Orgain v. Wicomico County, Maryland

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1698
ROBERT ORGAIN; REBECCA ORGAIN; M31 ANDROMEDA ENTERTAINMENT,
LLC,
Plaintiffs – Appellants,
v.
CITY OF SALISBURY, MARYLAND, a Maryland municipal
corporation; CHIEF OF POLICE ALLAN J. WEBSTER, in his
individual and official capacity; WICOMICO COUNTY,
MARYLAND, a Maryland corporate body; LEO MCNEIL, in his
individual and official capacity as Board Member of the
Wicomico County Board of License Commissioners; W.C.
HOLLOWAY, in his individual and official capacity as Board
Member of the Wicomico County Board of License
Commissioners; SHIRLEY C. GRAY, in her individual and
official capacity as Board Member of the Wicomico County
Board of License Commissioners,
Defendants – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District
Judge. (1:02-cv-02797-BEL)
Argued: October 30, 2008 Decided: December 29, 2008
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Carolyn Elefant, Washington, D.C., for Appellants.
Daniel Karp, KARPINSKI, COLARESI & KARP, P.A., Baltimore,
Maryland; David Randolph Thompson, COWDREY, THOMPSON & KARSTEN,
P.A., Easton, Maryland, for Appellees. ON BRIEF: Victoria M.
Shearer, KARPINSKI, COLARESI & KARP, P.A., Baltimore, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In this civil rights action alleging violations of the
Fourteenth Amendment’s Equal Protection Clause and Title 42
U.S.C. § 1981, plaintiffs Robert Orgain, Rebecca Orgain, and M31
Andromeda Entertainment, LLC (collectively Plaintiffs) appeal
from the district court’s grant of summary judgment adverse to
them. Plaintiffs’ claims are based upon their core allegation
that the City of Salisbury, Maryland, its police chief (in his
individual and official capacities), and the three members of
Wicomico County’s Board of License Commissioners (in their
individual and official capacities), drove their nightclub out
of business, because it hosted nights with a hip-hop music
format that attracted a predominantly black clientele.
For reasons that follow, we affirm.
I.
On October 25, 2000, Robert and Rebecca Orgain (the
Orgains), through M31 Andromeda Entertainment, LLC, opened a
13,000 square-foot, 750-person occupancy-limit nightclub, named
Andromeda, in Salisbury, Maryland. 1 Salisbury is the county seat
1
Because this is an appeal from the grant of summary
judgment, we set forth the facts, based upon the evidence,
viewed in the light most favorable to Plaintiffs. Smith v.
Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996)
(en banc).
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of Wicomico County, Maryland. Andromeda’s profits derived
primarily from the sale of alcoholic beverages to its customers,
pursuant to a Class D liquor license issued to the Orgains by
Wicomico County’s Board of License Commissioners (the Liquor
Board). The Orgains’ Class D liquor license limited them to
admitting customers who were at least twenty-one years old.
Andromeda operated at least four nights per week and
offered both live bands and disc jockeys, with each night having
a different theme. Hip-hop nights at Andromeda, initially held
only on Wednesday nights, proved to be the most popular and drew
a predominantly black clientele. At some later point in time,
Saturday nights also became hip-hop nights at Andromeda.
Unfortunately, Andromeda soon became a trouble spot for the
Salisbury Police Department (the SPD). By August 10, 2001, the
SPD had received fifty-eight Calls for Service concerning
incidents at or near Andromeda. 2 Some Calls for Service were for
petty offenses such as vandalism. Many others, however, were
for more serious crimes such as assaults, thefts, disorderly
conduct, and shootings.
2
According to the SPD’s website, a Call for Service is “an
event occurring in or near the City of Salisbury to which one or
more Salisbury Police employees must respond to evaluate or take
action, or an event that comes to the attention of police or is
initiated by police that requires formal documentation (an
offense report, supplemental report, or accident report).”
Definition of “Call for Service,” http://www.salisburypd.com/
FAQ/faq.html (as of June 5, 2007).
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Andromeda’s first shooting incident occurred at
approximately 2:30 a.m., on a Wednesday hip-hop night.
Specifically, at approximately 2:30 a.m., on Thursday, August 9,
2001, a fight took place near the vehicle of an Andromeda
customer parked in Andromeda’s parking lot, resulting in a gun
being fired at the customer’s vehicle. The shooting left a
bullet hole in the rear hatch of the customer’s vehicle and a
bullet in its passenger compartment.
Salisbury Police Chief Allan Webster (Chief Webster)
promptly followed-up by sending Robert Orgain the following
letter, on August 10, 2001:
Dear Mr. Orgain:
According to the crime statistics compiled by the
Salisbury Police Department, your business
establishment known as Andromeda has generated fifty-
eight (58) calls for service since October 25, 2000.
The nature of the calls run from weapons possession to
traffic accidents. Of the fifty-eight (58) calls,
twenty-six (26) of those calls are violence related.
On August 9, 2001, the Salisbury Police
Department again responded to a large altercation at
your business. The repeated calls associated with
violence cause me great concern, not only to the
safety of your patrons, but to the officers of the
Salisbury Police Department. These calls cause a
burden to our resources that ultimately affect our
policing efforts throughout the City.
Please review your internal policies concerning
alcohol consumption and security to assist us in
decreasing the incidents at the Andromeda. Should the
violence related calls continue, I will discuss the
issue with Mr. Davis Ruark, State’s Attorney for
Wicomico County, to explore violations of the nuisance
law.
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(J.A. 810). Chief Webster copied the Liquor Board, State’s
Attorney Davis Ruark, and Salisbury Mayor Barrie Tilghman on the
letter.
