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ABCDE Operating, LLC v. City of Detroit

United States District Court, E.D. Michigan, Southern Division

May 25, 2017

CITY OF DETROIT, et al., Defendants.


          Nancy G. Edmunds United States District Judge.

         Plaintiff ABCDE Operating, LLC, doing business as the Penthouse Club, commenced this suit in this Court on August 15, 2014, alleging that the Defendant City of Detroit and a number of individual Defendant officers in the Detroit Police Department (“DPD”) violated Plaintiff's rights under the First and Fourth Amendments to the U.S. Constitution by conducting warrantless and suspicionless raids of Plaintiff's adult entertainment club in retaliation against Plaintiff's exercise of its First Amendment rights.[1] Specifically, Plaintiff alleges that the first of these challenged raids occurred in January of 2014, shortly after Plaintiff wrote to the Detroit Chief of Police complaining of increased police investigations of adult entertainment facilities, and that DPD officers conducted a number of additional raids after Plaintiff brought this suit and began actively pursuing discovery in support of its claims. In Plaintiff's view, the Defendant City and officers conducted these raids in retaliation against Plaintiff's exercise of its constitutionally protected rights to free speech and to seek redress from the courts, and the manner in which these raids were carried out violated the constitutional guarantee against unreasonable searches and seizures.

         Four dispositive motions presently are pending before the Court. First, the Defendant City and its officers seek the dismissal of Plaintiff's claims or, alternatively, an award of summary judgment in their favor as to each of these claims, [2] arguing primarily (i) that the Defendant officers were entitled to enter the public areas of Plaintiff's club without a warrant, (ii) that the officers did not exceed the scope of their lawful authority while on Plaintiff's premises as they carried out administrative inspections and engaged in other legitimate law enforcement activities, (iii) that to the extent any Defendant officers might have violated any constitutional principles, these officers nonetheless would be entitled to qualified immunity from liability, and (iv) that Plaintiff cannot show that any constitutional violations are attributable to a municipal custom or policy, as necessary to hold the Defendant City liable for these alleged violations.[3] For its part, Plaintiff has filed two motions for partial summary judgment, contending (i) that its constitutional rights were violated by virtue of a City of Detroit custom authorizing warrantless, suspicionless enforcement actions against adult entertainment venues located in the City, and (ii) that three particular Defendant police officers who led and participated in the warrantless raids of Plaintiff's club engaged in unlawful activities that violated Plaintiff's constitutional rights as a matter of law. Finally, Plaintiff contends in a more recent motion that under principles of issue preclusion, a state court ruling in a criminal proceeding brought against one of Plaintiff's employees prevents the Defendant City and three of the Defendant officers from relitigating the lawfulness of the December 2015 raid of Plaintiff's club.

         On April 19, 2017, the Court heard oral argument on the parties' motions.[4] For the reasons stated more fully below, the Court GRANTS Defendants' motion for summary judgment, and DENIES each of Plaintiff's three motions for partial summary judgment.

         I. FACTS

         A. The Parties

         Plaintiff ABCDE Operating, LLC operates the Penthouse Club, an adult cabaret located on Eight Mile Road in Detroit. According to the complaint, the Penthouse Club “offer[s] adult entertainment including erotic dance to consenting adult[]” patrons. (Fourth Amended Complaint at ¶ 3.)

