons searches based on the consent presumed under Louisiana
statutory law when the plaintiffs entered Club Retro, see LA. REV. STAT. ANN.
§ 14:95.4(A); (2) stops and frisks based on reasonable suspicion that plaintiffs
were engaged in unlawful activities and armed and dangerous, as authorized by
Terry v. Ohio, 392 U.S. 1 (1968); and (3) reasonable searches incident to
arrest—whether formal or de facto—based on probable cause.27 Plaintiffs have
25
We will not consider defendants’ other asserted bases of probable cause to arrest each
individual plaintiff because defendants have not identified facts contained in the amended
complaint that are particularized to each plaintiff. See Ybarra, 444 U.S. at 91.
26
Defendants make no argument regarding the conduct directed toward Olivia and
Carley other than to contest whether they were in a separate apartment or in Club Retro.
Such factual disputes are not properly before us at this stage of litigation. See Behrens, 516
U.S. 312–13 (citing Johnson v. Jones, 515 U.S. 304, 313–318 (1995)).
27
Defendants first argue that plaintiffs had no reasonable expectation of privacy once
they chose to open, operate, or work at Club Retro. This argument warrants little discussion.
The presence in public, even in a highly regulated commercial establishment, does not lessen
35
No. 08-30512
alleged facts showing that defendants’ searches and seizures of Lyle, Dar, Erica,
Olivia, Christine, Carley, Mabou, and Jonathan far exceeded the scope of
permissible statutory searches for weapons; were not based on individualized
suspicions as required by Terry; and were not searches incident to arrests based
on probable cause.
i. Statutory Weapons Searches
Based on the facts alleged in the amended complaint, the searches and
seizures of plaintiffs during Operation Retro-Fit were not reasonable weapons
searches. Louisiana Revised Statutes Annotated § 14:95.4(A) provides that
“[a]ny person entering an alcoholic beverage outlet . . ., by the fact of such
entering, shall be deemed to have consented to a reasonable search of his person
for any firearm by a law enforcement officer . . . without the necessity of a
warrant.” Two factual allegations dispel any contention that this statute
authorized the searches in this case. First, the searches conducted were not
limited to searches for weapons. The presence of drug sniffing dogs and the
assistance of narcotics and parole officers suggests that the searches were for
evidence of crimes, not only firearms. Second, the searches were not
reasonable—a statutory requirement for the presumed-consent searches. The
deputy sheriffs pointed guns at, physically assaulted, and threatened plaintiffs.
Jonathan was pushed to the ground at gunpoint and searched. Mabou was
searched at gunpoint. Christine was forced to the ground at gunpoint and
searched. Carley, a minor staying in the separate apartment, was shoved
against the wall. Christine, Carley, Erica, and Olivia were all removed from the
an individual’s right to be free from unreasonable searches and seizures by governmental
officials. See Ybarra, 444 U.S. at 91; see also Bond v. United States, 529 U.S. 334, 338–39
(2000).
36
No. 08-30512
premises. Lyle and Dar were seized, assaulted, searched, and removed to a
secure location. These searches and seizures were not reasonable manifestations
of the statutorily permitted search to which persons consent when they enter a
bar.28
ii. Stops and Frisks Pursuant to Terry
Plaintiffs’ allegations also make clear that the searches and seizures of the
individual plaintiffs were not justified by the Terry stop-and-frisk exceptions to
the probable cause and warrant requirements. In Terry, the Supreme Court
held that an officer who lacks probable cause but who can “point to specific and
articulable facts” that “reasonably warrant” the inference that “a particular
person” is committing a crime may briefly detain that person in order to
“investigate the circumstances that provoke suspicion.” 392 U.S. at 21. The
Supreme Court has time and again reiterated that the stop must be brief,
minimally intrusive, and “‘reasonably related in scope to the justification for [its]
initiation.’” United States v. Brignoni-Ponce, 422 U.S. 873, 880–81 (1975)
(quoting Terry, 392 U.S. at 29). An accompanying frisk for weapons is
warranted if the officer can articulate specific facts and reasonable inferences
that “he is dealing with an armed and dangerous individual.” Terry, 392 U.S.