After the Liquor Board received its copy of Chief Webster’s
letter to Robert Orgain, the Liquor Board sent its own warning
letter to the Orgains on August 15, 2001, stating the following:
The Wicomico County Board of License
Commissioners received a copy of a letter, dated
August 10, 2001, sent to you from Chief Allan Webster,
Salisbury Police Department. This letter stated that
there have been 58 calls for police service since
October [2]5, 2000 at your nightclub, 26 of which were
violence related. The policy of this Board is that
you, as a licensee, must maintain peace and safety for
your patrons at all times. Alcoholic beverage
licenses are issued for the convenience of the public.
This is to notify you that, should this type of
activity continue at your licensed premise, a show-
cause order will be issued against you and your
license may be suspended or revoked as a result of the
hearing. Please make a more diligent effort to
control alcohol consumption and provide safety for
your patrons.
(J.A. 815).
Robert Orgain responded to the Liquor Board by letter dated
August 20, 2001, in which letter he denied ever having received
Chief Webster’s letter; took issue with the Calls for Service
statistics cited by the Liquor Board; stated that he had drafted
correspondence to Chief Webster requesting copies of the police
reports supporting such statistics; stated that recent (but
unspecified) management changes at Andromeda had been
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implemented; and stated that he would keep the Liquor Board
advised. Robert Orgain copied Chief Webster, State’s Attorney
Davis Ruark, and Salisbury Mayor Barrie Tilghman on his letter.
Despite whatever positive management changes may have taken
place at Andromeda, on November 9, 2001, the Wicomico County
Alcohol Task Force discovered five underage drinkers at
Andromeda, each who had gained entrance to Andromeda by using a
false driver’s license. Additionally, all five underage
drinkers failed breathalyzer tests.
After the Task Force officers cited the Orgains for five
counts of allowing an underage person to be on the premises, and
five counts of serving alcohol to an underage person, the Liquor
Board issued the Orgains a show-cause order to appear for a
hearing on the charges on December 13, 2001. Four days after
such hearing, at which hearing the Liquor Board heard live
testimony and the Orgains were represented by counsel, the
Liquor Board found the Orgains guilty of ten violations of
Maryland’s liquor laws, fined them $5,000.00, and suspended
their liquor license for five days. Although the Orgains
initially noted an appeal of the suspension to state court, they
later withdrew such appeal and served their suspension in mid-
January 2002.
Notably, the Orgains served their liquor license suspension
after two more shooting incidents occurred on hip-hop nights at
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Andromeda. On Wednesday, January 2, 2002, at 11:38 p.m., a
complainant advised the SPD, via a Call for Service, of shots
fired in Andromeda’s parking lot. On Thursday, January 10,
2002, at 2:30 a.m., a complainant advised the SPD, via a Call
for Service, “THAT A GUN SHOT HAS GONE OFF IN THE BAR. ONE
EMPLOYEE WAS STRUCK OVER THE HEAD WITH A BOTTLE AND TRANSPORTED
TO [the hospital].” (J.A. 1078).
The day after this latest shooting incident, Chief Webster,
via hand-delivery by an SPD officer, sent Robert Orgain the
following letter:
Dear Mr. Orgain:
In August of 2001, I sent you a letter concerning
calls for service at the Andromeda Nightclub. Of the
fifty-eight calls, almost half were of a violent
nature. I asked you to take steps to reduce these
incidents in the hope it would decrease violence at
your establishment.
Since my letter, the Salisbury Police Department
has responded to an additional twenty-six incidents at
your nightclub. Of these twenty-six incidents, eleven
have been violence related. Of the eleven, two of the
cases involved the discharging of a handgun.
It is quite apparent to me that whatever measures
you have taken are ineffective which creates a very
unsafe condition. I have discussed this continuing
problem with the State’s Attorney for Wicomico County
who has also expressed grave concern for your staff,
patrons and the police officers who respond to these
incidents.
As a result of your inability to maintain a safe
establishment, I will be seeking criminal sanctions
based upon this history of violence at your
establishment.
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(J.A. 938). Chief Webster again copied the Liquor Board,
State’s Attorney Davis Ruark, and Salisbury Mayor Barrie
Tilghman on his letter.
On the same day that Robert Orgain received Chief Webster’s
letter dated January 11, 2002, Robert Orgain telephoned Chief
Webster to ask “what this was all about and what the nature of
it was.” (J.A. 2584). In response, Chief Webster declined to
discuss the matter with Robert Orgain and informed him that he
planned to meet with the State’s Attorney and would get back to
him after that.
Around the same date, Chief Webster informed Salisbury
Mayor Barrie Tilghman of his intent to seek charges against the
Orgains for maintaining a public nuisance. Also around the same
date, Major Jeffrey Livingston, Salisbury’s Assistant Police
Chief, forwarded a list of Andromeda’s Calls for Service to the
State’s Attorney for Wicomico County. Notably, no criminal
sanctions or charges were ever actually filed against the
Plaintiffs.
In a letter dated January 15, 2002, Robert Orgain responded
in writing to Chief Webster’s January 11, 2002 letter. Robert
Orgain advised Chief Webster about steps taken at Andromeda,
since Chief Webster’s August 2001 letter, to increase security,
such as physical examination of customers’ purses and a full
body screening utilizing a metal detector. He also advised
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Chief Webster that he had fired an employee whom he had learned
accepted cash in exchange for allowing customers to enter
Andromeda through the rear door, thereby escaping security
screening. Additionally, he stated that, as a result of the
shooting incidents, “we have decided to close on Wednesday night
for the foreseeable future and implement certain dress code and
other additional preventative measures to further enhance the
safety of our facility.” (J.A. 941). Chief Webster never had
another telephone conversation nor a letter exchange with Robert
Orgain.