         Plaintiff's club is subject to a number of municipal regulations governing sexually-oriented businesses, (see Defendants' Motion, Ex. 34, Detroit City Code Article XV), including such requirements as (i) securing a “valid sexually-oriented business license, ” (id. at § 5-15-21(a)), (ii) ensuring that each employee obtains a “valid sexually-oriented business employee license” and keeps this license on the premises while the employee is “working, performing or entertaining, ” (id. at §§ 5-15-41(a), 5-15-42(e)), (iii) limiting semi-nude dancers to performing on a “non-portable fixed stage, on which no patrons are permitted, that is at least eighteen (18) inches from the floor in a room of at least six hundred (600) square feet configured and maintained in such a manner that there is an unobstructed view of every area of the room, ” (id. at § 5-15-7(a)(3)), (iv) prohibitions against intentional contact between semi-nude performers and patrons, (id. at § 5-15-7(a)(4)), and (v) prohibitions against allowing the business “to become a place for criminal activity” or allowing “the possession, sale, or use of controlled substances or drug paraphernalia on the premises, ” (id. at §§ 5-15-7(a)(6), 5-15-7(a)(14)).[5] In addition, because Plaintiff's club serves alcohol, it must comply with liquor laws and regulations enacted by the State of Michigan, including statutory provisions mandating that the club (i) obtain a liquor license, see Mich. Comp. Laws § 436.1501 et seq., (ii) secure a topless activity permit, see Mich. Comp. Laws § 436.1916, and (iii) make its premises available for “inspection and search” by an investigator from the Michigan Liquor Control Commission (“MLCC”) or a law enforcement officer authorized to enforce the MLCC's regulations, Mich. Comp. Laws § 436.1217(2).

         The Defendant City of Detroit is a municipal corporation located in Wayne County, Michigan. Each of the 23 individual defendants is or was employed by the Detroit Police Department (“DPD”) as a law enforcement officer, and at all pertinent times, James Craig has served as Detroit's Chief of Police.[6] Shortly after he was appointed to this position in July of 2013, Chief Craig reinstituted the DPD's Vice Enforcement Unit (“VEU”), which is charged with inspecting and investigating suspected illegal activity at a variety of Detroit commercial establishments, including sexually-oriented businesses, bars, liquor stores, and gas stations. (See Defendants' Motion, Ex. 13, Craig Dep. at 6-7.)[7] Of the 23 individual DPD officers named as defendants in Plaintiff's Fourth Amended Complaint, 16 were either members of the VEU or exercised supervisory authority over VEU officers during the time period of relevance here. The remaining seven individual defendants were members of the DPD's narcotics unit during the relevant time period.

         B. The January 18, 2014 Warrantless Entry into Plaintiff's Club

         Within a short time after the DPD reinstated the VEU, this unit began conducting enforcement actions at a number of Detroit strip clubs. Plaintiff's club was not among the establishments targeted in these initial VEU operations. Nonetheless, on December 5, 2013, an attorney representing the Plaintiff club and other Detroit-based sexually-oriented businesses wrote a letter to Chief Craig expressing his clients' “substantial concern” about the increasing frequency of DPD investigations of adult cabarets and the conduct of the officers conducting these investigations. (See Dkt. 53, Plaintiff's Motion for Partial Summary Judgment, Ex. 10, 12/5/2013 Letter to Chief Craig.)

         A few weeks later, on January 18, 2014, the VEU carried out a warrantless enforcement action at Plaintiff's club. (See Defendants' Motion, Ex. 8, 1/18/2014 Activity Log and Reports.) DPD officers had received reports of illegal drug transactions at the club, and members of the VEU, along with officers from the DPD's narcotics unit, were dispatched to the club to investigate this alleged activity. (See Defendants' Motion, Ex. 15, Greer-Travis 7/26/2016 Dep. at 55-56, 58; Ex. 20, Adams Dep. at 28, 30.) Two DPD officers, Defendant Jason Adams of the VEU and Officer Matthew Bray of the narcotics unit, entered Plaintiff's club in an undercover capacity at approximately 11:40 p.m., [8] and took seats at the bar in order to watch for illegal drug transactions and attempt to purchase narcotics. (See Adams Dep. at 20, 28, 36; Greer-Travis 7/26/2016 Dep. at 30, 48.) Officer Adams testified that he was in the club for a half hour or less when he signaled for the other members of the enforcement team to enter. (See Adams Dep. at 21.)

