Russo v. Massullo
| Decision Date | 05 March 1991 |
| Docket Number | No. 90-3241,No. 90-3240,90-3241,90-3240 |
| Citation | 927 F.2d 605 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Antoinette RUSSO (), Mildred Maloney () Plaintiffs-Appellants, v. Carl MASSULLO, et al., Defendants-Appellees. , 90-3241. |
| Court | U.S. Court of Appeals — Sixth Circuit |
On Appeal from the United States District Court for the Northern District of Ohio, 88-00928, 00929, Krenzler, J.
N.D.Ohio
AFFIRMED IN PART, RESERVED IN PART.
Before MILBURN and RALPH B. GUY, Jr., Circuit Judges; and BAILEY BROWN, Senior Circuit Judge.
Plaintiffs-appellants Antoinette Russo and Mildred Maloney appeal from summary judgments for defendants-appellees Beaver Township, Carl Massullo (chief of the Beaver Township Police Department), Scott Pohlman (an investigator with the Ohio Department of Liquor Control), and various members of the Beaver Township Police Department 1 in two separate actions brought under 42 U.S.C. Sec. 1983 alleging violations of constitutional rights (along with pendent state claims) resulting from a raid by the defendants on a liquor establishment for illegal gambling activities. For the reasons that follow, we affirm in part and reverse in part.
On February 16, 1990, the district court granted summary judgment against each plaintiff in favor of all defendants. Separate notices of appeal were timely filed, and the cases, having arisen out of the same incident, were consolidated for appeal.
The facts relevant to this appeal revolve around an armed raid conducted without a warrant on April 16, 1987, at the Stagecoach Restaurant & Lounge ("Stagecoach") located in Beaver Township, Ohio. At approximately 9:30 p.m. defendants Frost and Martin, police officers employed by Beaver Township, entered the premises armed with shotguns and pistols. The purpose of the raid was the "closeout" of an investigation conducted by the Ohio Department of Liquor Control ("ODLC") of gambling in the Stagecoach--a licensed vendor of alcoholic beverages. The closeout consisted essentially of serving notices of noncompliance on the Stagecoach plus seizure of two alleged illegal gambling machines ("video poker machines").
When the officers arrived at the Stagecoach, it was featuring a stage entertainer and was comparatively full of customers. According to deposition testimony of plaintiff Russo, the owner of the Stagecoach, and plaintiff Maloney, an employee who had finished her shift at 6:00 p.m. and was listening to the entertainment, officers Frost and Martin entered the premises, pointed their weapons at the persons inside, and ordered everyone inside the establishment to raise their hands over their heads. Approximately five to eight law enforcement officers followed officers Frost and Martin inside. During the first thirty minutes of the raid, a pat-down search of everyone inside the establishment was conducted, and the customers were generally allowed to leave as soon as they were searched. As the raid continued, plaintiff Russo repeatedly asked whether the officers had brought a search warrant but was told that they did not need one. Also, during this time frame, both Russo's and Maloney's purses were searched, and neither was allowed to go to the restroom without being accompanied as far as the door by a female officer. The entire incident lasted approximately two hours, and before leaving, ODLC investigators served the violation notices and seized the two alleged gambling machines.
Approximately a week after the raid, investigator Scott Pohlman filed criminal complaints against both Russo and Maloney for violations of Ohio's gambling laws. Also, the Ohio Liquor Control Commission instituted proceedings regarding Russo's continued licensure and, in an order dated February 23, 1988, gave Russo the option of paying a forfeiture of $1400 or having her license suspended from March 22, 1988, until April 5, 1988. Both women were arrested and prosecuted, but the criminal charges were dismissed because no "testimony was offered that the machines in question were designed or adapted to generate a profit." "[P]ursuant to the acquittal rendered in Mahoning County Municipal Court," the Liquor Control Commission set aside the suspension and forfeiture and ordered the case involving Russo's license dismissed. J.A. 394.