at 27. The search is “a limited protective search for concealed weapons,” not a
search to discover evidence of a crime. Adams v. Williams, 407 U.S. 143, 146
(1972). Overall, “[t]he manner in which the seizure and search were conducted
28
We need not and do not decide whether § 14:95.4(A) applies to owners and employees
of a bar because, in any case, the searches here were not justified by the statute. We also need
not and do not decide the limits of reasonableness imposed on searches under this statute—i.e.,
whether they may be more intrusive than a Terry frisk—because of the extreme facts of this
case.
37
No. 08-30512
is, of course, as vital a part of the inquiry as whether they were warranted at
all.” Terry, 392 U.S. at 29; see also Williams v. Kaufman County, 352 F.3d 994,
1004 (5th Cir. 2003) (holding unreasonable, and thus unlawful, the officers’
prolonged, hand-cuffed detention of customers in a public commercial
establishment).
In this case, the factual pleadings contain no particularized
determinations by the deputy sheriffs that any of the individual plaintiffs were
presently committing crimes or armed and dangerous. Moreover, as discussed
above, the manner of the searches and seizures far exceeded the limited, non-
threatening intrusions that Terry permits.29
iii. Searches Incident to Arrest
Defendants also argue that they had the right to search Lyle, Dar, Erica,
Christine, Mabou, and Jonathan incident to their arrests. Officers may perform
searches incident to constitutionally permissible arrests in order to ensure their
safety and safeguard evidence. Moore, 128 S. Ct. at 1607; United States v.
Robinson, 414 U.S. 218, 235 (1973) (“A custodial arrest of a suspect based on
probable cause is a reasonable intrusion under the Fourth Amendment; that
intrusion being lawful, a search incident to the arrest requires no additional
justification.” (quotation marks omitted)). A search incident to a custodial
arrest, however, must be narrowly tailored. The search is limited to the area
within the arrestee’s immediate control and restricted to securing any weapons
29
State v. Jackson, 809 So. 2d 198 (La. Ct. App. 2002), cited by defendants, is
inapposite. Jackson upheld a search of an individual by a private security guard to whom the
Fourth Amendment prohibitions against illegal searches do not apply. Id. at 200. The security
guard then signaled a law enforcement officer that the person possessed either a weapon or
drugs in violation of the law. Id. at 200–01. The law enforcement officer proceeded to conduct
a permissible stop and frisk pursuant to § 14:95.4(A) and Terry. Id. at 202.
38
No. 08-30512
that the arrestee might use or evidence the arrestee might conceal. Chimel v.
California, 395 U.S. 752, 763 (1969).
We have already concluded, based on the amended complaint, that
defendants lacked probable cause to arrest Lyle, Dar, and Erica; therefore, the
defendants’ searches of them were not pursuant to lawful arrests. The same
conclusion applies to the searches of Christine, Mabou, and Jonathan, which
defendants argue were pursuant to seizures based on probable cause resulting
in de facto arrests. Defendants have pointed to no particularized facts contained
in the amended complaint supporting probable cause to lawfully arrest
Christine,30 Mabou, or Jonathan; thus, the searches of those three plaintiffs were
not proximate to their lawful arrests.
Overall, on the facts alleged in the amended complaint, Slocum, Rauls,
LaCour, and Doyle violated Lyle’s, Dar’s, Erica’s, Olivia’s, Christine’s, Carley’s,
Mabou’s, and Jonathan’s Fourth Amendment rights by searching and seizing
them without probable cause or one of its substitutes; thus, we must determine
if those rights were clearly established at the time of the searches and seizures.
b. Objectively Reasonable Conduct Under Clearly
Established Law
Plaintiffs have alleged violations of Fourth Amendment rights that were
clearly established in February 2006. Defendants do not contest that the Fourth
Amendment’s probable cause and reasonableness requirements; Terry’s
requirement of specific, articulable facts giving rise to reasonable suspicions that
30
To the extent defendants assert that the presence of Olivia, Carley, and the other
minor in the separate, private apartment provided defendants with probable cause to arrest
Christine, our conclusion above that they lacked probable cause to arrest Erica applies with
equal force to Christine.
