Berry v. Leslie

• Decision Date: 16 September 2014
• Docket Number: No. 13–14092.,13–14092.
• Citation: 767 F.3d 1144
• Parties: Brian BERRY, Jermario Anderson, Reginald Trammon, Edwyn Durant, Plaintiffs–Appellees, v. Travis LESLIE, Deputy, Keith Vidler, Corporal, in his individual Capacity, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

767 F.3d 1144

Brian BERRY, Jermario Anderson, Reginald Trammon, Edwyn Durant, Plaintiffs–Appellees,

v.Travis LESLIE, Deputy, Keith Vidler, Corporal, in his individual Capacity, Defendants–Appellants.

No. 13–14092.

United States Court of Appeals, Eleventh Circuit.

Sept. 16, 2014.

Shayan H. Modarres, Jackson & Modarres, Natalie Jackson, Women's Trial Group, Orlando, FL, for Plaintiffs–Appellees.

Bruce Robert Bogan, Deborah Irene Mitchell, Melissa Jean Sydow, Hilyard Bogan & Palmer, PA, Orlando, FL, for Defendants–Appellants.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:11–cv–01740–CEH–KRS.

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

ROSENBAUM, Circuit Judge:

It was a scene right out of a Hollywood movie. On August 21, 2010, after more than a month of planning, teams from the Orange County Sheriff's Office descended on multiple target locations. They blocked the entrances and exits to the parking lots so no one could leave and no one could enter. With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants—and demanded to see their barbers' licenses. The Orange County Sheriff's Office was providing muscle for the Florida Department of Business and Professional Regulation's administrative inspection of barbershops to discover licensing violations.

We first held nineteen years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights. See Swint v. City of Wadley, 51 F.3d 988 (11th Cir.1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriff's Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity. See Bruce v. Beary, 498 F.3d 1232 (11th Cir.2007). Today, we repeat that same message once again. We hope that the third time will be the charm.

I.

The instant case arises from an unannounced, warrantless inspection of a barbershop by officers of the Orange County Sheriff's Office (“OCSO”) and representatives from the Florida Department of Business and Professional Regulation (“DBPR”). On August 21, 2010, OCSO and the DBPR conducted planned sweeps of several barbershops, located in predominantly Hispanic and African–American neighborhoods, with the purported intent of discovering violations of state licensing laws.

Plaintiff–Appellee Brian Berry is the sole owner of Strictly Skillz Barbershop, one of the targets of the operation. Berry is a licensed barber and has been operating Strictly Skillz since 2007. Plaintiffs–Appellees Edwyn Durant, Reginald Trammon, and Jermario Anderson are licensed barbers who rent barbering chairs at Strictly Skillz for a weekly rental fee. All four plaintiffs, who were subject to OCSO and the DBPR's “administrative inspection” of Strictly Skillz, sued several OCSO officers, including Appellants Corporal Keith Vidler and Deputy Travis Leslie, alleging that the officers violated their Fourth Amendment rights to be free from unreasonable searches and seizures.

II.

The DBPR is tasked with regulating and enforcing statutes and rules associated with professional licenses. Barbershops are subject to this regulatory framework and are governed by § 476.184, Fla. Stat., and its implementing rules. Under the rules, DBPR inspectors are authorized to conduct biennial inspections to ensure that barbershops are in compliance with state licensing and sanitation laws. But the DBPR is not empowered to take law-enforcement action and must rely on local law enforcement to address violations of state law.

The impetus for the sting operation stemmed from a chance encounter between DBPR inspector Amanda Fields and Corporal Vidler, during which Fields complained of some of the difficulties that she had encountered in conducting her barbershop inspections. Upon discovering that barbering without a license is a second-degree misdemeanor under Florida law, seeFla. Stat. § 476.194, ¹ Vidler became intrigued by the possibility of a collaboration between the DBPR and OCSO and spent over a month, together with other OCSO officers and DBPR representatives, developing a plan for a joint sweep operation of various barbershops and salons. The barbershops chosen for the operation were apparently selected because they or barbers within them had on previous occasions failed to cooperate with DBPR inspectors.² All of the targeted barbershops were businesses that serviced primarily African–American and Hispanic clientele.

