Ruttenberg v. Jones , 283 F. App'x 121 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1037
DAVID M. RUTTENBERG; JUDITH G. RUTTENBERG; TRIPLE D
ENTERPRISES, INC.,
Plaintiffs - Appellants,
v.
FRANK JONES, Mayor of Manassas Park, Virginia, in his official
and individual capacities; JOHN EVANS, Chief of Police of
Manassas Park, Virginia, in his official and individual
capacities; DETECTIVE L, Manassas Park Police Detective, in
his official and individual capacities; CITY OF MANASSAS PARK,
VIRGINIA; DETECTIVE W, Prince William County Police Detective,
in his official and individual capacities; THOMAS L. KIFER, in
his official and individual capacities,
Defendants - Appellees.
--------------------------------------
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, INCORPORATED,
Amicus Supporting Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:06-cv-00639-TSE-BR)
Argued: March 19, 2008 Decided: June 17, 2008
Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and Irene
M. KEELEY, United States District Judge for the Northern District
of West Virginia, sitting by designation.
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
ARGUED: Judith Lynne Wheat, WHEAT & WU, Washington, D.C., for
Appellants. John David Wilburn, MCGUIREWOODS, L.L.P., McLean,
Virginia, for Appellees. ON BRIEF: Neil H. Ruttenberg, Beltsville,
Maryland, for Appellants. Anand V. Ramana, MCGUIREWOODS, L.L.P.,
McLean, Virginia, for Appellees Frank Jones, John Evans, Detective
L, City of Manassas Park, Virginia; M. Alice Rowan, PRINCE WILLIAM
COUNTY, Prince William, Virginia, for Appellee Detective W.
Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA
FOUNDATION, INC., Richmond, Virginia, for Amicus Supporting
Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
David Ruttenberg, Judith Ruttenberg, and Triple D Enterprises,
Inc. (collectively “Appellants”) appeal the dismissal of their
complaint, which alleged that numerous officials of the City of
Manassas Park and Prince William County and the City of Manassas
Park itself (collectively “Appellees”) violated their rights under
the First, Fourth, and Fourteenth Amendments during an alleged
multi-year course of conduct designed to harm Appellants and
destroy their business by, among other things, manufacturing
evidence of illegal drug transactions, conducting an illegal search
of the business, and committing perjury during state administrative
proceedings. The district court dismissed Appellants’ First and
Fourteenth Amendment claims for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) and dismissed Appellants’
Fourth Amendment claim because it concluded that Appellees were
entitled to qualified immunity for their actions. We affirm the
dismissal of Appellants’ First and Fourteenth Amendment claims, but
reverse the district court’s dismissal of the Fourth Amendment
claim and remand for further proceedings consistent with this
decision.
I.
The district court granted Appellees’ motion to dismiss, so we
accept as true the well-pleaded allegations stated in the complaint
3
and view the complaint in the light most favorable to Appellants.
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
These facts can be summarized as follows:
David Ruttenberg and his mother Judith Ruttenberg, both
citizens of Maryland, own and operate Triple D Enterprises, Inc.
(“Triple D”), a Maryland corporation with its principal place of
business in Virginia. In 1992, Triple D opened the Rack ‘N’ Roll
Billiard Club (“RNR”) in Manassas Park Shopping Center, located in
the independent city of Manassas Park, Virginia. In 1993, RNR
applied for, and was granted, a Virginia Alcoholic Beverage Control
(“ABC”) license for beer. RNR also possessed a conditional-use
permit from the City of Manassas Park allowing the operation of the
business on the premises. Until 2004, RNR received no citations
for ABC violations although it was subject to ABC’s undercover
monitoring program. From 1993 to 2004, the business was generally
very successful and well-known in the community, so much so that
the Vice-Mayor of Manassas Park actually served as a disc jockey at
the club for four years.
In the fall of 2001, Detective L, a police officer with the
City of Manassas Park Police Department, began dating Nina Buell,
a friend of David Ruttenberg (hereinafter “Ruttenberg”). Detective
L “did not like David Ruttenberg’s friendship with Buell.” (J.A.
at 65.) Tina McKnight, a RNR waitress, informed Ruttenberg that
Buell had told her of a conversation with Detective L in which he
4
informed Buell that Ruttenberg was under investigation for cocaine
use and distribution. Ruttenberg called Detective L to discuss the
allegation, and Detective L responded by contacting McKnight and
berating her until she retracted her previous statement. Detective
L then told Ruttenberg that he would “take down” Ruttenberg and RNR
if he heard anything more about the issue. (J.A. at 66.)