39
No. 08-30512
criminal activity is afoot and that the suspect is armed and dangerous; the
limited scope of Terry and similar weapons searches; and the necessity of a
lawful arrest to conduct a search incident to arrest were well-established at that
time. Nor have defendants presented any other basis on which to conclude that
they acted reasonably. We thus conclude that Slocum, Rauls, LaCour, and Doyle
are not entitled to qualified immunity for the searches and seizures of Lyle, Dar,
Erica, Olivia, Christine, Carley, Mabou, and Jonathan. We affirm the district
court’s order denying qualified immunity to Slocum, Rauls, LaCour, and Doyle
for these plaintiffs’ Fourth Amendment unreasonable search and seizure claims.
4. First Amendment Violations
Hilton, Slocum, Rauls, and LaCour are entitled to qualified immunity for
Club Retro, L.L.C.’s, Lyle’s, and Dar’s First Amendment free speech and
association claims because plaintiffs have failed to plead a violation of their
constitutional rights. The First Amendment provides, in relevant part, that
“Congress shall make no law . . . abridging the freedom of speech . . . or the right
of the people peaceably to assemble.” This court has held that “[l]ive musical
entertainment such as [a] [c]oncert is unquestionably speech and expression
subject to the guarantees of the First Amendment.” Collins v. Ainsworth, 382
F.3d 529, 539 (5th Cir. 2004) (citing Ward v. Rock Against Racism, 491 U.S. 781,
790 (1989)); see also Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981)
(“Entertainment . . . is protected; . . . live entertainment, such as musical and
dramatic works, fall within the First Amendment guarantee.”). To practice this
freedom and “have access to live musical expression, the public must necessarily
rely on concert promoters to make arrangements for musicians to perform.”
Cinevision Corp. v. City of Burbank, 745 F.2d 560, 568 (9th Cir. 1984); see also
40
No. 08-30512
Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981)
(“The First Amendment protects the right of every citizen to ‘reach the minds of
willing listeners and to do so there must be opportunity to win their attention.’”
(quoting Kovacs v. Cooper, 336 U.S. 77, 87 (1949))). In the concert setting, the
First Amendment right to freedom of expression interacts with the right to
freedom of assembly and association: “Implicit in the right to engage in First
Amendment-protected activities is ‘a corresponding right to associate with others
in pursuit of a wide variety of political, social, economic, educational, religious,
and cultural ends.’” Collins, 382 F.3d at 539 (quoting Roberts v. U.S. Jaycees,
468 U.S. 609, 622 (1984)). The right, which protects expressive association,
however, does not protect chance encounters at a dance club that contain no
element of expression. See City of Dallas v. Stranglin, 490 U.S. 19, 25 (1989);
Roberts, 468 U.S. at 619; see also Wallace v. Tex. Tech Univ., 80 F.3d 1042,
1051–52 (5th Cir. 1996). Nonetheless, “[w]hen public officials are given the
power to deny use of a forum in advance of actual expression or association, the
danger of [constitutionally impermissible] prior restraints [on the exercise of
First Amendment rights] exists.” Collins, 382 F.3d at 539 (citing Se. Promotions,
Ltd. v. Conrad, 420 U.S. 546, 553 (1975)).