         The record evidences a degree of confusion as to the basis for the other officers on the enforcement team to enter Plaintiff's club. Officer Adams testified that while he was seated at the bar, a female employee of the club approached him and solicited him for “an act of prostitution, ” and that he then sent a text message to Sergeant Stacy Greer-Travis, a supervisory officer in the VEU, calling for the other officers to enter the club. (Id. at 21-22, 48-49.) Sergeant Greer-Travis testified, in contrast, that the enforcement team entered the club upon receiving a communication from one of the undercover officers indicating that he had made a successful purchase of cocaine. (See Greer-Travis 7/26/2016 Dep. at 35, 37, 97-98.) After the team entered the club, however, Sergeant Greer-Travis learned that this belief was mistaken, and that neither of the undercover officers had succeeded in purchasing narcotics. (See Id. at 37, 98.) Nonetheless, the VEU and narcotics officers remained on the premises and carried out a number of law enforcement activities.

         The parties offer divergent accounts as to the nature and extent of these activities. According to Defendants, because the narcotics officers entered Plaintiff's club with the understanding that a drug transaction had taken place, they viewed the operation as a “raid” and secured the premises for approximately 10 to 20 minutes until they located the undercover narcotics officer, Officer Bray, and confirmed that he was safe. (See Defendants' Motion, Ex. 28, Geelhood Dep. at 25, 50-51, 54.) The supervisor of the narcotics unit, Sergeant Stephen Geelhood, testified that he “wasn't going to let anybody leave [the club] until” Officer Bray was found and his safety was ensured, but that once this objective was achieved, he was told by Sergeant Greer-Travis that the club patrons were free to leave. (Id. at 66-67.) Sergeant Geelhood did not believe that anyone in the club could be described as “detained . . . for any amount of time at all” during this process, nor was he aware that any member of the narcotics unit searched any persons or areas of the club for illegal drugs; rather, the narcotics officers merely “wait[ed] for the vice [unit] to be finished” with its activities. (Id. at 49-50.)

         As the narcotics officers secured the premises, the VEU officers engaged in a variety of other activities upon entering the club.[9] The female employee who allegedly solicited Officer Adams was taken into custody and given a ticket for solicitation of prostitution. (See Adams Dep. at 49; Greer-Travis 7/26/2016 Dep. at 64-66.) One member of the VEU, Officer Starr Gonzales, proceeded upstairs to the women's dressing room and began asking the club's dancers to produce their dance cards for inspection. (See Defendants' Motion, Ex. 22, Gonzales 7/29/2015 Dep. at 41-42, 51.) Another officer who accompanied Officer Gonzales, Officer Amy Matelic of the narcotics unit, ran the names of the dancers through the Law Enforcement Information Network (“LEIN”) system; Officer Gonzales testified that this was done to “make sure [the dancers] d[id]n't have any outstanding warrants, ” (Gonzales 7/29/2015 Dep. at 51), but Officer Matelic explained that she used the LEIN system to “make sure that [the dancers] were who they said they were” and to match each dancer with the name on a dance card or piece of identification, (Defendants' Motion, Ex. 29, Matelic Dep. at 26, 36-38).[10] Officer Gonzales testified that around 20 dancers were detained during this process, but that the dancers were advised that they were free to leave once their identities and dance cards were verified. (See Gonzales 7/29/2015 Dep. at 55-57.)[11]

         Another member of the vice unit, Officer Brian Herndon, testified that upon entering Plaintiff's club, he approached the bartenders and wait staff and asked them to produce identification and sexually-oriented business licenses. (See Defendants' Motion, Ex. 24, Herndon Dep. at 47-48.) Officer Herndon could not recall observing any criminal activity in the club, nor did he issue any tickets for license violations. (See Id. at 54-55, 57.) Finally, Officer Allen Williams of the vice unit testified that he was assigned to go upstairs to the club's so-called “VIP” rooms, based on information that unlawful drug transactions or sexual activity might be occurring in these private areas of the club. (See Defendants' Motion, Ex. 25, A. Williams Dep. at 34, 46.) Officer Williams stated that he issued a ticket to a club patron who was nude from the waist down, and another ticket to a dancer who was performing topless in a VIP room. (See Id. at 47.)