In separate letters, each dated February 7, 2002, Chief
Webster notified seven other businesses that they too had
excessive Calls for Service, including violence related calls,
and urged such businesses to assist the SPD “in reducing the
number of calls to your property.” (J.A. 948). Of relevance to
the Orgains’ claim under the Equal Protection Clause, each
letter notified the recipient that “[i]f you need assistance
with this effort, contact Lieutenant Elmer Davis in our
Community Affairs Section at 410-548-3165.” Id.Serious Calls for Service to Andromeda continued after
Robert Orgain’s January 15, 2002 letter to Chief Webster, albeit
by a lesser amount. The most serious incidents were as follows.
On Sunday, February 10, 2002, at 12:54 a.m., the SPD received a
Call for Service in which the complainant advised that “HE WAS
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BEATEN AND 750 DOLLARS WAS TAKEN FROM HIM LAST NIGHT AT THE
ANDROMEDA.” (J.A. 1078). On Sunday, May 12, 2002, at 2:34
a.m., the SPD received a Call for Service because, between 2:00
a.m. and 2:30 a.m., an Andromeda customer had been shot in
Andromeda’s parking lot as he was leaving the club. On Sunday,
May 19, 2002, at 2:00 a.m., the SPD received a Call for Service
to Andromeda, which the police blotter described as follows:
“COMP ADVISED A SUBJECT PULLED A 10-32 OUT ON HIM. AS OFFICER
WAS AWAITING THE ARRIVAL OF THE COMPLAINANT, OFFICER ADVISED
SHOTS FIRED AT 0202 HRS, POSSIBLY TWO DIFFERENT SHOOTERS.”
(J.A. 1079). Each of these incidents occurred in the early
morning hours of a hip-hop night.
Just two days before this latest shooting incident, on May
17, 2002, the Liquor Board issued the Orgains a second order to
show cause why their liquor license should not be suspended or
revoked. The Orgains were notified to appear before the Liquor
Board at a hearing on the matter on June 4, 2002.
At such hearing, Major Livingston of the SPD, whom the
Liquor Board had summoned as a witness, testified on behalf of
the SPD. Major Livingston testified that from January 1, 2001
to May 2002, the SPD had received forty-four Calls for Service
for Andromeda “that we felt were of a violent nature or had the
potential for some type of violence.” (J.A. 1000). Major
Livingston summarized each of these forty-four calls, describing
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Calls for Service relating to fights, disorderly conduct, large
crowds, and shootings. At no time did he mention hip-hop music
or the racial composition of Andromeda’s clientele. 3
The Orgains had a full opportunity to be heard at the
hearing before the Liquor Board. In her testimony, Rebecca
Orgain did not contend that any Calls for Service on the SPD’s
books were fabricated. Indeed, she testified that Andromeda had
placed most of the Calls for Service as part of its efforts to
maintain order. She attributed the violence related Calls for
Service at Andromeda to a local criminal element and testified
the club had hired off-duty police officers from Prince George’s
County in order to reduce the number of Calls for Service.
Robert Orgain supplemented his wife’s testimony. Among
other things, he informed the Liquor Board that, after the May
12, 2002 shooting incident, Andromeda had begun barricading its
parking lot at closing time. This measure, he explained, was
designed to prevent people bent on causing trouble from getting
near the club when the crowd was letting out.
The Orgains called as a witness their adult son Ken Orgain,
who worked at Andromeda. He testified that, in his view, a lot
of the problems at Andromeda were likely caused by eighteen to
3
Calls For Service records from the middle of March 2002 to
the middle of May 2002 were unavailable because of a computer
virus that had infected the SPD’s computer system.
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twenty-one year olds who binge drink and then engage in mischief
for lack of better things to do in Salisbury. The Orgains also
called James Fountain Smith, who worked at Andromeda as a part-
time disc jockey. He remarked during the hearing that Andromeda
“‘deal[s] with ninety percent more black people than other
establishments.’” (J.A. 554) (alteration in original).
Towards the end of the hearing, the Liquor Board invited
Assistant Wicomico County State’s Attorney Beau Oglesby (State’s
Attorney Oglesby), who was attending the hearing as an observer,
to speak. In response, he explained that Chief Webster had
approached his office for guidance on whether Andromeda could be
prosecuted under the nuisance laws. State’s Attorney Oglesby
advised the Liquor Board that his office had reviewed
Andromeda’s Calls for Service record, and was prepared to
present evidence to a soon-to-be-convened grand jury. He stated
that there was no telling whether the grand jury would indict,
but that the degree of violence warranted a formal
investigation.
The Liquor Board members questioned State’s Attorney
Oglesby, who opined that it was the responsibility of Andromeda,
not the SPD, to maintain order. He suggested that the club use
video cameras as a security device. He also stated that he did
not see a similar pattern of violence at other county
establishments.
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The Board then asked for closing comments. Rebecca Orgain
insisted that the violence occurring at Andromeda was
symptomatic of a larger community problem. As proof, she
entered into evidence the Calls for Service history for Brew
River, a large restaurant/nightclub in Salisbury. She pointed
out that Brew River had problems with violence similar to
Andromeda even though Brew River’s owner was highly experienced. 4
Commenting on Rebecca Orgain’s testimony, Liquor Board
Commissioner W.C. Holloway stated that it was his understanding
that Brew River’s Calls for Service were largely traffic
related. He also stated that the Liquor Board had a duty to
protect the community from shootings.
Ultimately, the Liquor Board concluded the Orgains had
violated Maryland Code Art 2B § 10-401(a)(2) and suspended their
liquor license for thirty-five days. The Orgains did not avail
themselves of their right to appeal the Liquor Board’s decision
to state court. Instead, on June 12, 2002, the Orgains
surrendered their liquor license and permanently closed
Andromeda.
4
In the present case, Plaintiffs allege that Brew River
serves a predominantly white clientele, and therefore, the SPD
turned a blind eye to the violence at Brew River while clamping
down on Andromeda. At no time during the hearing before the
Liquor Board, did Plaintiffs make this argument.
