848 F.2d 440 (4th Cir. 1988), 86-3628, Turner v. Dammon

Docket Nº:86-3628.
Citation:848 F.2d 440
Party Name:Mary Rose TURNER, individually and t/a Rosie's Place II; John F. Turner, individually and t/a Rosie's Place II, Plaintiffs-Appellees, v. Charles DAMMON, Detective Sergeant, Walter Currence, Corporal; Joseph J. Casper, Trooper; Harry Edwards, Trooper; Jan Roth, Corporal, Defendants-Appellants. and William Bell, Deputy Sheriff; James Goldsmith, Deput
Case Date:May 03, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 440

848 F.2d 440 (4th Cir. 1988)

Mary Rose TURNER, individually and t/a Rosie's Place II;

John F. Turner, individually and t/a Rosie's Place

II, Plaintiffs-Appellees,


Charles DAMMON, Detective Sergeant, Walter Currence,

Corporal; Joseph J. Casper, Trooper; Harry

Edwards, Trooper; Jan Roth, Corporal,



William Bell, Deputy Sheriff; James Goldsmith, Deputy

Sheriff, Defendants.

No. 86-3628.

United States Court of Appeals, Fourth Circuit

May 3, 1988

Argued March 5, 1987.

Page 441

James Joseph Doyle, III, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Md., on brief), for defendants-appellants.

Lee Saltzberg (Paul R. Kramer, Baltimore, Md., on brief), for plaintiffs-appellees.

Before WINTER, Chief Judge, WILKINSON, Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

WILKINSON, Circuit Judge:

Charles Dammon, Harry Edwards, Jan Roth, Walter Currence, and Joseph Casper, members of the Maryland State Police, appeal the denial of their summary judgment claim of qualified immunity from a suit brought against them under 42 U.S.C. Sec. 1983 by Rose and John Turner, the owners of a bar known as "Rosie's Place II." We affirm the denial of qualified immunity as to Dammon and Edwards because the record raises a triable issue as to whether their conduct in performing a series of administrative searches at Rosie's violated clearly established Fourth Amendment standards of which a reasonable person would have known. The record makes clear that Roth, Currence, and Casper were far less involved in the alleged unconstitutional conduct, however, and we hold that they are entitled to summary judgment based on qualified immunity.


Rosie's Place II is a topless bar in St. Mary's County, Maryland. The record shows that between late 1982 and the filing of the Turners' action in January 1985, the defendants and other officers of the Maryland

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State Police and St. Mary's County Sheriff's Department conducted numerous searches of Rosie's Place and the Turners' residence. The Turners specified several of the officers' actions as the basis of their suit. 1 On November 5, 1982, a number of officers, including Dammon, Edwards, Casper, and Currence arrested several dancers and waitresses at Rosie's Place for violations of the Maryland "Female Sitters" statute, Md.Ann.Code art. 27, Sec. 152 (1983). The statute forbids employment of female "sitters" to solicit drink orders from patrons of a bar or other establishment. Rose Turner's conviction under the statute was overturned on the ground that the statute violated the Maryland equal rights amendment, Turner v. State, 299 Md. 565, 474 A.2d 1297 (1984), and the charges against the other arrestees were dropped.

On November 19, 1982, Dammon, Edwards, Currence, and Roth, acting under a valid search warrant, entered the Turners' home in Lexington Park, Maryland. The officers seized books, records, and papers from the Turner residence as part of their investigation of the alleged Female Sitters violations.

On May 31, 1983, Dammon and Casper entered Rosie's Place to conduct a "bar check" under Md.Ann.Code art. 2B, Sec. 190, which provides for warrantless searches of "any building, vehicle and premises in which any alcoholic beverages are authorized to be kept, transported, manufactured or sold." The plaintiffs allege that the officers searched through books and records, storage areas, and examined items in all parts of the premises.

Aside from these specific searches, plaintiffs allege that between late 1981 and early 1985, Dammon, Edwards, and other officers, either unnamed or not parties to the suit, entered Rosie's at least one hundred times to conduct bar checks under Md.Ann.Code art. 2B, Sec. 190. These checks are alleged to have occurred during the busiest hours at the bar, and to have caused patrons to leave the bar. Plaintiffs also allege that officers of the Maryland State Police and St. Mary's County Sheriff's Department took up positions outside Rosie's Place to discourage patrons from entering. None of the defendants is specifically named in this allegation, however.