         The general manager of Plaintiff's club, Edward Muczynski, offers a somewhat different narrative of the actions taken by the DPD officers at the club that night. Muczynski states that he drove to the club shortly after 11:00 p.m. upon learning that the facility “had just been raided, ” but that unidentified DPD officers prevented him from pulling into the club's main parking lot or walking in the front door. (Dkt. 52, Plaintiff's Motion for Partial Summary Judgment, Ex. 25, Muczynski Aff. at ¶¶ 6-8.) Upon entering the club through a private rear entrance and proceeding to the front entrance, Muczynski observed several “masked” and “armed” police officers in the first floor seating area, “some with guns pointed at patrons and [the club's] servers and security personnel.” (Id. at ¶¶ 10-11.) Muczynski then advised an unidentified male officer in a uniform bearing a “vice” insignia that he was the general manager, but this officer pushed him to the side of the first floor bar, ordered him to remain standing with his back to the wall, and warned him that he would be arrested and handcuffed if he moved without permission or attempted to use his cell phone. (Id. at ¶¶ 13-16.) Likewise, Muczynski observed that several servers and bartenders also were ordered to stand against the wall away from their workstations, and Muczynski was instructed to tell these workers that “if they moved from the wall they would be handcuffed and taken into custody.” (Id. at ¶¶ 17-19.)

         As Muczynski stood against the wall, he observed “several masked, uniformed and armed individuals in the main sitting area loudly and repeatedly instructing patrons seated in that area to remain in their seats.” (Id. at ¶ 20.) Of the approximately 150 patrons at the club when Muczynski arrived, he witnessed “about fifty patrons” showing identification to the officers, and several of these patrons were frisked during this process. (Id. at ¶ 21.) An unidentified, masked officer then “order[ed] the patrons who had been detained in the main seating area to leave the premises, ” and Muczynski was told to “shut up” when he protested that these patrons “had not been allowed to cash out while the bartenders and servers were also detained.” (Id. at ¶¶ 22-23.) At approximately 12:30 a.m., over an hour after Muczynski arrived at the club, an unidentified masked and armed female officer wearing a uniform with a “vice” insignia allowed the music to be restarted and the club's dancers to resume their performances, and Muczynski estimates that “about 75% of the patrons had been ordered or allowed to leave” by that time. (Id. at ¶¶ 24, 26.)

         As the music and dancing resumed, Muczynski went upstairs to the entertainers' dressing room and observed “about twenty dancers, along with three masked, uniformed and armed female officers.” (Id. at ¶ 27.) Muczynski witnessed two of these officers “questioning the entertainers and ordering them to retrieve their purses from their lockers, ” and he further “observed the officers searching through several purses that entertainers had produced on demand.” (Id. at ¶ 31.) Muczynski then exited the dressing room and “observed a masked, uniformed officer in one of the VIP rooms, who appeared to be searching in and around the furniture in that room, ” and who then proceeded to search a second VIP room using a flashlight. (Id. at ¶¶ 32, 35.) Upon returning to the dressing room shortly before 1:00 a.m., Muczynski found that “fifteen to twenty dancers remained in the dressing room with one masked female officer, ” and soon thereafter, an officer announced to the dancers in the room that “you should all leave now.” (Id. at ¶¶ 34, 36.) When Muczynski “asked the dancers not to leave before completing an incident report, ” an unidentified female officer told him to “shut up, ” and she directed the dancers to “leave or get tickets, too.” (Id. at ¶¶ 36-37.)