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On August 22, 2002, Plaintiffs filed the present civil
action in the United States District Court for the District of
Maryland, asserting both federal and state law claims. The
Second Amended Complaint, the one relevant to the present
appeal, names the following as defendants: (1) the City of
Salisbury; (2) Chief Webster, in both his individual and
official capacities; (3) Wicomico County; (4) Liquor Board
Commissioner Shirley Gray, in both her individual and official
capacities; (5) Liquor Board Commissioner Leo McNeil, in both
his individual and official capacities; and (6) Liquor Board
Commissioner W.C. Holloway, in both his individual and official
capacities (collectively Defendants). The Second Amended
Complaint alleged a total of six counts. Counts I, II, and III
were based upon federal law, and Counts IV, V, and VI were based
upon state law.
Only Counts I and III are at issue in the present appeal.
Count I, brought pursuant to 42 U.S.C. § 1983, alleged
Defendants violated Plaintiffs’ rights under the Fourteenth
Amendment’s Equal Protection Clause, by treating Andromeda less
favorably than other similarly situated night clubs. Count III,
brought pursuant to 42 U.S.C. § 1981, alleges Defendants
intentionally interfered with Plaintiffs’ rights to form
contracts with black customers and black disc jockeys.
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Following discovery, Defendants moved for summary judgment
on all counts. Plaintiffs then voluntarily dismissed Count VI
(state law defamation) as to all Defendants and all counts as to
Wicomico County, except for Count IV (violation of the Maryland
Declaration of Rights). The district court granted Defendants’
motion for summary judgment with respect to Counts I, II, and
III and dismissed, without prejudice, Counts IV and V.
Following the district court’s entry of final judgment in
favor of Defendants, Plaintiffs noted this timely appeal. On
appeal, Plaintiffs challenge the district court’s grant of
summary judgment with respect to Count I (Equal Protection) and
Count III (§ 1981), in favor of (1) Chief Webster, in his
individual and official capacities; (2) the City; and (3) Liquor
Board Commissioners Shirley Gray, Leo McNeil, and W.C. Holloway,
in their individual and official capacities.
II.
We review the district court’s grant of summary judgment de
novo. See Nat’l City Bank of Ind. v. Turnbaugh, 463 F.3d 325,
329 (4th Cir. 2006). Summary judgment is appropriate when,
after adequate time for discovery, a party has failed to make a
“showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett,
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477 U.S. 317, 322 (1986). A genuine issue of fact exists when
there is sufficient evidence on which a reasonable jury could
return a verdict in favor of the non-moving party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In resolving
a motion for summary judgment, the evidence presented must
always be taken in the light most favorable to the non-moving
party. See Smith, 84 F.3d at 675. However, “neither
unsupported speculation, nor evidence that is merely colorable
or not significantly probative will suffice to defeat a motion
for summary judgment; rather, if the adverse party fails to
bring forth facts showing that reasonable minds could differ on
a material point then, regardless of any proof or evidentiary
requirements imposed by the substantive law, summary judgment,
if appropriate, shall be entered.” Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (internal
quotation marks, alteration marks, and citations omitted).
III.
We first address Plaintiffs’ challenge to the district
court’s grant of summary judgment in favor of Chief Webster in
his individual capacity with respect to Count I, alleging
violation of the Fourteenth Amendment’s Equal Protection Clause.
Plaintiff’s challenge is without merit.
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The Fourteenth Amendment’s Equal Protection Clause states,
in relevant part, that “[n]o State shall . . . deny to any
person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. The Equal Protection
Clause “limits all state action, prohibiting any state from
denying a person equal protection through the enactment,
administration, or enforcement of its laws and regulations.”
Front Royal & Warren County Indus. Park Corp. v. Town of Front
Royal, 135 F.3d 275, 289 (4th Cir. 1998) (internal quotation
marks & emphasis omitted).
Plaintiffs premise their Equal Protection claim against
Chief Webster in his individual capacity on the following
theories: (1) Chief Webster intentionally caused there to be a
substantially greater police presence in the parking lot of
Andromeda on hip-hop nights, which nights attracted
predominantly black customers, than on non-hip-hop nights at
Andromeda or on any night of the week at Brew River, which
nights attracted predominantly white customers, in an effort to
drive away black customers from Andromeda; (2) Chief Webster
threatened Andromeda with prosecution of the nuisance laws, but
did not so threaten Brew River, because Andromeda’s customers on
hip-hop nights were predominantly black, while Brew River’s
customers on any night of the week were predominantly white; and
(3) Chief Webster intentionally refused to invite the Orgains to
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contact Lieutenant Elmer Davis in the SPD’s Community Affairs
Section if they needed assistance with Andromeda’s crime
problems, which invitation he had expressly extended to other
businesses in his February 7, 2002 letters.
At a macro level, Plaintiffs’ Equal Protection claim
against Chief Webster in his individual capacity theorizes that
facially neutral laws and policies were applied against them in
an intentionally racially discriminatory manner. See Yick Wo v.
Hopkins, 118 U.S. 356, 373-74 (1886) (“Though the law itself be
fair on its face, and impartial in appearance, yet, if it is
applied and administered by public authority with an evil eye
and an unequal hand, so as practically to make unjust and
illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the constitution.”);
Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003)
(allegation that facially neutral law or policy has been applied
in an intentionally discriminatory manner states claim under the
Equal Protection Clause of the Fourteenth Amendment). Notably,
the Equal Protection Clause does not require Plaintiffs “to
prove that the challenged action rested solely on racially
discriminatory purposes.” Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 265 (1977). Rather, Plaintiffs need
only establish that racial animus was one of several factors
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that, taken together, moved Chief Webster to act as he did.
Williams, 326 F.3d at 584-85.