In response, Ruttenberg called Detective L’s superior, Officer
Larry Berry, and informed him of the threat and Ruttenberg’s belief
that “[Detective L] seemed intent on destroying [him] and RNR” by
alleging that he was “under some kind of criminal investigation for
drug distribution.” (J.A. at 66.) Officer Berry then cancelled a
“ride-along” that Detective L had arranged for himself and Buell.
(J.A. at 67.)
Thereafter, in late 2001, Detective L initiated a plan to
retaliate against Ruttenberg. According to Appellants, the plan
began in December 2001, when Detective L initiated “bogus charges”
against Ruttenberg. (J.A. at 68.) Ruttenberg had previously
reported that an employee had stolen equipment from RNR, but when
he learned that the employee faced significant jail time due to
prior convictions, Ruttenberg, in an act of mercy, decided not to
pursue the complaint. Following that decision, Ruttenberg was
charged with filing a false police report; on his court date, the
charges were dismissed even though Ruttenberg saw Detective L in
the courtroom that day.
5
After this incident, Ruttenberg and his father Neil
Ruttenberg, who is an attorney, met with John Evans, the Manassas
Park Police Chief, to discuss Detective L’s conduct. Chief Evans,
however, took no action against Detective L.
By the spring of 2003, Detective L had become a member of the
Narcotics Task Force, a joint effort among the Prince William
County, the City of Manassas, and the City of Manassas Park Police
Departments to curb drug use and distribution. Around this time,
a female friend of Ruttenberg was arrested for driving while
intoxicated. Detective L met with her and offered to dismiss the
charges if she would help facilitate drug transactions on the
premises of the RNR. Subsequently, she informed Ruttenberg of the
Narcotics Task Force’s offer, and she later told Ruttenberg that
the Task Force was planning a raid at RNR to apprehend the
perpetrators of drug transactions conducted at RNR and to search
RNR. Upon hearing this information, Ruttenberg immediately
contacted Chief Evans to complain about Detective L’s actions. No
raid occurred at that time, but the charges against Ruttenberg’s
female friend were reinstated.
Thereafter, in late 2003 or early 2004, Detective L became the
case agent for a Narcotics Task Force investigation into
Ruttenberg’s alleged cocaine use and distribution at RNR. At that
time, Detective L came into contact with Thomas L. Kifer, a
convicted felon who was in jail for passing bad checks at RNR.
6
Prior to his time in prison, Kifer had worked for RNR performing
various odd jobs, including door security. Detective L asked Kifer
to become a paid police informant and to aid in the investigation
of Ruttenberg. Kifer, who blamed Ruttenberg for his jail stint,
agreed and later told a subsequent employer that he was part of a
plot to destroy Ruttenberg.
In January 2004, after his release from jail, Kifer approached
Ruttenberg about providing door security at RNR. Although
initially hesitant to rehire Kifer, Ruttenberg eventually relented.
Ruttenberg clearly communicated to Kifer and his other employees
that RNR’s policy was that drug dealers were not to be tolerated on
the premises and that known drug dealers were to be removed from
the premises immediately.
In February 2004, Detective L assigned Detective W, a
detective with the Prince William County Police Department and a
member of the Narcotics Task Force, to help investigate Ruttenberg
and RNR. Detective L told Detective W that RNR was an “open air
drug market,” (J.A. at 73), although there was no evidence
supporting such an assertion.
During this time period, Ruttenberg was paying Jeffrey Price,
a homeless individual, to perform custodial and cleaning services
at RNR after hours. Ruttenberg became aware that Price had an
arrest record and became suspicious that Price was dealing drugs at
7
RNR. He confronted Price, who stated he was working with the
police but was not engaged in illegal activity at RNR.
Nonetheless, between February 25, 2004 and April 19, 2004,
Detective W purchased drugs on eight occasions at RNR, and on seven
of those occasions he bought the drugs from Price. Detective W was
the only purchaser in any of the illegal drug transactions at RNR,
and Kifer was aware of these transactions but, because of his
status as a police informant working with Detective L and Detective
W, he continually permitted Price and other drug dealers with whom
he was acquainted onto the premises at RNR. Kifer apparently
received payments from several drug dealers in exchange for
allowing them to enter the premises. Neither Ruttenberg himself,
nor any employees of RNR other than Kifer, were involved in these
drug transactions.