         According to Muczynski, the masked DPD officers did not leave the club until around 2:00 a.m. (Id. at ¶ 39.) Thus, Muczynski estimates that the club “was prevented from conducting its normal business” for roughly three hours, between 11:00 p.m. and 2:00 a.m. (Id. at ¶ 40.) He further opines that patrons were prevented from leaving the club for about 20 minutes after he arrived, by virtue of the presence of a “large, masked individual holding a handgun” who “physically prevented anyone from exiting except other officers.” (Id. at ¶ 42.) In addition, “a substantial majority of the [club's] dancers were not available to perform” for over 90 minutes that night, as they had been “ordered to the entertainers' dressing room and not allowed to leave the room until ordered to leave the premises.” (Id. at ¶ 43.)

         C. The Additional Warrantless Entries into Plaintiff's Club Following the Commencement of This Suit

         On August 15, 2014, Plaintiff and the operators of two other adult cabarets in Detroit brought this suit against Detroit Police Chief James Craig and a number of named and unnamed Detroit police officers.[12] Since that time, the DPD's VEU has carried out at least three additional enforcement actions at Plaintiff's club.[13]

         (i) July 10, 2015

         First, on July 10, 2015 at about 7:30 p.m., approximately eight uniformed DPD officers entered Plaintiff's club without a warrant. According to the night manager, George E. Gibson, the officers immediately proceeded to the second floor of the club, after first instructing an employee to turn off the music. (Dkt. 65, Plaintiffs' Response, Ex. E, Gibson Aff. at ¶¶ 6-7.) The officers summoned Gibson to the entertainers' dressing room, and also ordered all of the dancers to gather in the dressing room. (Id. at ¶¶ 8-9.) According to Gibson, approximately 25 dancers were in the dressing room when he arrived, and he also observed Sergeant Roderick Tucker, Officer Allen Williams, and an unknown female DPD officer in the room. (Id. at ¶ 10.) Gibson was asked to provide sexually-oriented business employee licenses for each of the dancers, and he states that the process of verifying these licenses “took approximately five minutes to complete.” (Id. at ¶ 11.) Nonetheless, Gibson states that the dancers were detained in the dressing room after their licenses had been verified, so that the officers could “investigate whether any of the dancers had warrants out for their arrest.” (Id. at ¶ 12.)

         During this investigation, Sergeant Tucker stated to Gibson that “we are going to shut this place down” and “write a lot of tickets, ” and both Sergeant Tucker and Officer Williams stated that “you should be happy about the tickets, your boss likes going to court.” (Id. at ¶¶ 15, 17.) Gibson also witnessed these two officers “threaten[ing] the dancers with being jailed for working at” Plaintiff's club. (Id. at ¶ 18.) In addition, Gibson observed the unidentified female DPD officer ordering several dancers to retrieve their purses from their lockers and searching through some of these purses. (Id. at ¶ 20.) The female officer also inspected the wraps worn by several of the dancers, and issued citations to some of these dancers for wearing wraps that were not “fully opaque” as mandated under a provision of the Detroit City Code. (Id. at ¶¶ 21-23.)

         Upon leaving the entertainers' dressing room, Gibson saw two uniformed officers inspecting one of the club's VIP rooms. (Id. at ¶ 24.)[14] In all, Gibson estimates that the DPD's activities that evening prevented the club from conducting its normal business for about two hours, from shortly after 7:30 p.m. until around 9:30 p.m. (Id. at ¶ 25.)[15]

         (ii) October 24, 2015

         At around 6:20 p.m. on October 24, 2015, Officers Allen Williams and Jeffrey Banks visited Plaintiff's club, as well as other adult cabarets, to determine whether these establishments were still operating private “VIP” rooms. (See Defendants' Motion, Ex. 11, 10/24/2015 Activity Log and Reports at 3; see also Greer-Travis 7/26/2016 Dep. at 107 09.)[16] A male patron and a female dancer were arrested for gross indecency after being discovered engaging in sexual activity in a VIP room, (see 10/24/2015 Activity Log and Reports at 5-9), but no other tickets were issued that evening. Gibson was at the club that night, and he testified that the DPD officers did not order the music turned off or the lights turned on, nor did they check any dancers' licenses or disrupt any dancers' performances on the club's stages. (See Defendants' Motion, Ex. 31, Gibson Dep. at 49-50.)