The investigation of the Stagecoach was begun pursuant to a request by defendant Massullo to the ODLC. Part of Massullo's reason for seeking an outside investigation was an injunction issued in State v. Garono, No. ____ (C.P. Mahoning County April 3, 1985), aff'd in part, Garono v. State, 37 Ohio St.3d 171, 524 N.E.2d 496 (1988), which forbade the state and Beaver Township (), their officers, agents, etc., from seizing machines owned by Garono Vending Co., the company that owned the machines inside the Stagecoach. Pohlman denied any knowledge of the injunction.
According to Pohlman, who conducted the investigation and led the closeout, he understood Ohio law to require more than mere possession of a poker machine by a liquor establishment in order to establish illegal conduct. Thus, Pohlman's goal in investigating was to obtain or witness a "payoff" from the establishment. Pohlman investigated and asserted that he had observed and obtained payoffs at the Stagecoach. Plaintiffs deny that the Stagecoach made payoffs, and logs kept by Pohlman of his daily activities during the investigation fail to confirm his statements that payoffs were made.
Shortly before the raid, ODLC contacted Massullo and requested assistance. Massullo supplied armed officers without inquiring about the investigation and without instructing the officers regarding the use of firearms. According to the plaintiffs, Massullo entered the Stagecoach while his officers were present and praised them. Massullo later issued a press release publicizing the "co-operation" between his department and ODLC.
Pohlman characterized the township police department's function as providing security. Pohlman explained that he felt there was a need for additional security because he had observed fights inside the Stagecoach.
The principal issues presented in this appeal are (1) whether the district court impermissibly engaged in weighing the evidence and making credibility determinations in considering the motions for summary judgment, (2) whether qualified immunity was precluded by defendants' alleged actual knowledge of a state court injunction prohibiting seizure of the machines or actual knowledge that under Ohio law mere possession of the machines by a liquor establishment was not enough to establish their illegality, (3) whether there was a genuine issue of fact that Beaver Township had a policy or custom that was the moving force behind the alleged constitutional injuries, and (4) whether the district court should entertain the pendent claims.
In ruling on a motion for summary judgment, the district court must construe all the evidence and inferences to be drawn from the evidence in the light most favorable to the nonmoving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). Summary judgment is appropriate if there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Thus, summary judgment is inappropriate "[w]here the record taken as a whole could ... lead a rational trier of fact to find for the non-moving party." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A section 1983 action must be based upon violation of a federal constitutional or statutory right. Qualified immunity is available to officials performing discretionary functions unless "the contours of the right that the government official allegedly violated [were] 'sufficiently clear that a reasonable official would have understood that what he is doing violates that right.' " Poe v. Haydon, 853 F.2d 418, 425 (6th Cir.1988) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)), cert. denied, 488 U.S. 1007 (1989). When the dispositive issue is qualified immunity, the court should deny summary judgment if there is a genuine issue of fact on which the question of immunity turns. Id. Rulings on qualified immunity and summary judgments are reviewed de novo. Eugene D. v. Karman, 889 F.2d 701, 706 (6th Cir.1989), cert. denied, 110 S.Ct. 2631 (1990); Storer Communications, Inc. v. National Ass'n of Broadcast Employees, 854 F.2d 144, 146 (6th Cir.1988).
In granting summary judgment for the defendants, the district court held that a state statute which granted ODLC the right to conduct an administrative inspection of liquor establishments coupled with the belief that gambling violations were occurring on the premises justified the defendants' actions. The district court held that the statements of Pohlman were sufficient to establish probable cause for the seizure and arrest. The court also held that the pat-down search and the presence of armed officers was reasonable under the circumstances, but the court failed to discuss the alleged pointing of the weapons at persons inside the Stagecoach. Finally, the district court held that there was no evidence of an established custom or policy by Beaver Township upon which to base liability.
Plaintiffs challenge the district court's ruling as an improper weighing of the evidence and resolution of disputed issues of fact. Plaintiffs also point to alleged actual knowledge on the part of the defendants that their conduct was illegal and argue that liability is proper against Beaver Township given defendant Massullo's final control over day-to-day law enforcement matters.
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