Despite these transactions involving Detective W, Detective L
was unable to procure a search warrant for RNR. Undeterred,
Detective L and the Narcotics Task Force contacted Special Agent
Loftis of the Virginia ABC authorities to request the participation
of ABC authorities in conducting an administrative search at the
RNR. Because it held an ABC license, RNR was subject to
administrative searches by ABC Special Agents. See 3 Va. Admin.
Code § 5-50-70(B) (2007). Special Agent Loftis agreed and, on June
2, 2004, the Narcotics Task Force raided RNR with over fifty police
and law enforcement personnel. Only six or seven of the law
8
enforcement personnel were ABC agents and many of the participants
were “heavily armed SWAT team members, in full tactical gear.”
(J.A. at 76.) During the raid, which lasted between one and two
hours, the heavily-armed law enforcement personnel detained and
searched RNR patrons and employees. Additionally, the officers
searched Ruttenberg’s private office, in which they found two
bottles of vodka.
The team of officers discovered only one ABC violation as part
of the raid: Ruttenberg kept two bottles of un-chilled Mexican
beer that should have been labeled as “samples,” but were not.
(J.A. at 78.) According to the complaint, only Jeffrey Price, one
of the participants in the drug transactions orchestrated by
Detective W, was arrested.
Following the raid, Ruttenberg, accompanied by a friend who
was a police officer on sabbatical from the Prince William County
Police Department, went to the Northern Virginia Electrical
Cooperative (“NOVEC”) to pay RNR’s electric bill. Upon arriving in
the NOVEC parking lot, two Prince William County police cruisers
blocked Ruttenberg’s car. The officers, who were members of the
Narcotics Task Force, exited the police vehicles with their weapons
drawn and pointed at Ruttenberg and his friend. Once Ruttenberg’s
friend identified himself, the officers immediately withdrew.
In the weeks following the raid, Frank Jones, the Mayor of
Manassas Park, and Chief Evans began patrolling the area around RNR
to obtain information about alleged illegal activity occurring at
9
RNR. Appellants claim that Ruttenberg and others observed Mayor
Jones outside RNR at odd hours of the night, including past
midnight on numerous occasions.
As a result of the raid, the ABC Board identified four
violations at RNR: (1) disorderly conduct (based on information
provided by Detective W that female patrons exposed their breasts
on three occasions in a four-month period); (2) serving as a
meeting place or rendezvous for users of narcotics/drunks/etc.; (3)
keeping or allowing to be kept unauthorized alcoholic beverages
(the samples of Mexican beer) on the premises; and (4) consumption
of alcoholic beverages by a person less than twenty-one years of
age. Based on these violations, in late 2005, the ABC Board held
an evidentiary hearing and revoked Triple D’s ABC license.
Appellants allege that Detective L and Kifer perjured themselves
during this hearing, and that the deprivation of the ABC license
arose from the “deliberate, conscience shocking campaign” of the
defendants. (J.A. at 82.) Prior to these citations, Triple D had
a perfectly clean record. And, to this date, Ruttenberg has not
been arrested or charged with any drug-related offenses.
In 2006, the Manassas Park City Council voted to deny Triple
D’s request to renew its conditional-use permit and ordered Triple
D to vacate the premises on which RNR was located. Both decisions
remain on appeal in the Virginia state court system.
Based upon these events, on June 1, 2006, Appellants filed an
eight count complaint in the United States District Court for the
10
Eastern District of Virginia against Mayor Jones, Chief Evans,
Detective L, Detective W, the City of Manassas Park, and Thomas
Kifer alleging (1) that all the defendants violated Ruttenberg’s
Due Process rights under the Fourteenth Amendment by depriving
Ruttenberg of his ABC license, conditional-use permit, and right to
conduct his business (Count I);1 (2) that Chief Evans, Detective L,
Detective W, Kifer, and the City of Manassas Park retaliated
against Ruttenberg for exercising his right to freedom of speech
under the First Amendment (Count II); (3) that Chief Evans,
Detective L, Detective W, Kifer, and the City of Manassas Park
engaged in an unreasonable search and seizure in violation of the
Fourth Amendment (Count III); (4) that Mayor Jones, Chief Evans,
Detective L, Detective W, and the City of Manassas Park selectively
prosecuted Ruttenberg in violation of the Fourteenth Amendment’s
Equal Protection Clause (Count IV); (5) that Mayor Jones, Chief
Evans, Detective L, Detective W, and Kifer entered a conspiracy to
violate Ruttenberg’s civil and constitutional rights (Count V); (6)
that Mayor Jones, Chief Evans, Detective L, Detective W, and Kifer
1
Appellees argue that we should affirm the dismissal of Count
I because the Rooker-Feldman doctrine deprives us of jurisdiction
to hear issues related to the ABC and the conditional-use permit
proceedings. But as Appellee Prince William County conceded before
the district court, the Rooker-Feldman doctrine is inapposite
because “the Rooker-Feldman doctrine applies only when the loser in
state court files suit in federal district court seeking redress
for an injury allegedly caused by the state court’s decision
itself.” (J.A. at 14 (quoting Davani v. Virginia Dep’t of Transp.,
434 F.3d 712, 713 (4th Cir. 2006)). Here, there is not yet a final
state court decision, and Appellants seek redress for injuries
allegedly caused by Appellees’ actions, not a state court decision.