Applying the legal principles we just set forth to
Plaintiffs’ first and second theories of liability, Plaintiffs,
at the summary judgment stage, were required to proffer
sufficient evidence for a reasonable jury to find that: (1)
Andromeda, on hip-hop nights, was similarly situated to
Andromeda on non-hip-hop nights and Brew River on any night of
the week; and (2) Chief Webster intentionally caused a
substantially greater police presence at Andromeda on hip-hop
nights than Andromeda on non-hip-hop nights and Brew River on
any night of the week and threatened Plaintiffs with prosecution
for violation of the nuisance laws without similarly threatening
Brew River, because Andromeda’s customers on hip-hop nights were
predominantly black. See Veney v. Wyche, 293 F.3d 726, 730 (4th
Cir. 2002) (“To succeed on an equal protection claim,
[plaintiff] must first demonstrate that he has been treated
differently from others with whom he is similarly situated and
that the unequal treatment was the result of intentional or
purposeful discrimination.”) (internal quotation marks omitted).
Notably, we agree with Plaintiffs’ argument that the
district court erred in requiring them to prove, as an element
of their Equal Protection claim against Chief Webster pertaining
to the level of police presence at Andromeda on hip-hop nights,
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that the SPD’s level of presence at Andromeda on hip-hop nights
was objectively unreasonable under the circumstances. While
proof of objective unreasonableness, the touchstone of a Fourth
Amendment violation, would be probative on the issue of
discriminatory intent in the Equal Protection context, objective
unreasonableness is not a stand-alone element of an Equal
Protection claim. See Veney, 293 F.3d at 730; cf. Whren v.
United States, 517 U.S. 806, 813 (1996) (“We think [our] cases
foreclose any argument that the constitutional reasonableness of
traffic stops depends on the actual motivations of the
individual officers involved. We of course agree with
petitioners that the Constitution prohibits selective
enforcement of the law based on considerations such as race.
But the constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal Protection
Clause, not the Fourth Amendment. Subjective intentions play no
role in ordinary, probable-cause Fourth Amendment analysis.”).
As our further analysis will explain, however, the district
court’s error in this regard was harmless.
As Plaintiffs’ primary evidence in support of their
allegation of substantially greater police presence at Andromeda
on hip-hop nights, Plaintiffs offered an affidavit by Robert
Orgain. In its Memorandum Opinion addressing Defendants’ motion
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for summary judgment, the district court accurately summarized
Robert Orgain’s affidavit on this issue as follows:
[Robert] Orgain stated that on hip hop nights,
one to two Salisbury patrol cars (with one or two
officers per car) would regularly park across the
street from the club. He described the cars as being
“intermittently present” for “limited periods
throughout the evening.” “Periodically,” he added,
“the police would be present near the property (one or
two blocks away) where they could observe patrons
leaving.” According to [Robert] Orgain, the “police
presence exuded the appearance of setting a trap.”
[Robert] Orgain also stated that the police
patrolled the Andromeda parking lot. He observed at
least one squad car and one officer on the lot
“virtually every Wednesday night.” On most hip hop
nights, “multiple” patrol cars would enter the parking
lot on “multiple occasions, perhaps as much as once
every half hour.”
(J.A. 566-67) (footnotes omitted).
The district court immediately went on to explain:
At the summary judgment hearing, the Court
established that the police did not patrol inside
Andromeda, and that they did not activate their
emergency lights while parked or patrolling.
Plaintiffs do not allege that the police set up
roadblocks or checkpoints. Their core allegation,
therefore, is of a “looming” police presence on hip
hop nights. They contend that the police presence was
excessive, that the police were more in evidence at
Andromeda than they were at other Salisbury clubs, and
that the police presence deterred customers from
patronizing the club.
(J.A. 567).
Assuming arguendo that Plaintiffs proffered sufficient
evidence for a reasonable jury to find the SPD had a
substantially greater presence at Andromeda on hip-hop nights
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than at Andromeda on non-hip-hop nights and Brew River on any
night of the week, we hold that Plaintiffs failed to proffer
sufficient evidence for a reasonable jury to find that
Andromeda, on hip-hop nights, was similarly situated to
Andromeda on non-hip-hop nights or Brew River on any night of
the week. See Cleburne v. Cleburne Living Center, Inc., 473
U.S. 432, 439 (1985) (Equal Protection Clause “is essentially a
direction that all persons similarly situated should be treated
alike.”). From the record, a reasonable jury could only find
that, in general, hip-hop nights at Andromeda presented a
greater threat to public safety than non-hip-hop nights at
Andromeda or any night of the week at Brew River. Cf. United
States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996) (criminal
offenders are similarly situated for Equal Protection analysis
“when their circumstances present no distinguishable legitimate
prosecutorial factors that might justify making different
prosecutorial decisions with respect to them”). First, the SPD
was not called upon by employees of Brew River, as it was by
employees of Andromeda on hip-hop nights, to disperse unruly
crowds after closing time. Second, despite the fact that
Andromeda was generally open at least four nights per week
between October 25, 2000 and January 11, 2002 (the date of Chief
Webster’s second warning letter to Robert Orgain), thirty-two of
thirty-six Calls for Service to Andromeda relating to violent
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crimes (88%) occurred on hip-hop nights. Third, many Calls for
Service to Brew River relating to violent crimes were of a far
less serious nature than the Calls for Service to Andromeda on
hip-hop nights relating to violent crimes. For example, during
the same time period of October 25, 2000 to January 11, 2002,
Andromeda had three shooting incidents, each on a different hip-
hop night, while Brew River had none. Also, during the same
time period, there were two assaults on police officers at
Andromeda, but none at Brew River. Fourth, Andromeda had two
more shooting incidents in May 2002, each on a hip-hop night.