         (iii) December 3, 2015

         The final enforcement action addressed in the parties' briefs was conducted on December 3, 2015.[17] On this occasion, as on January 18, 2014, Sergeant Jason Adams of the VEU[18] and another officer initially entered Plaintiff's club in an undercover capacity to investigate complaints of solicitation and sexual activity in the club's VIP rooms. (See Greer-Travis 7/26/2016 Dep. at 112.) At some point between 5:30 and 6:40 p.m., the undercover officers notified other members of the VEU that they had observed patrons and dancers entering the club's VIP rooms and engaging in prohibited conduct, and the remaining VEU officers on the scene then entered the premises. (See Defendants' Motion, Ex. 12, 12/3/2015 Activity Log at 2; Dkt. 52, Plaintiff's Motion for Partial Summary Judgment, Ex. 41, 10/17/2016 Evidentiary Hearing Tr. at 10, 19, 78-79.)[19]

         Sergeant Tucker has testified that upon entering Plaintiff's club, he observed a number of people smoking cigarettes on the premises, and he then sought out an individual he believed to be the manager on duty, Mike Fawaz, and issued him a ticket for allowing smoking in the club. (See 10/17/2016 Evidentiary Hearing Tr. at 13, 15, 19-20.)[20] Another member of the VEU, Officer Donte Jenkins, has testified that when he entered the club that evening, he first checked the bouncers at the door for firearms and generally “made sure everybody was safe, ” and he then issued a citation to Mr. Fawaz for failing to post his picture at the club as the manager on duty. (See Id. at 31, 33, 37.)[21] A third VEU officer, Officer Banks, was assigned to check the VIP rooms, and he has testified that he issued citations to a female dancer and a male patron that he discovered in one of these rooms, as well as to Mr. Fawaz for allowing these violations while he was in charge of the club. (See Id. at 68-69, 71.)[22]

         Once again, the club's general manager, Edward Muczynski, has provided a rather different account of the activities of the DPD officers who entered the club on December 3, 2015. According to Muczynski, two uniformed officers proceeded to the main seating area immediately after they entered the club, and they instructed the club's patrons to “remain in their seats and prepare to produce identification.” (Muczynski Aff. at ¶¶ 46, 48.) At least some of the patrons were instructed to produce identification and asked whether they were carrying guns, and the officers also frisked some of the patrons. (See Id. at ¶¶ 50-51.) At around the same time, the music was stopped and the dancers were instructed to report to the second-floor dressing room. (See Id. at ¶¶ 48-49.)

         About 20 to 30 minutes later, Muczynski was summoned to the dressing room, and on his way upstairs, he observed two uniformed officers rummaging around the furniture in one of the VIP rooms and using flashlights to look around this room. (See Id. at ¶¶ 52-53.) Upon arriving in the dressing room, Muczynski saw more than 20 dancers being questioned by two unidentified female DPD officers, and one dancer who attempted to leave was told to remain “until I tell you you're cleared.” (See Id. at ¶¶ 55-56.) Over the next 30 minutes, Muczynski witnessed the female officers ordering dancers to retrieve their purses from their lockers and inspecting the contents of the purses. (See Id. at ¶ 56.)

         According to Muczynski, the club's patrons were unable to leave for about 30 minutes after the DPD officers entered the premises. (See Id. at ¶ 60.) He states that police officers were in control of the club from roughly 6:00 to 7:30 p.m. and that the club was prevented from conducting its normal business during this 90-minute period, particularly since most of the dancers were kept in the entertainers' dressing room “[f]or more than an hour” and were “not allowed to leave.” (Id. at ¶¶ 58-59, 61.) Muczynski estimates that about 80 patrons were at the club when the police arrived, but that only about 20 patrons remained on the premises by the time the officers left. (See Id. at ¶ 62.)