Vidler prepared the OCSO Operations Plan, which provided that the sweeps would be executed by two teams, each consisting of a supervisor, a narcotics agent, a plain-clothes deputy, three uniformed deputies, and two DBPR agents. Although the stated goal of the operation was “to assist the DBPR in the detention and identification of unlicensed barbers and hair stylist[s],” the plan also contemplated other law-enforcement objectives. For example, the plan provided that any contraband discovered during the inspection had to be turned over to OCSO for prosecution and that the officers, with the assistance of narcotics agents, would identify and handle any narcotics, gather intelligence, and interview potential confidential informants.

On August 19, 2010, two days before the sweep, Inspector Fields and another DBPR inspector conducted walkthroughs of six of the target locations, including Strictly Skillz. Though the purpose of the walkthrough was to gather information for the operation, the inspectors did so under the guise of performing a routine inspection, verifying that the barbers' licenses were current and valid and inspecting the barbers' workstations. During the inspection of Strictly Skillz, the barbers were cooperative, no violations were found, and no citations were issued. Inspector Fields even commended Berry on the tremendous progress he had made in the shop.

Despite the fact that just two days earlier Strictly Skillz had passed inspection without any problems whatsoever and that the DBPR is permitted to conduct inspections only once every two years, on August 21, 2010, OCSO and the DBPR conducted a second inspection as part of the sting operation. The record, viewed in the light most favorable to the plaintiffs, reveals that the sweep of Strictly Skillz occurred as follows: Two plain clothes officers initially entered the barbershop to observe any potential violations. Five or six barbers were on duty at the time, and the shop was filled with anywhere from ten to twenty-five waiting customers. As the first day of the school year was approaching, several of the customers in the shop were children.

Shortly after the arrival of the plain-clothes officers, a “whole bunch” of police cars pulled into the shopping plaza and completely blocked off the parking lot, preventing all ingress and egress. Officers then “rushed into” Strictly Skillz “like [a] SWAT team.” Based on the plaintiffs' collective recollection, it appears that somewhere between eight and ten officers, including narcotics agents, descended upon the barbershop, along with a DBPR inspector. Some of the officers donned masks and bulletproof vests and had their guns drawn. The officers immediately ordered all of the customers to exit the shop and announced that the shop was “closed down indefinitely.”

Plaintiffs Trammon, Anderson, and Durant were in the barbershop when the officers stormed in. The officers directed Anderson and Durant to present their driver's licenses for identification, and Inspector Fields instructed Anderson to retrieve his barbering license from his work station. Trammon and Anderson, who were in the process of cutting customers' hair, were then immediately patted down and handcuffed with plastic zip ties. Anderson was handcuffed by a masked officer, and Trammon was restrained by two deputies who were not wearing masks. Sometime after Trammon was handcuffed, he informed the officers that he was in possession of a concealed firearm for which he had a valid concealed-weapons permit. The officers patted him down to retrieve the weapon and located the permit without incident.

Vidler, who was the supervisor on the scene, admits that he ordered deputies to detain Trammon. When Trammon argued to one of the officers that he had done nothing wrong, the officer responded, “It's a pretty big book, I'm pretty sure I can find something in here to take you to jail for.” Durant, though told to “sit down and shut up,” was not handcuffed and was eventually permitted to leave the shop.

Shortly thereafter, Berry, who had been behind the shop in the parking lot when the officers initially entered, walked into Strictly Skillz through the back entrance. Upon seeing that Trammon and Anderson were in handcuffs and being patted down by officers, Berry made his way to the front of the shop, identified himself as the owner, and demanded to know what was going on and why Trammon and Anderson were in handcuffs. Deputy Leslie then immediately placed Berry into metal handcuffs and patted him down. Though angry, Berry did not physically resist and complied with the officers' instructions.

While Trammon, Anderson, and Berry were restrained, Inspector Fields and the OCSO officers conducted their “inspection” of the barbershop. OCSO officers called in the barbers' driver's license information to ascertain whether any of them had outstanding warrants, and Inspector Fields, for the second time in two days, checked the barbering licenses to ensure that they were still valid and current. The officers, along with Inspector Fields, then searched the premises by inspecting each of the barbers' workstations and looking through their drawers. OCSO...