Brew River never had a shooting incident. 5 In sum, we hold that
Plaintiffs failed to proffer sufficient evidence on the
similarly situated element of their substantially-greater-
police-presence theory and their discriminatory-threat-of-
prosecution theory, with respect to their Equal Protection
claim, for such theories to survive Chief Webster’s motion for
summary judgment.
Although this failure of proof alone is sufficient for us
to affirm the district court, we now turn to consider
Plaintiffs’ proffer of evidence on the racially discriminatory
intent element of these same two theories. In this regard,
5
Plaintiffs do not dispute that on March 3, 2002, Brew
River had a Call for Service regarding a “Man with Gun,” that
turned out to be a false alarm. (J.A. 3100).
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Plaintiffs primarily rely on the following: (1) during the time
of Andromeda’s operation, Plaintiffs contacted the NAACP on
several occasions, suggesting that the SPD might be showing a
stronger presence at Andromeda as compared to other night clubs
in Salisbury, because of Andromeda’s predominantly black
clientele on hip-hop nights; (2) according to deposition
testimony by Robert Orgain, on a hip-hop night in August 2001,
SPD Officer Morto, who had responded to a midnight call from
Andromeda for an ambulance for a man who had passed out waiting
in line for admittance, referred to the approximately 100 to 150
primarily black customers waiting in line as a “[b]lack mob,”
(J.A. 2541); (3) according to deposition testimony by Andromeda
employee Freedom Ford, following the January 2, 2002 shooting
incident at Andromeda, SPD Detective Barry Tucker suggested to
him that Andromeda should change its format on Wednesday nights
from hip-hop to country or “something like that” to “keep the
trouble away,” (J.A. 2815); (4) when the owner of Club Vissage,
also located in Salisbury, asked Chief Webster’s advice
regarding how to lessen the violence on hip-hop nights at his
club, Chief Webster suggested tightening the dress code,
stopping the serving of alcohol earlier in the evening, and
changing the format to country western; (5) Chief Webster
refused to return a phone call from Robert Orgain, which Robert
Orgain made in response to Chief Webster’s January 11, 2002
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letter; (6) Chief Webster copied the Liquor Board, the State’s
Attorney, and the Mayor on his two warning letters to Robert
Orgain, but did not copy the same officials on his February 7,
2002 letters to the seven other businesses in which Chief
Webster requested management’s assistance in reducing the number
of Calls for Service; (7) Harry Tindall, Andromeda’s chief of
security, testified in deposition that his friend, SPD Officer
Chris Davis, privately teased him for working at a “n----r
club.” (J.A. 2716). These anecdotal bits of circumstantial
evidence, only three of which even directly pertain to Chief
Webster, viewed collectively and in the light most favorable to
Plaintiffs, fall decidedly short of the evidence necessary for a
reasonable jury to find that any additional police presence at
Andromeda on hip-hop nights, as compared to Andromeda on non-
hip-hop nights or Brew River on any night of the week, was
intentionally caused by Chief Webster, in part, because
Andromeda’s customers on hip-hop nights were predominantly
black. The same goes for Plaintiffs’ theory that Chief Webster
threatened Andromeda with prosecution of the nuisance laws, but
did not so threaten Brew River, because Andromeda’s customers on
hip-hop nights were predominantly black.
Indeed, a reasonable jury, viewing the evidence in the
record, in the light most favorable to Plaintiffs, could only
find that any comparable increase of police presence at
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Andromeda on hip-hop nights and Chief Webster’s threats to
prosecute Andromeda under the nuisance laws were solely in
response to Chief Webster’s genuine concern for public safety,
given not just the quantity, but the more serious nature of
Andromeda’s record of violent crimes on hip-hop nights and based
upon his law enforcement experience. For example, Chief Webster
did not send a letter to Robert Orgain regarding violence at
Andromeda until a shooting incident had occurred. In fact,
Chief Webster sent each of his letters to Robert Orgain the day
after a shooting incident at Andromeda on a hip-hop night had
occurred. Such evidence strongly indicates that the shooting
incidents were a critical decision in Chief Webster’s decision
to recommend Andromeda for prosecution. 6 As Chief Webster
testified in his deposition, without contradiction in the
record, “the things that really concerned me and drew my
attention to the Andromeda were the shootings, so the actual
shootings that had taken place inside and outside the
6
Chief Webster sent his first letter to Andromeda the day
after the August 9, 2001 shooting incident. While Plaintiffs
baldly deny in their brief that this shooting incident occurred,
they have forecast no evidence that Chief Webster did not
believe such incident had actually occurred nor any evidence to
create a triable issue of fact that such incident never
occurred.
Chief Webster sent his second letter on January 11, 2002,
specifically referencing the fact that two incidents involving
the discharge of handguns had recently occurred.
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Andromeda.” (J.A. 1692). In sum, assuming arguendo that
Plaintiffs have forecast sufficient evidence for a reasonable
jury to find that Andromeda on hip-hop nights was similarly
situated to Andromeda on non-hip-hop nights and Brew River on
any night of the week, Plaintiffs still lose on the intentional
discrimination element. See Sunrise Corp. of Myrtle Beach v.
City of Myrtle Beach, 420 F.3d 322, 328-29 (4th Cir. 2005)
(disparate treatment alone is insufficient to support
constitutional remedy under Equal Protection Clause).
Similarly, Plaintiffs’ theory that Chief Webster violated
the Equal Protection Clause by failing to notify them by letter
or otherwise that they could contact Salisbury’s Community
Affairs Division for help with their crime problem while doing
so in letters to seven other businesses in Salisbury, fails for
lack of evidence of racially discriminatory intent on the part
of Chief Webster. As we just discussed, the record contains
insufficient evidence for a reasonable jury to find that Chief
Webster harbored racially discriminatory animus toward blacks.
