Grider v. City Of Auburn

• Decision Date: 07 September 2010
• Docket Number: No. 09-13261.,09-13261.
• Parties: Patrick James GRIDER, Daniel Joseph Grider, The Fourth Quarter, Inc., an Alabama Corporation d.b.a. The Skybar, Plaintiffs-Appellees,The Grid, Inc., an Alabama Corporation f.k.a. The Highlands, d.b.a. Pulse, et al., Plaintiffs,v.CITY OF AUBURN, ALABAMA, an Alabama Municipal Corporation, et al., Defendants,James Trey Neal, III, Jason Crook, Christopher Carver, Slone Maddox, Andrew Meeks, in their individual capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

618 F.3d 1240

Patrick James GRIDER, Daniel Joseph Grider, The Fourth Quarter, Inc., an Alabama Corporation d.b.a. The Skybar, Plaintiffs-Appellees,The Grid, Inc., an Alabama Corporation f.k.a. The Highlands, d.b.a. Pulse, et al., Plaintiffs,v.CITY OF AUBURN, ALABAMA, an Alabama Municipal Corporation, et al., Defendants,James Trey Neal, III, Jason Crook, Christopher Carver, Slone Maddox, Andrew Meeks, in their individual capacities, Defendants-Appellants.

No. 09-13261.

United States Court of Appeals, Eleventh Circuit.

Sept. 7, 2010.

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Elizabeth Brannen Carter, Randall C. Morgan, Hill, Hill, Carter, Franco, Cole & Black, Montgomery, AL, for Defendants-Appellants.

Davis B. Whittelsey, Robert G. Poole, Jonathan K. Corley, William David Dawson, Whittelsey, Whaley & Poole, P.C., Opelika, AL, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before BLACK, HULL and KRAVITCH, Circuit Judges.

HULL, Circuit Judge:

Plaintiffs own a bar/restaurant in Auburn, Alabama and sued the City of Auburn (the “City”) and City employees under state tort law and 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments. Plaintiffs primarily claim the City and its agents filed false bribery charges and selectively enforced regulatory laws in order to harm the Plaintiffs' business. Defendants moved for summary judgment based on qualified immunity from the § 1983 claims and state-law immunity from the state-law claims, which the district court denied. Upon review, we affirm in part, reverse in part, and remand.

I. BACKGROUND

We review the facts in the light most favorable to Plaintiffs.¹

Plaintiff-Appellees Patrick Grider (“Grider”) and his brother Daniel Grider (collectively, the “Griders”) own and operate bar and restaurant businesses in Auburn, Alabama, including The Fourth Quarter, Inc., which is also a Plaintiff-Appellee. The Fourth Quarter owns and operates The Skybar Café (“Skybar”), the bar/restaurant at issue.²

In 1996, the Griders leased the premises at 122 West Magnolia Avenue in the City. The Griders operated several successive establishments at that location, culminating in Skybar, which opened on August 19, 2005. Since 2001, bars owned by the Griders, including Skybar, have been the subject of private complaints, and warnings by the City of Auburn Police Department (“APD”), for underage drinking, fighting, and patrons consuming alcoholic beverages after 2:00 a.m. on Sunday mornings.

In 2007, Plaintiffs filed suit against the City and ten City employees alleging the City was enforcing its laws in a discriminatory manner to try to harass them and put them out of business. Plaintiffs allege that the City and its employees placed their businesses under surveillance, improperly calculated low occupancy numbers pursuant to building safety codes, issued improper criminal citations and charges, and passed legislation concerning alcohol sales targeted at Plaintiffs.

This appeal involves only certain claims against these Defendants-Appellants: Andrew Meeks, the City's Deputy Director for Administration and Codes, and Officers James Terry Neal III, Jason Crook, Christopher Carver, and Slone Maddox, all City policemen. Each Defendant is sued in his individual capacity. ³ Plaintiffs' claims on appeal primarily concern two sets of events during 2005-2006: (1) law enforcement surveillance on September 29, 2005, culminating in a bribery charge against Plaintiff Grider; and (2) Defendant Meeks's calculations of Skybar's occupancy limit in 2005-2006, culminating in an occupancy limit of 999 persons. We describe each set of events in turn.

A. Surveillance and Bribery Charge

Defendants Sergeant Maddox and Officer Neal went to the City Prosecutor and asked how they could curtail the citizens' complaints about Skybar for underage alcohol consumption and alcohol consumption after 2:00 a.m. on Sunday mornings. APD Lieutenant Howell authorized surveillance at Skybar to monitor potential illegal behavior. Sergeant Maddox directed Officer Neal to begin surveillance. Neal set up video surveillance across the street from Skybar in a building that was part of the Auburn University campus. The surveillance video thus covered only the front of Skybar and not its rear.