11
tortuously interfered with Ruttenberg’s contracts (Count VI); (7)
that Mayor Jones, Chief Evans, Detective L, Detective W, and Kifer
committed common law civil conspiracy against Ruttenberg (Count
VII); and (8) that Mayor Jones, Chief Evans, Detective L, Detective
W, and Kifer engaged in a business conspiracy against Ruttenberg in
violation of Va. Code Ann. §§ 18.2-499, 18.2-500 (2004 & Supp.
2007) (Count VIII).
On July 7, 2006, the defendants, under Federal Rule of Civil
Procedure 12(b)(6), moved to dismiss Appellants’ complaint for
failure to state a claim. The district court, by published
opinion, Ruttenberg v. Jones, 464 F.Supp. 2d 536 (E.D. Va. 2006),
granted the motion to dismiss on December 13, 2006, concluding that
Counts I, II, IV, and V failed to state a claim upon which relief
could be granted and that the defendants were entitled to qualified
immunity as to Count III (the Fourth Amendment claim). The
district court then dismissed, without prejudice, the state-law
claims, Counts VI, VII, and VIII.
Appellants timely noted an appeal on January 12, 2007, and we
possess jurisdiction pursuant to 28 U.S.C.A. § 1291 (West 2006).
II.
On appeal, Appellants contend that the district court erred in
dismissing Counts I, II, IV, and V and in granting Appellees
qualified immunity on Count III. We address each of these
arguments in turn.
12
A. Standard of Review
The district court dismissed the complaint for failure to
state a claim under Rule 12(b)(6). We review the district court’s
decision de novo. Bominflot, Inc. v. The M/V Henrich S, 465 F.3d
144, 145 (4th Cir. 2006). “[A] Rule 12(b)(6) motion should only be
granted if, after accepting all well-pleaded allegations in the
plaintiff’s complaint as true and drawing all reasonable factual
inferences from those facts in the plaintiff’s favor, it appears
certain that the plaintiff cannot prove any set of facts in support
of his claim entitling him to relief.” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Additionally, a
complaint must be dismissed if it does not allege “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (emphasis added).
As the Twombly Court explained, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. at 1964-65.
Accordingly, in that case, the Court upheld the dismissal of a
complaint where the plaintiffs failed to “nudge[] their claims
across the line from conceivable to plausible.” Id. at 1974.
B. Fourteenth Amendment Substantive Due Process Claim
Appellants first argue on appeal that the Appellees violated
their substantive due process rights by depriving them of their
13
constitutionally protected rights in the continued ownership and
operation of RNR, its Virginia ABC license, and its conditional-use
permit.
The Fourteenth Amendment’s due process clause contains both a
procedural and substantive component. To state a claim for
violation of substantive due process, a claimant must allege: “(1)
that they had property or a property interest; (2) that the state
deprived them of this property or property interest; and (3) that
the state’s action falls so far beyond the outer limits of
legitimate governmental action that no process could cure the
deficiency.” Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 827
(4th Cir. 1995); see also Love v. Pepersack, 47 F.3d 120, 122 (4th
Cir. 1995) (“Substantive due process is a far narrower concept than
procedural; it is an absolute check on certain governmental actions
notwithstanding the fairness of the procedures used to implement
them.” (internal quotation marks omitted)). The protections of
substantive due process “‘run only to state action which is so
arbitrary and irrational, so unjustified by any circumstance or
governmental interest, as to be literally incapable of avoidance by
any pre-deprivation procedural protections or of adequate
rectification by any post-deprivation state remedies.’” Id.(quoting Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir.