The defendants filed affidavits detailing their involvement in these events. Dammon and Edwards acknowledge that they participated in a large number of bar checks at Rosie's, and the record indicates that at least one hundred searches were conducted during the relevant period. Dammon has admitted that more checks were conducted at Rosie's than at any other bar, and that the checks never produced any citations or arrests. In support of these actions he has made only the statement, unsubstantiated by any records or statistics, that a disproportionate number of calls for police service came from Rosie's.

After the Turners filed their suit, the defendants moved for summary judgment on the basis of qualified immunity. The trial court granted summary judgment with respect to each of the individual acts alleged as the basis for the plaintiffs' claim. The court found the Female Sitters arrests supported by probable cause and made under a statute which, although later held unconstitutional, was presumably valid at the time of the arrests. The court held that the search of the Turner home was conducted pursuant to a valid warrant, and that none of the individual bar checks in themselves violated established constitutional rights. The court, however, denied the defendants' motion with respect to the totality of the officers' acts, which it characterized as a "pattern of harassment." The court held that the record raised a triable issue as to whether improper motives on the part of the defendants rendered the series of bar checks a violation of the plaintiffs' clearly established property right to "engage in any of the common occupations of life," Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701,

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2707, 33 L.Ed.2d 548 (1972). From this ruling, the defendants appeal.


Although an interlocutory order, the denial of a motion for summary judgment based on a claim of qualified immunity is an appealable "final decision" under 28 U.S.C. Sec. 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). The public official's qualified immunity is an "entitlement not to stand trial or face the other burdens of litigation" in certain circumstances. Id. at 526, 105 S.Ct. at 2816. Unlike a defense to liability, qualified immunity is "effectively lost if a case is erroneously permitted to go to trial." Id. The immunity is intended to allow public officials to act "with independence and without fear of consequences" where their actions do not implicate clearly established rights. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982). This purpose cannot be achieved if officials face the possibility that they will have to stand trial without any opportunity for review of denials of their summary judgment claims of qualified immunity.

In reviewing the denial of a summary judgment motion based on qualified immunity, we look to the standard of immunity set forth in Harlow. Under Harlow, the summary judgment standard is one of the "objective reasonableness" of official conduct. Id. at 818, 102 S.Ct. at 2738. Officials "generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known." Id. Of course, if the plaintiff fails to allege "a violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2816. Where the acts alleged by the plaintiff do constitute a violation of clearly established rights, a defendant is entitled to summary judgment if the record does not create a genuine issue as to whether the defendant in fact committed those acts. Id. Employing the standard of Fed.R.Civ.P. 56, we must determine, reading the pretrial record in the light most favorable to the plaintiffs, if an issue of triable fact exists as to whether defendants' conduct violated the plaintiffs' clearly established rights. We thus review the defendant's summary judgment motion under the "same standard as did the trial court." White v. Pierce County, 797 F.2d 812, 814 (9th Cir.1986).

Following Mitchell, the circuits have taken different views on the proper scope of review of denials of qualified immunity. The First Circuit has held that reviewing courts should look only to the allegations in the plaintiff's complaint, and determine whether those allegations describe a violation of clearly established law. Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986). 2 Under this view, even where a well-developed pretrial record reveals undisputed facts, the reviewing court is to ignore the record and confine itself to the allegations in the complaint. See Bonitz, 804 F.2d at 167.

We reject this approach, because it eviscerates the purposes of qualified immunity that prompted the court in Mitchell to allow these appeals. The purposes of qualified immunity are well stated in Harlow: "[w]here an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken 'with independence and without fear of consequences.' " Harlow, 457 U.S. at 819, 102 S.Ct. at 2739 (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d

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288 (1967)). Qualified immunity thus protects government officials not only from liability, but from trial, in recognition of the fact that subjecting officials unnecessarily to trial leads to "distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service." Id. at...

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