At the time of the surveillance on September 29, 2005, Defendants Corporal Crook and Officer Carver were on a foot patrol downtown. On the early morning of September 29, Corporal Crook and Officer Carver received a radio call from Officer Neal informing them that Sergeant Maddox wanted Crook and Carver to go to the back room of Skybar and see whether anyone was “drinking” alcohol and report back to Maddox. At approximately 3:00 a.m., Officers Crook and Carver made their way around the back of the Skybar building and observed patrons with cups in their hands inside the bar. The officers entered an alleyway behind Skybar, opened the rear fire door of the bar, and observed several patrons inside holding clear plastic cups containing what appeared to be alcohol and others drinking from beer bottles.

Around this time, Plaintiff Grider, who was in Skybar, learned that APD Officers Crook and Carver were at the back door of the building. Grider exited the front of the building on West Magnolia Avenue, walked to Wright Street which ran along the side of the Skybar building, and walked around to the back of Skybar. Grider approached the officers and asked if everything “was okay.” The officers responded that they were “checking things out.” Grider informed the officers that Dale Earnhardt, Jr., was inside the bar.⁴

The parties' recollections diverge sharply at this point. While the three men were at the back of the Skybar building, Officers Crook and Carver state that after Grider told them about Mr. Earnhardt's presence, he told them that he knew people still were at the bar but would appreciate it if Crook and Carver would overlook “the violation.” Officer Carver states he told Grider that he could not overlook “the fact that the Sky Bar was serving alcohol after 2:00 a.m. on a Sunday.” ⁵ Crook and Carver state that Grider at this point offered them money if they would agree to overlook “the violation.” Officer Carver told Grider that he was about to do something “very stupid.” According to Crook and Carver, Grider continued to ask them to overlook the violation, stated that he would have everyone out of Skybar in ten minutes, and then offered them cash in exchange for their cooperation.

Grider allegedly left three $50 bills on the alleyway's sidewalk at the rear of the bar and then walked via Wright Street around the bar and back into its front door on West Magnolia Avenue.⁶ Officer Neal, who was surveilling the front of Skybar from across the street, stated in a Special Report that he observed Patrick Grider exit the front door of the bar, walk via Wright Street around to the back of the bar, and return via Wright Street a “few minutes later.” Video surveillance taken from Officer Neal's vantage point shows Grider walking out of the front of the building at 3:15 a.m. and going around towards the back of the bar. The bribery is alleged to have taken place at 3:20 a.m.⁷

Grider denies these events. Grider agrees he informed the officers that Mr. Earnhardt was in the bar. However, Grider categorically denies attempting to bribe the officers, offering them money, leaving money on the ground, asking them not to enforce any laws, or in any way interfering with the officers' activities or duties. Grider states that neither he nor his brother Daniel Grider has ever sold alcohol after the time allowed by law. Grider admitted that he did not know at the time that Skybar was under video surveillance by Officers Neal and Maddox.

Defendant Sergeant Maddox was not at the Skybar scene during the surveillance operation or the alleged bribery. Officer Carver notified Maddox of the alleged incident soon after it occurred, and Maddox informed Carver to collect the money, complete an incident report, and enter the money into evidence.⁸ Officer Crook later filled out a Special Report about Grider's actions. At the time of the alleged bribery, Officer Neal was continuing the surveillance operation at the front of Skybar and consequently was not present with Carver and Crook at the rear of Skybar. Neal was informed of the alleged bribery after it occurred.

Shortly after Grider re-entered Skybar after speaking with Officers Crook and Carver, Officer Neal entered Skybar and told Grider, “We got you,” and “I told you that we would get your license.” When Grider asked what that meant, Neal stated, “You will find out.”

The next day, September 30, 2005, Officer Carver signed an affidavit charging Grider with “Bribery of a Public Servant,” in violation of Alabama Code § 13A-10-61, and a warrant was issued for Grider's arrest. Carver's affidavit stated Grider attempted to bribe Officers Carver and Crook so that they would overlook a violation of Auburn City Ordinance § 3-1(11), which prohibits alcohol sales after 2:00 a.m.⁹

On the same day, the APD contacted Grider and requested that he come to the police station. Grider arrived and stated his concern that Officer Neal was showing up at Skybar a disproportionate amount compared to other bars. Grider was arrested and charged with bribery.

After his arrest, Grider signed a written statement, prepared by an APD detective. Grider's statement explained that at around 3:00-3:30 a.m. on September 29, 2005, he spoke with an APD officer behind Skybar, explaining to him that a total of about 10 people were in the Skybar, including Mr. Earnhardt, that “nothing illegal was going on in there,” that the officers could enter the bar, but that he preferred they not go in because Mr. Earnhardt and those with him likely would leave. Grider's statement says, “I did not give anybody any...