Moreover, Plaintiffs’ theory here is severely undercut by the
fact that one of the seven businesses to which Chief Webster
sent a letter offering Lieutenant Elmer Davis as a helpful
contact was Club Vissage, which club Keith Orgain, son of the
Orgains and employee of Andromeda, stated in a sworn affidavit
“catered to African Americans . . . .” (J.A. 2877). Any
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finding that race played some role in Chief Webster’s failure to
notify Plaintiffs by letter or otherwise that they could contact
Salisbury’s Community Affairs Division for help with their crime
problem would be purely speculative. See Bouchat, 346 F.3d at
522 (unsupported speculation will not suffice to defeat a motion
for summary judgment).
In conclusion, we affirm the district court’s grant of
summary judgment in favor of Chief Webster in his individual
capacity with respect to Count I, alleging violation of the
Fourteenth Amendment’s Equal Protection Clause. 7
IV.
We next address Plaintiffs’ argument that the district
court erred in granting summary judgment in favor of the City
and Chief Webster, in his official capacity, with respect to
Count I, alleging violation of the Equal Protection Clause. We
reject Plaintiffs’ argument as without merit.
7
To the extent Plaintiffs have made arguments on this issue
that we have not specifically addressed, we find such arguments
without merit.
We also note that although Chief Webster, in his individual
capacity, raised the defense of qualified immunity with respect
to Count I, the district court, having found no violation of the
Equal Protection Clause, did not reach the merits of his
qualified immunity defense. Neither do we.
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Plaintiffs premise Count I against the City and Chief
Webster, in his official capacity, on the theory that “the City
and Webster, a policymaking authority, can be held liable for a
policy of racially motivated selective enforcement that drove
the Orgains out of business.” (Plaintiffs’ Reply Br. at 5-6).
In support of this theory, Plaintiffs rely upon the same
evidence they proffered in support of their Equal Protection
claim against Chief Webster, in his individual capacity.
Treating Chief Webster in his official capacity as the
City, Edwards v. City of Goldsboro, 178 F.3d 231, 244 & 244 n.8
(4th Cir. 1999), Plaintiffs’ Equal Protection claim against the
City fails, because “a municipality may not be found liable for
a constitutional violation in the absence of an unconstitutional
act on the part of at least one individual municipal actor.”
International Ground Transp. v. Mayor and City Council of Ocean
City, Md., 475 F.3d 214, 219 (4th Cir. 2007). Accordingly, we
affirm the district court’s grant of summary judgment in favor
of the City (and Chief Webster in his official capacity), with
respect to Count I.
V.
We now turn to consider the Orgains’ argument that the
district court erred in granting summary judgment in favor of
Liquor Board Commissioners Shirley Gray, Leo McNeil, and W.C.
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Holloway (collectively the Liquor Board Commissioners), in their
individual capacities, with respect to Count I, alleging
violation of the Equal Protection Clause. 8 The Orgains theorize
that the Liquor Board Commissioners violated their rights under
the Equal Protection Clause by issuing a five-day suspension of
their liquor license in December 2001 and subsequently issuing a
thirty-five-day suspension of their liquor license in June 2002.
With respect to the five-day suspension, the Orgains allege that
the Liquor Board Commissioners treated them more harshly than
the holder of the liquor license under which Brew River operated
by imposing a fine-only punishment on such holder for under-age
drinking violations, while imposing a fine plus a suspension on
them for under-age drinking violations.
The Orgains’ assignment of error on this issue is without
merit. Below, the district court asked the Orgains to marshal
their proof of racially discriminatory intent on the part of the
Liquor Board Commissioners. The Orgains pointed to the
following three factual circumstances: (1) the two orders
suspending the Orgains’ liquor license did not set forth
detailed findings of fact; (2) a thirty-five-day suspension was
the longest suspension ever issued by the Liquor Board; and (3)
8
We agree with the district court that only the Orgains, as
the actual holders of the liquor license under which Andromeda
operated, have standing to sue the Liquor Board Commissioners.
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during the June 4, 2002 hearing before the Liquor Board, James
Fountain Smith, an assistant disc jockey at Andromeda remarked
that Andromeda “‘deal[s] with ninety percent more black people
than other establishments.’” (J.A. 554) (alteration in
original).
The district court concluded that no fair-minded jury could
find that race played any role in the Liquor Board
Commissioners’ individual votes regarding the suspensions. In
this regard, the district court first noted that the Liquor
Board’s Chairman, Leo McNeil, is himself black. By noting this
fact, the district court was apparently relying upon the common
sense notion that, as a member of the same race as the
predominant number of Andromeda’s customers on hip-hop nights,
Liquor Board Commissioner Leo McNeil likely did not take the
race of such customers into account in twice voting to suspend
the Orgains’ liquor license. See Neely v. United States Postal
Serv., 2007 WL 4389473 (E.D.Pa. Dec. 12, 2007) (“Although the
fact that a [decision-maker] is a member of the same protected
class as the plaintiff does not preclude a successful
discrimination claim, it substantially weakens any inference of
discrimination.”). Id. at *8 n.4. Second, the district court
observed that no Maryland law required the Liquor Board to make
factual findings when issuing a suspension. Third, the district
court noted that Liquor Board Commissioner W.C. Holloway
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testified during his deposition in this case, without
contradiction, that the Liquor Board normally does not provide a
factual summary in its orders of suspension. Fourth, with
respect to the length of the thirty-five-day suspension, the
district court observed that the record showed that, since 1977,
the Liquor Board had handed down six, thirty-day suspensions,
and that it added five more days to Andromeda’s second
suspension in order to include the July 4th holiday, because the
Orgains told the Liquor Board that they experienced the biggest
crime problems at Andromeda during holiday periods.
