The opinion of the court was delivered by: Hon. John Corbett O'Meara
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the court is Defendants' motion for summary judgment, filed February 12, 2010. Plaintiffs filed a response April 23, 2010; Defendants submitted a reply April 26, 2010. Defendants also filed a motion to strike Plaintiffs' untimely response brief. The court heard oral argument on April 29, 2010, and took the matter under advisement. For the reasons stated below, Defendants' motion for summary judgment is granted.
Plaintiffs are employees of John's Hotspot, a strip club in Van Buren Township. Plaintiffs allege that the township and Officers Joseph Smith and Christopher Herrick violated their constitutional rights during an investigation at the bar. Specifically, Count I of the complaint alleges that Defendants violated Plaintiffs' Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures. Count II alleges that Defendants violated Plaintiffs' First Amendment rights. The parties have significantly narrowed the issues, as Plaintiffs have conceded that their First Amendment and Fourteenth Amendment claims should be dismissed, as well as their claims against Van Buren Township. Plaintiffs have further agreed that Plaintiffs Nicole Hessen, Nicholas Molishas, and Crystal Tayler should be dismissed for failing to prosecute their claims, leaving Patrick Baisch, Leighanna Esposito, Amanda Kahn, Nicole Sander, Kelli Talis, and Roger Thompson. The only issues remaining are whether the individual officers violated these Plaintiffs' Fourth Amendment rights and whether the officers are entitled to qualified immunity.
On January 12, 2009, at about 6:30 p.m., the Van Buren Township police received an anonymous telephone call requesting assistance at John's Hotspot. The caller stated that the bar's manager, Roger Thompson, was intoxicated and was abusing the dancers. The woman caller stated that she was a customer and wanted to remain anonymous. Officers Smith and Herrick responded to the call.
Upon arriving at the bar, the police asked to speak to Roger Thompson. Thompson was visibly intoxicated. The officers asked if he was working. Thompson initially stated that he was the manager but then said that he was not working. He said that he was waiting for a ride home. Thompson admitted that he was drunk and told the officers that he allowed his employees to drink during their shifts. The officers asked Thompson to take a breath test, which he did. The results showed that Thompson had a.20% blood alcohol level. Thompson eventually left the bar when his ride showed up. He was not arrested, although he was later the subject of a complaint to the Michigan Liquor Control Commission, as it is a violation of MLCC regulations to allow an intoxicated person to loiter on the licensed premises, allow an employee to be intoxicated on the premises, to sell alcohol to an intoxicated person, or to allow an intoxicated person to consume alcohol on the premises. See M.C.L. 436.1707.
After administering the breath test to Thompson, the officer decided that the day shift workers at the bar should also be asked to take breath tests, in light of Thompson's statement that he allowed the employees to drink during their shifts. The officers mistakenly believed that it was a violation of MLCC rules for employees to drink alcohol while they were working. Further, the officers were concerned that the day shift was ending and that employees would potentially be driving home while intoxicated.
Officers administered breath tests to ten employees in a side room outside the observation of customers. Not all of the employees took the test; no customers were asked to take one. The employees who took the test testified that they cooperated with the officers and took it voluntarily. No one was prevented from leaving the bar. After the breath tests were administered and the officers completed their investigation, they left the bar. They were at the bar for about an hour. No arrests were made; no tickets or criminal charges were issued. The business of the bar apparently continued uninterrupted during the officers' investigation.
I. Summary Judgment Standard
Summary judgment is appropriate if "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When reviewing a motion for summary judgment, the facts and any reasonable inferences drawn from the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The issue of whether a police officer is entitled to qualified immunity is a question of law for the court. See, e.g., Summers v. Leis, 368 F.3d 881, 885 (6th Cir. 2004).
II. Fourth Amendment/Qualified Immunity
Defendants contend that they did not violate Plaintiffs' Fourth Amendment rights and that they are entitled to qualified immunity. These issues overlap: "In civil damage actions arising out of governmental officials' performance of discretionary functions, the officials are generally entitled to qualified immunity from suit 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Greene v. Barber, 310 F.3d 889, 894 (6th Cir. 2002) (citation omitted). In determining whether Defendants are entitled to qualified immunity, the initial inquiry is as follows: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001). "[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established.... The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 201-202.
The United States Supreme Court has recently held that lower courts are not required to take this two-step qualified immunity inquiry in the order specified by Saucier, but that a flexible approach is appropriate. See Pearson v. Callahan, 129 S.Ct. 808, 818 (2009) ("The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand."). The Court further noted: "The protection of qualified immunity applies regardless of whether the ...