Watson v. Abington Tp.

Decision Date16 February 2007
Docket NumberNo. 05-4133.,05-4133.
Citation478 F.3d 144
PartiesAntonio D. WATSON; Tony Tix, Inc.; Gerald W. Kelly; Just Jerry's Inc, t/a and d/b/a Scoreboard Restaurant & Tavern; Robert Kennedy v. ABINGTON TOWNSHIP; Abington Township Police Department; Chief William J. Kelly, Individually and in his Official capacity as a Police Chief, Abington Township Police Department; Detective Richard L. Kondon, Badge No.1981, Individually and in his Official Capacity as a Police Officer, Abington Township Police Department; Detective John Parks, Badge No. 0092, Individually and in his Official capacity as a Police Officer, Abington Township Police Department; Detective Anthony Ammaturo, Badge No. 1556, Individually and in his Official Capacity as a Police Officer, Abington Township Police Department Gerald W. Kelly, Just Jerry's Inc. t/a and d/b/a Scoreboard Restaurant & Tavern, Appellants.
CourtU.S. Court of Appeals — Third Circuit

D. Louis Nicholson (Argued), Philadelphia, PA, for Appellants.

Walter F. Kawalec, III (Argued), Marshall, Dennehey, Warner, Coleman & Goggin, Cherry Hill, NJ, Joseph J. Santarone, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, King of Prussia, PA, for Appellees.

Before FUENTES, FISHER and BRIGHT,* Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

Gerald Kelly and his business Just Jerry's, Inc. (collectively "Plaintiffs") appeal from a decision of the United States District Court for the Eastern District of Pennsylvania dismissing their claims against Abington Township, the Abington Township Police Department, Police Chief William Kelly,1 and three individual officers (collectively, "Defendants") under 42 U.S.C. § 1983. The District Court dismissed the Plaintiffs' Fourth Amendment claim under Federal Rule of Civil Procedure 12(b)(6) based on the closely regulated industry exception to the warrant requirement. It also granted summary judgment to the Defendants on the Plaintiffs' Fourteenth Amendment claim, based on a lack of evidence from which a jury could infer a municipal policy or custom of discriminating against African-Americans. For the reasons set forth below, we will vacate the District Court's dismissal of the Plaintiffs' Fourth Amendment claim, and affirm the Court's summary judgment ruling on the Plaintiffs' Fourteenth Amendment claim.

I.

Because this case comes to us on a motion to dismiss and a grant of summary judgment, we will view the facts in the light most favorable to the non-moving party, in this case the Plaintiffs.

In 1993, Gerald Kelly retired from the Abington Township Police Department as a lieutenant, after twenty-eight years on the force. Upon his retirement, Kelly purchased the Scoreboard Restaurant and Tavern ("Scoreboard"), and set it up under the corporate entity Just Jerry's, Inc. Kelly and his wife also purchased the property on which the restaurant was located, but did so under their own names.

On August 10, 1998, Kelly leased a storefront adjacent to the Scoreboard to Antonio Watson, an African-American who was an original plaintiff in this case.2 Watson used the property to operate a ticket agency named Tony Tix, Inc. Tony Tix remained open from October 1998 to February 2000, and was reportedly very successful during this time.

Shortly after Tony Tix opened, Lieutenants Peter Hasson and George Magalish of the Abington Township Police Department reportedly spoke to Kelly about Watson.3 They asked about his background and his business. During their discussion, Kelly mentioned his plans to sell the Scoreboard to Watson. Kelly testified that upon learning of these plans, Lt. Hasson allegedly said "[w]e heard you're . . . selling the bar to [Watson]. And [Kelly] said, [w]ell, you won't be mad when I sell it to a black guy. [Hasson] said, [w]ell, we can raid you out of business and you can buy it back cheap and then he just laughed."

The Plaintiffs argue that, although Kelly never sold the bar to Watson, the police did precisely what Lt. Hasson suggested they would do: raid him out of business based on his association with Watson. On May 20, 1999; December 18, 1999; August 3, 2000; and November 25, 2000, the Abington Township Police Department conducted sweeps of the Scoreboard. During these raids, between five and fifteen uniformed officers would enter the bar. One officer would secure the door, while others would walk around and check the identification of the bar's patrons. The officer at the door prevented anyone from entering or leaving until the sweep was complete.