         Through the present cross-motions, Plaintiff and Defendants seek an award of summary judgment in their favor on some or all of the claims asserted by Plaintiff against the Defendant City of Detroit and the individual Defendant police officers.[23] Under the pertinent Federal Rule governing these cross-motions, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As the Supreme Court has explained, “the plain language of Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails 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, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986).

         To the extent that a party - here, Plaintiff - seeks an award of summary judgment in its favor on an issue or claim as to which that party bears the burden of proof, the moving party's “showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (internal quotation marks, citation, and emphasis omitted). Regardless of the allocation of the burden of proof, the central issue under Rule 56 is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512 (1986).

         In deciding a motion brought under Rule 56, the Court must view the evidence “in a light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). Yet, the nonmoving party may not rely on bare allegations or denials, but instead must support a claim of disputed facts by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). Moreover, any supporting or opposing affidavits “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).[24] Finally, “[a] mere scintilla of evidence is insufficient” to withstand a summary judgment motion; rather, “there must be evidence on which the jury could reasonably find for the non-moving party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and citation omitted).

         III. ANALYSIS

         A. Plaintiff's Fourth Amendment Claims of Unlawful Warrantless Entries and Unreasonable Searches and Seizures.

         The four counts of Plaintiff's fourth amended complaint do not set forth discrete theories of recovery, but instead are distinguished solely by the form of relief they seek:

         Count One seeks declaratory relief, Count Two requests permanent injunctive relief, and Counts Three and Four seek awards of compensatory damages. Thus, as Defendants aptly observe, while Plaintiff complains of “many types of unlawful actions” in which Defendants allegedly engaged, “it is not always clear” which of Plaintiff's constitutionally protected rights were violated as a result of these allegedly unlawful activities. (Defendants' Motion, Br. in Support at 28.) In an effort to overcome this difficulty, Defendants analyze each form of allegedly unlawful conduct in light of the constitutional protection that this conduct seemingly implicates or infringes. The Court will do likewise, beginning with the actions of the Defendant officers that implicate the Fourth Amendment protections against warrantless entries and unreasonable searches and seizures.

         At the outset of its Fourth Amendment analysis, the Court emphasizes the points of law on which the parties agree. First, all are agreed that the Fourth Amendment's protections against warrantless entries and unreasonable searches and seizures apply to commercial establishments such as Plaintiff's club. See Marshall v. Barlow's, Inc., 436 U.S. 307, 311-12, 98 S.Ct. 1816, 1819-20 (1978) (holding that “[t]he Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes, ” and that the presumption “that warrantless searches are generally unreasonable” likewise “applies to commercial premises as well as homes”); See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739 (1967) (“The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.”) The parties further recognize, however, that a “search” within the meaning of the Fourth Amendment occurs only “when an expectation of privacy that society is prepared to consider reasonable is infringed, ” and that a business owner or operator has no such “reasonable expectation of privacy in areas of [a commercial establishment] where the public [i]s invited to enter and to transact business.” Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782 (1985) (internal quotation marks and citations omitted). Thus, “[w]hat is observable by the public is observable, without a warrant, by the Government inspector as well.” Marshall, 436 U.S. at 315, 98 S.Ct. at 1822 (footnote with citation omitted); see also Kyllo v. United States, 533 U.S. 27, 32, 121 S.Ct. 2038, 2042 (2001) (explaining that “visual observation” from a location where the observer is entitled to be “is no ‘search' at all”). With these threshold principles in mind, the Court turns to the specific activities challenged by Plaintiff in this case.

         1. The Entries into Plaintiff's Club ...

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