In this case, Club Retro, L.L.C., Lyle, and Dar allege two acts that
purportedly infringed their First Amendment rights. First, on the night of the
raid, “some of the Deputy Sheriffs were telling people that Club Retro, L.L.C.
was going to be shut down, that people should not come back to Club Retro,
L.L.C. and that, if they did come back to Club Retro, L.L.C., that Club Retro,
L.L.C. would be raided again and they would be arrested.” Second, the following
weekend, on the night of Paul Wall’s concert at Club Retro, a fire marshal and
41
No. 08-30512
two Rapides Parish deputy sheriffs entered Club Retro and stayed until the
show began. Two other Rapides Parish deputy sheriffs conspicuously parked
their cruisers in Club Retro’s parking lot for the duration of the concert.
We conclude that plaintiffs have failed to plead a constitutional
infringement. Statements by some deputy sheriffs that people should not return
to the club do not constitute a prior restraint on any First Amendment rights.
Plaintiffs were free to and did hold their concert the following weekend. They
also continued to operate Club Retro on subsequent weekends without
government officials exercising any control over their speech.31 Patrons were
free to and did attend. Similarly, the passive attendance and visibility of the
deputy sheriffs at Club Retro before and during the Paul Wall concert was not
a violation of First Amendment rights. The deputy sheriffs had every right to
attend the show and park in the parking lot just as any other patron. See Lewis,
385 U.S. at 211; Dobard, 824 So. 2d at 1133. The concert proceeded as
scheduled, and the amended complaint does not allege that the deputy sheriffs
interfered so as to prevent any persons who wanted to attend from attending.32
Moreover, plaintiffs have not alleged that Hilton, Slocum, Rauls, or LaCour were
personally involved in the events on the night of the Paul Wall concert.
31
We address only plaintiffs’ First Amendment claims: plaintiffs’ state-law business
interference claims and related injuries are not before us.
32
Thus, Collins is inapposite. In Collins, the sheriff first asked concert organizers to
cancel their planned 2 Live Crew concert; when the organizers refused, the sheriff organized
two driver’s license checkpoints near the entrances to the concert venue. 382 F.3d at 545.
After the members of 2 Live Crew and many concert goers were stopped at the check-points,
2 Live Crew did not perform. Id. at 535. Although the checkpoints were “facially valid,” the
court held that the sheriff abused his authority by using the checkpoints for his intended and
stated purpose of denying the use of the venue for a concert. Id. at 545. Here, there are no
allegations that defendants physically interfered with potential concert attendees.
42
No. 08-30512
Therefore, defendants are entitled to qualified immunity because plaintiffs have
not alleged that any of the defendants denied Club Retro, L.L.C., Lyle, or Dar
use of Club Retro for First Amendment protected expression. We reverse the
district court’s order on this claim.
5. Equal Protection Violations
Hilton, Slocum, Rauls, and LaCour are entitled to qualified immunity for
plaintiffs’ Fourteenth Amendment equal protection claims because plaintiffs
have failed to allege either an intent to discriminate or unequal treatment. The
Fourteenth Amendment prohibits a state from “deny[ing] to any person within
its jurisdiction the equal protection of the laws.” This “Equal Protection Clause
‘is essentially a direction that all persons similarly situated should be treated
alike.’” Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993) (quoting City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). To maintain
an equal protection claim, a plaintiff typically alleges that he “received
treatment different from that received by similarly situated individuals and that
the unequal treatment stemmed from a discriminatory intent.” Taylor v.
Johnson, 257 F.3d 470, 473 (5th Cir. 2001); see In re United States, 397 F.3d 274,
284 (5th Cir. 2005); Beeler v. Rounsavall, 328 F.3d 813, 816–17 (5th Cir. 2003);
Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996).
