Get Away Club, Inc. v. Coleman

Decision Date13 July 1992
Docket NumberNo. 91-2278,91-2278
Citation969 F.2d 664
PartiesGET AWAY CLUB, INC., Appellee, v. Vic COLEMAN, Jim Snyder, Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

J. Mark Lewis, Asst. Atty. Gen., Little Rock, Ark., argued, for appellants.

Bill McLean, Little Rock, Ark., argued, for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Appellants Vic Coleman and Jim Snyder (the "troopers"), both members of the Arkansas State Police, appeal from the district court's partial denial of their motion for summary judgment on claims brought against them pursuant to 42 U.S.C. § 1983 (1988) in violation of the Fifth and Fourteenth Amendments. The district court held that the troopers were not entitled to qualified immunity and that a genuine issue of material fact still exists concerning the location and frequency of the state police roadblocks which are at the core of Get Away's complaint. We reverse in part, affirm in part, and remand the case to the district court for further proceedings consistent with this opinion.


The troopers conducted both roadblocks and stationary patrols in 1989 along Highway 165 near Dumas, Arkansas, on which both Get Away Club, Inc. and another competing liquor-dispensing establishment, Pendleton Marina, are located. Get Away contends that the troopers have impermissibly "singled-out" its premises by conducting the roadblocks and stationary patrols "approximately three or four times per week within 200 yards" of its premises. Get Away alleges that the troopers' actions have caused an economic hardship by depriving it of "significant revenues." Get Away argues that this action constitutes a taking of property under the Fifth Amendment without the payment of just compensation.

The troopers disagree. They contend that the 1989 police radio log indicates that only five roadblocks were conducted in 1989 along Highway 165. Moreover, the troopers contend that the roadblocks were conducted outside the view from Get Away's premises. The troopers also emphasize the fact that they conducted the roadblocks and stationary patrols in conformity with the consent decree entered into by the Arkansas State Police that sets forth the specific requirements for conducting a lawful roadblock in the State of Arkansas. See Garrett v. Goodwin, 569 F.Supp. 106 (E.D.Ark.1982). The troopers moved for summary judgment arguing, among other things, that they are entitled to qualified immunity on the claim for civil damages and that they are entitled to judgment as a matter of law because no genuine issue of material fact exists.

The district court granted summary judgment in favor of the troopers on Get Away's claim seeking relief on behalf of its patrons under the Fourth Amendment and on the alleged violations of the consent decree. The district court, however, denied summary judgment to the troopers on the issue of qualified immunity and also held that a material factual dispute remains concerning the location and frequency of the roadblocks and stationary patrols. The troopers appeal from this order.


On appeal, this court's standard in reviewing a denial or grant of summary judgment by the district court is de novo. United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.1992). Therefore, we apply the same standard as applied by the district court. United Tel. Co. of Mo. v. Johnson Publishing Co., Inc., 855 F.2d 604, 607 (8th Cir.1988). We examine the entire record in the light most favorable to Get Away. Economy Housing Co. v. Continental Forest Products, Inc., 757 F.2d 200, 203 (8th Cir.1985) (citation omitted). Summary judgment is appropriate when there is no dispute between the parties as to any genuine issue of material fact and when the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). Therefore, the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment to the troopers. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Instead, "the dispute must be outcome determinative under prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir.1989) (citation omitted).


The troopers first argue that they are entitled to qualified immunity on the issue of civil damages as to Get Away's contention that their conduct constituted a taking under the Fifth Amendment. The troopers contend that they acted in good faith and complied at all times with the consent decree. Get Away responds by arguing that the district court's denial of qualified immunity is correct because the troopers "either intentionally or by reckless disregard for [its] rights, have embarked on an alleged unreasonable course of conduct which could only damage [its] business."

In Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), the Supreme Court clarified the proper analysis for determining when a public official is entitled to qualified immunity. First, Get Away must assert a violation of its constitutional rights. Id. If no constitutional right has been asserted, Get Away's complaint must be dismissed. Id. If, however, Get Away asserts a violation of its constitutional rights, the second step in the analysis is to decide whether the applicable law pertaining to the constitutional right in question was "clearly established." Id. "If the law was clearly established, the [qualified] immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing [one's] conduct." Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). On the other hand, "[i]f the law at that time was not clearly established, [the troopers] could not reasonably be expected to anticipate subsequent legal developments, nor could [t]he[y] fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." Id. at 818, 102 S.Ct. at 2738. This "qualified immunity [defense] accommodates competing social interests by ensuring that officials who 'knowingly violate the law' are held accountable, while officials who reasonably exercise their discretion may do so without fear of being sued." Warner v. Graham, 845 F.2d 179, 182 (8th Cir.1988) (citing Arcoren v. Peters, 829 F.2d 671, 673 (8th Cir.1987) (en banc), cert. denied, 485 U.S. 987, 108 S.Ct. 1290, 99 L.Ed.2d 500 (1988)). If Get Away can show that the troopers' conduct violated clearly established law, "then the [troopers], as the movant[s] for summary judgment, must demonstrate that no material issues of fact remain as to whether the [troopers'] actions were objectively reasonable in light of the law and the information the [troopers] possessed at the time of [their] actions." Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir.1991) (citations omitted).

Get Away asserts that the troopers' actions in conducting the roadblocks and stationary patrols constituted a taking of property without just compensation in violation of its Fifth Amendment rights. Get Away has therefore met the first step in the qualified immunity analysis as required by Harlow and Siegert. Next, Get Away bears the burden of proving that the law pertaining to the Takings Clause of the Fifth Amendment was "clearly established" in 1989 when the troopers conducted the roadblock and stationary patrols. In other words, the law in 1989 must have been sufficiently clear that the troopers would have reasonably known that their actions violated Get Away's "basic, unquestioned constitutional rights." See Warner v. Graham, 845 F.2d 179, 182 (8th Cir.1988); see also Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1986).

"The question of what constitutes a 'taking' for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty." Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 123, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). "There is no 'set formula' for determining when 'justice and fairness' require [that] governmental action be deemed a 'taking of property' under the [F]ifth [A]mendment." In Re Prines, 867 F.2d 478, 485 (8th Cir.1989) (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005, 104 S.Ct. 2862, 2874, 81 L.Ed.2d 815 (1984)). Indeed, the analysis depends largely " 'upon the particular circumstances [in that] case.' " Penn Cent., 438 U.S. at 124, 98 S.Ct. at 2659 (quotation omitted). We must " 'examine[ ] the 'taking' question by engaging in essentially ad hoc, factual inquiries that have identified several factors--such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the governmental action--that have particular significance.' " MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 349, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1985) (quotations omitted).

Get Away contends that the law in 1989 clearly established that the troopers' actions in question constituted a taking under the Fifth Amendment. We disagree. First, Get Away fails to cite any authority holding that the establishment of a state police roadblock which momentarily detains motorists constitutes a taking of a non-detained person's property under the Fifth Amendment. We were equally unable to discover any authority supporting this novel argument.

Second, with regard to the economic impact of the roadblock, Get Away baldly asserts that the troopers' conduct has caused "great revenue losses" and that the troopers have "targeted" its establishment with the "specific purpose of chilling its business." Such assertions are conclusory and fail to meet the rule's mandate to come forward with "specific...

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