We agree with the district court that no fair-minded jury
could find, based upon this evidence, that race played any role
in the Liquor Board Commissioners’ individual votes to suspend
the Orgains’ liquor license. We also add that, with respect to
the five-day suspension, the Orgains have pointed to no evidence
in the record that the Liquor Board Commissioners had any
knowledge, at the time they issued such suspension, that
Andromeda served a predominantly black clientele on hip-hop
nights. 9 In conclusion, we affirm the district court’s grant of
9
We also note that the Orgains have not proven that
Andromeda was similarly situated to Brew River with respect to
the underage drinking violations for which the Orgains received
the five-day suspension. Such suspension was based upon
Andromeda’s admission of five under-age drinkers, while Brew
River’s fine-only punishment was based upon its admission of
only two under-age drinkers.
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summary judgment in favor of the Liquor Board Commissioners in
their individual capacities, with respect to Count I, alleging
violation of the Equal Protection Clause. 10
VI.
We also affirm the district court’s grant of summary
judgment in favor of the Liquor Board Commissioners, in their
official capacities, with respect to Count I, alleging violation
of the Equal Protection Clause. Treating the Liquor Board
Commissioners in their official capacities as the Liquor Board,
see Edwards, 178 F.3d at 244 & 244 n.8, the Orgains’ Equal
Protection claim against the Liquor Board fails. The record
contains no evidence that in either decision by the Liquor Board
to suspend the Orgains’ liquor license, the Liquor Board
Commissioners were acting pursuant to a policy or custom of the
Liquor Board to discriminate against businesses serving
predominantly black clientele. See Board of County Comm’rs of
Bryan County, Okla. v. Brown, 520 U.S. 397, 403-04 (1997)
10
To the extent Plaintiffs have made arguments on this
issue that we have not specifically addressed, we find such
arguments without merit.
We note that although the Liquor Board Commissioners, in
their individual capacities, raised the defense of qualified
immunity with respect to Count I, the district court, having
found no violation of the Equal Protection Clause, did not reach
the merits of such qualified immunity defense. Neither do we.
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(county may be held liable under § 1983 only if it causes a
deprivation of a constitutional right through a policy or
custom).
VII.
Plaintiffs also challenge the district court’s grant of
summary judgment in favor of Chief Webster, in his individual
capacity, and the City, with respect to Count III, alleging
intentional interference with their rights to contract with
black customers and black disc jockeys, brought pursuant to 42
U.S.C. § 1981. Plaintiffs’ challenge is without merit.
Section 1981 guarantees that “[a]ll persons within the
jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts . . . as
is enjoyed by white citizens . . . .” 42 U.S.C. § 1981. In the
words of Justice Scalia for the Supreme Court: “Section 1981
offers relief when racial discrimination blocks the creation of
a contractual relationship, as well as when racial
discrimination impairs an existing contractual relationship, so
long as the plaintiff has or would have rights under the
existing or proposed contractual relationship.” Domino’s Pizza,
Inc. v. McDonald, 546 U.S. 470, 476 (2006).
Plaintiffs contend the district court erred in failing to
analyze their § 1981 claim under the burden-shifting proof
- 35 -
scheme first set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), for employment discrimination claims.
According to Plaintiffs, they can avail themselves of the
McDonnell Douglas proof scheme in the § 1981 context, because
they lack direct evidence of racial animus. See Love-Lane v.
Martin, 355 F.3d 766, 786 (4th Cir. 2004) (plaintiff alleging
race discrimination in violation of § 1981, based only upon
circumstantial evidence, may seek to prove claim under McDonnell
Douglas).
This issue need not detain us long. Plaintiffs seek to
impose § 1981 liability on Chief Webster, in his individual
capacity, based upon their theory that he interfered with their
rights to contract with black customers and black disc jockeys,
but did not do so with respect to Brew River, because Andromeda
served a predominantly black clientele on hip-hop nights.
Plaintiffs implicitly acknowledge that, in order to establish a
prima facie case, under McDonnell Douglas, at the summary
judgment stage, they must proffer sufficient evidence for a
reasonable jury to find, inter alia, that Chief Webster treated
them differently than a similarly situated club. Cf. Love-Lane,
335 F.3d at 802. Plaintiffs rely upon the same evidence in
support of this element as they did in support of the similarly
situated element of their Equal Protection claim against Chief
Webster, in his individual capacity. Needless to say, the
- 36 -
record does not support a reasonable inference that Andromeda,
on hip-hop nights, was similarly situated to Brew River on any
night of the week. Accordingly, we affirm the district court’s
grant of summary judgment in favor of Chief Webster, in his
individual capacity, with respect to Count III. Because
Plaintiffs do not attempt to impose § 1981 liability upon the
City upon any different evidence than it relied upon in support
of its § 1981 claim against Chief Webster, in his individual
capacity, we do the same with respect to the City. 11
VIII.
As their final issue, Plaintiffs contend the district court
erred in failing to address the Liquor Board’s assertion of
Eleventh Amendment immunity below. This issue is a nonstarter
for Plaintiffs. In light of the fact that the Liquor Board
(i.e., the Liquor Board Commissioners sued in their official
capacities) does not request affirmance on the basis of Eleventh
Amendment immunity, if it is not necessary to do so, we too
refuse to reach the merits of such Eleventh Amendment immunity
defense. See Strawser v. Atkins, 290 F.3d 720, 729 (4th Cir.
11
To the extent Plaintiffs have made arguments in support
of their § 1981 claims against Chief Webster, in his individual
capacity, and the City, that we have not specifically addressed,
we find such arguments without merit.
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2002) (refusing to reach merits of Eleventh Amendment Immunity
defense when defendant-officials only argued merits of the case
and relied upon Eleventh Amendment Immunity defense only if
necessary to prevent judgment against them on the merits).
IX.
In conclusion, we affirm the entry of judgment with respect
to Counts I and III.
AFFIRMED
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