Plaintiffs’ amended complaint alleges that they have been discriminated
against based on Lyle’s and Dar’s Creole ethnicity and Club Retro’s mixed-race
clientele. Plaintiffs allege four facts that they claim are sufficient to state a
claim of racial discrimination: (1) the racial makeup of the Club’s owners,
employees, and patrons compared to that of the predominately Caucasian
Rapides Parish Sheriffs Department; (2) unnamed deputy sheriffs’ use of racial
43
No. 08-30512
epithets; (3) the absence of similar raids against GG’s, a white-owned nightclub
that caters to white patrons;33 and (4) statistics showing Operation Retro-Fit
yielded few arrests. These allegations fail to carry plaintiffs’ burden of alleging
facts showing unequal treatment or discriminatory intent on the part of the
planners of Operation Retro-Fit. See Twombly, 127 S. Ct. at 1965, 1974.
We strongly condemn the use of racial epithets; however, the usage alleged
here is not probative of disparate treatment or discriminatory intent. Plaintiffs
have alleged generally that “[t]he crowd was . . . insulted with profanities and
racial slurs” and specifically that Slocum said to Erica, “And you think you are
White? You are not F---ing White.” In Williams v. Bramer, 180 F.3d 699, 706
(5th Cir. 1999), this court held that “an officer’s use of a racial epithet, without
harassment or some other conduct that deprives the victim of established rights,
does not amount to an equal protection violation.” The court explained that:
When leveled against a citizen by a police officer, a racial epithet, by
its nature, calls attention to the citizen’s racial identity. The use of
an epithet is therefore strong evidence that a comment or action is
racially motivated. The question in the equal protection context,
however, is not just whether the conduct is racially motivated but
also whether that action deprives a person of “equal protection of
the laws.” Where the conduct at issue consists solely of speech,
there is no equal protection violation.
Id. (citation omitted). As deplorable and reprehensible as the use of racial
profanity is, particularly in the context of intrusive displays of official police
authority, plaintiffs have not alleged that any defendant made a statement that
33
According to the amended complaint, GG’s is located about one-half mile up the road
from Club Retro. Defendants argue that, unlike Club Retro, GG’s is within an incorporated
municipality and thus not subject to Rapides Parish ordinances. Because GG’s location is an
issue of fact, we assume for our present analysis that GG’s was in the same jurisdiction as Club
Retro.
44
No. 08-30512
he targeted Club Retro because it was minority-owned and attracted a mixed-
race and mixed-ethnicity crowd.
Next, plaintiffs allege that GG’s has not been raided. This allegation is
insufficient to show disparate treatment where plaintiffs have failed to allege
any facts showing that GG’s was similarly situated. Moreover, prior to
Operation Retro-Fit, Club Retro had likewise not been raided; thus, we can draw
no inference of disparate treatment: “[t]he first club raided had to be either
black-owned or white-owned, and that it was one instead of the other proves
nothing.” Swint, 51 F.3d at 1000. Finally, we note that the differences in the
racial or ethnic makeup of the respective parties and the post-operation
statistics showing Operation Retro-Fit yielded few drug arrests are not
probative, without other allegations, of unequal treatment or discriminatory
intent.
Thus, defendants are entitled to qualified immunity on plaintiffs’ equal
protection claims, and we reverse the district court’s order in that regard.
C. Dismissal Without Prejudice
Finally, we lack jurisdiction to review an appeal of the district court’s
order granting without prejudice the motion to dismiss the substantive due
process claims based on qualified immunity. Section 1291 vests us with
jurisdiction over “all final decisions of the district courts.” In most cases, “an
order is final only when it ‘ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.’” Coopers & Lybrand v. Livesay,
437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229 (1945)).
However, “a decision ‘final’ within the meaning of § 1291 does not necessarily
mean the last order possible to be made in a case.” Gillespie v. United States
45
No. 08-30512
Steel Corp., 379 U.S. 148, 152 (1964). Among the exceptions to the general rule
are orders that “fall in that small class [of decisions] which finally determine
claims of right separable from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the cause itself to require
that appellate consideration be deferred until the whole case is adjudicated.”