On the dates that the officers searched the Scoreboard, other bars were also swept. For example, on May 20, 1999, officers also swept the McKinley Tavern, Hollywood Tavern, Union Jacks Old Glory Pub, and Keswick Tavern. The Defendants claim that the sweeps began in 1999, and were funded by grants provided by the Commonwealth of Pennsylvania. However, Lt. Hasson testified that on May 20, 1999, no one from either the Liquor Control Board or the enforcement bureau accompanied the officers in their search of the Scoreboard. According to his testimony, an agent from the enforcement bureau did accompany the officers during the December 18 and August 3 sweeps. Nothing in the record confirms this claim.

The Plaintiffs also claim that, beginning in 1998, the Defendants would often station a marked police vehicle in the parking lot directly across the street from the Scoreboard. On one occasion in either 1998 or 1999, the Defendants set up a Driving Under the Influence ("DUI") checkpoint directly in front of the Scoreboard. During this checkpoint, floodlights illuminated the bar.

The Plaintiffs presented sworn affidavits from several individuals who were familiar with the Abington Township Police Department's activities at the Scoreboard. Eugene Chapman, an African-American, was a frequent patron of the Scoreboard, who lived behind the establishment. According to his affidavit, he was followed on several occasions for no legitimate reason by Township police when he drove from behind the Scoreboard. He has been stopped seven times by the Department, but has never received a ticket or citation. Chapman also stated that he was present for a raid of the Scoreboard, during which the officers made all of the customers lie on the floor. In addition, he saw the Department set up highly visible DUI checkpoints very close to the Scoreboard every other weekend. In 2003, he was harassed while parked in a public park by officers who said they had a call that "a strange man was in his car in the park watching television."

James Barry, a floor manager for the Scoreboard, also submitted an affidavit. He claimed to have been present on at least seven occasions when Abington Township police raided the establishment. One week, they raided the bar two nights in a row. According to him, no other bars were being raided in this manner. During these raids, African-American customers were harassed more than Caucasian customers. Officers were also stopping Scoreboard patrons for no apparent legitimate reason after they left the bar. This happened to African-American customers more frequently than to Caucasian patrons. In addition, a marked police car was parked across the street from the Scoreboard every night, and this car was visible to customers. According to Barry, these actions destroyed the Scoreboard's business.

Robert Kennedy, an employee of the Scoreboard, submitted an affidavit claiming that he observed a uniformed, African-American female officer harass a black customer. On one occasion, Kennedy witnessed the Department set up a DUI checkpoint immediately outside the Scoreboard's parking lot.

The Plaintiffs also presented Kelly's deposition testimony in order to provide an inside view of the Abington Township Police Department. Based on his twenty-eight years with the Department, he testified that it was "common knowledge" that racial profiling in traffic stops was an easy way for an officer to increase the number of traffic tickets he issued. Kelly himself had racially profiled cars leaving Philadelphia as a way to get quick tickets.

According to Kelly, there was a high number of profiling car stops of African-Americans coming out of Philadelphia, and African-Americans were stopped more often than Caucasians. He also alleged that the police department applied a different standard to African-Americans and other minorities than it applied to Caucasians. Kelly believed that the racial profiling occurred on a weekly basis, and that it was still occurring when he retired in 1993.

In addition to the profiling, Kelly testified that he heard a number of racial slurs during his twenty-eight years at the Department. He claims to have heard them approximately on a monthly basis. Detective Richard Kondon, a defendant in this case, testified that he also heard racial epithets while at work, but did not discuss their frequency.

Kelly also testified that he did not know of anyone ever being reprimanded for making racial slurs. However, Chief Kelly testified that he personally heard only two racial epithets uttered by Township officers during his eighteen years as chief, and that he punished the offending officer both times. One slur was directed at African-Americans, and the other at Jews. Both of the officers who used these slurs were suspended.

According to Kelly, most of the Department knew about the racial profiling, and Chief Kelly "should have known." When asked if Chief Kelly knew about the racial profiling and racial slurs, Kelly answered, "[y]es, I would say. Unless you're totally absent from there, you have to hear something." When asked if Chief Kelly was totally absent, Kelly replied "I don't believe so." However, when Kelly was asked if Chief Kelly was aware of officers uttering racial slurs, Kelly replied "Well, I assume at some point during [his] career [he] might [have] hear[d] a slur, yeah. That is an assumption. I can't say I have proof of anything."

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