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Under the
Cohen collateral order doctrine, “a district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence
of a final judgment.” Mitchell, 472 U.S. at 530 (emphasis added). A district
court’s order granting qualified immunity, however, typically does not qualify
under the Cohen collateral order doctrine because the order is “capable of being
fully and effectively reviewed after final judgment.” Thompson v. Betts, 754 F.2d
1243, 1246 (5th Cir. 1985); cf. United States v. Day, 806 F.2d 1240, 1242 n.8 (5th
Cir. 1986) (noting “that a dismissal without prejudice of a criminal indictment
does not generally fall within the collateral order exception to section 1291”
because “no important right of [the defendant’s] is irreparably foreclosed from
review”). One could argue that when granted without prejudice, a dismissal is
not a complete victory for a defendant, in that the defendant remains subject to
the risk of suit and is not “home free.” As such, the plaintiff’s ability to file a
new suit could risk “inhibition of [the official’s] discretionary action . . . and
deterrence of able people from public service”—the very harms that the doctrine
of qualified immunity seeks to avoid. Mitchell, 472 U.S. at 526; see also Jacquez,
801 F.2d at 792 (“[I]f the protections afforded public officials are not to ring
hollow, plaintiffs cannot be allowed to continue to supplement their pleadings
46
No. 08-30512
until they stumble upon a formula that carries them over the threshold.”). This
concern is unfounded. Even though the district court dismissed the substantive
due process claims without prejudice, defendants simply do not face discovery,
trial, liability, or any other costs of suit related to such claims. Hilbun v.
Goldberg, 823 F.2d 881, 883 (5th Cir. 1987) (“A federal court that dismisses
without prejudice a suit arising from a federal statutory cause of action . . .
leaves the parties in the same legal position as if no suit had ever been filed.”).
If the case proceeds in its current posture, defendants’ rights to be free from the
burdens of suit for which they are entitled qualified immunity will be vindicated
without further action from any court. If and only if plaintiffs move to amend
their complaint or file a new complaint, and the district court permits them to
proceed over defendants’ continuing assertion of qualified immunity, will
defendants face the burdens of discovery or trial on the substantive due process
claims. Thus, accepting jurisdiction and deciding the case at this time would be
a fundamentally speculative enterprise.34 We therefore dismiss for lack of
appellate jurisdiction defendants’ appeal of the district court’s order dismissing
the substantive due process claims without prejudice.
III. CONCLUSION
For the foregoing reasons, we AFFIRM in part, REVERSE in part, and
REMAND. We AFFIRM the district court’s order denying qualified immunity
34
Moreover, our jurisdiction is closely circumscribed only to legal questions. See
Johnson, 515 U.S. at 313–315; Atteberry, 430 F.3d at 251–52. Because the district court is
best situated to determine when plaintiffs have had sufficient opportunity to state their best
case, we review the district court’s decision to grant a motion to dismiss with or without
prejudice only for abuse of discretion. See Schiller v. Physicians Res. Group Inc., 342 F.3d 563,
567 (5th Cir. 2003). We cannot conclude that, in this case, such a decision turns on a purely
legal question.
47
No. 08-30512
for plaintiffs’ Fourth Amendment claims with respect to the raid on Club Retro
and the searches and seizures of Lyle, Dar, Erica, Olivia, Christine, Carley,
Mabou, and Jonathan; and denying qualified immunity for Erica’s Fourth
Amendment false arrest claim; and dismissing plaintiffs’ due process claims
without prejudice. We AFFIRM on different grounds the district court’s order
denying qualified immunity for Lyle’s and Dar’s Fourth Amendment false arrest
claims. We REVERSE the district court’s order denying qualified immunity for
Club Retro’s, Lyle’s, and Dar’s First Amendment claims; and denying qualified
immunity for plaintiffs’ Fourteenth Amendment equal protection claims. We
DISMISS the appeal of the district court’s order dismissing plaintiffs’
substantive due process claims without prejudice. We REMAND to the district
court for proceedings not inconsistent with this opinion. Defendants-appellants
shall bear the costs of this appeal.
48