1991)). “Irrationality and arbitrariness imply a most stringent
14
standard against which state action is to be measured in assessing
a substantive due process claim.” Rucker, 946 F.2d at 281.
In the complaint, Appellants allege that they have property
interests in: (1) the ownership and operation of RNR; (2) RNR’s
Virginia ABC license; and (3) RNR’s conditional-use permit from
Manassas Park City. The complaint further alleges that the named
defendants deprived Appellants of these property interests through
a vindictive campaign culminating in the fabrication of evidence at
hearings regarding RNR’s ABC license and conditional-use permit.
The district court dismissed this claim, concluding that Appellants
had no property interest in the conditional-use permit, and that
they had adequate state remedies regarding the removal of the ABC
license, i.e., the Appellants could (and did) appeal that
deprivation under Va. Code Ann. § 4.1-227 (1999 & Supp. 2007).
Appellants admittedly have a property interest in both the ABC
license and the conditional-use permit.2 The alleged actions here,
however, do not fall “so far outside” the realm of normal
governmental behavior that there is no “adequate rectification by
2
The district court found that Ruttenberg did not have a
property interest in the conditional-use permit, but subsequent to
its ruling, the Circuit Court of Prince William County ruled that
Ruttenberg does have a property interest in that permit. Property
interests “are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such
as state law-rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits,” Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972), so we
are bound to conclude that Ruttenberg does have a protectable
property right in his conditional-use permit.
15
any post-deprivation state remedies.” Sylvia Dev. Corp., 48 F.3d
at 827 (internal quotation marks omitted). Indeed, pursuant to Va.
Code Ann. § 2.2-4027 (2005 & Supp. 2007), Appellants are entitled
to judicial review of the revocation of both the conditional-use
permit and his ABC license. The complaint makes no allegation
regarding the inadequacy of this judicial review, and Appellants
simply argue before us that the remedy is “nothing more than a
deferential appellate review by the state court.” (Appellant’s Br.
at 34.) Appellants identify no caselaw, however, holding that
judicial review that applies a deferential standard of review does
not constitute an adequate post-deprivation remedy.
Moreover, the existence of established state procedures
available to RNR before revocation of its ABC license and
conditional-use permit “belies the existence of a substantive due
process claim” as it relates to Appellants’ claimed right to
ownership and operation of RNR. Sylvia Dev. Corp., 48 F.3d at 829.
At the state administrative hearings, Appellants had the
opportunity to challenge the evidence against them--the same
challenges they present before us. In their substantive due
process claim, Appellants essentially ask us to reweigh the
credibility determinations made by the state administrative bodies.
We decline to do so, and therefore affirm the dismissal of the
substantive due process claim.
C. First Amendment Claim
16
Appellants next contend that the district court erred in
dismissing their claim that the Appellees violated their First
Amendment rights by retaliating against Ruttenberg for exercising
his right to free speech.
“The First Amendment right to free speech includes not only
the affirmative right to speak, but also the right to be free from
retaliation by a public official for the exercise of that right.”
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000).
Of course, “not every reaction made in response to an individual’s
exercise of his First Amendment right to free speech is actionable
retaliation.” Id. Thus, to prevail on a retaliation claim under
42 U.S.C.A. § 1983 (West 2003), Appellants’ allegations must
satisfy a three-prong test. “First, [Appellants] must demonstrate
that [their] speech was protected.” Id. at 686. “Second,
[Appellants] must demonstrate that the defendant’s alleged
retaliatory action adversely affected [their] constitutionally
protected speech.” Id. Finally, the Appellants “must demonstrate
that a causal relationship exists between its speech and the
defendant’s retaliatory action.” Id.In their complaint, the Appellants allege that Ruttenberg
complained about Detective L to his supervisor, Officer Berry, and
that Officer Berry cancelled a ride-along that Detective L had
scheduled with his girlfriend. Appellants allege that Detective L
retaliated by conducting a multi-year vendetta against Ruttenberg,
17
culminating in the June 2, 2004 raid at RNR. The district court
dismissed this claim because Appellants “fail[ed] to allege any
adverse impact on their First Amendment rights.” (J.A. at 188.)
Although we disagree with the district court’s analysis of this
issue, we nonetheless affirm. See Catawba Indian Tribe of S.C. v.
City of Rock Hill, 501 F.3d 368, 372 n.4 (4th Cir. 2007)
(explaining that because we “review judgments, not opinions,” we
are “entitled to affirm the district court on any ground that would
support the judgment in favor of the party prevailing below”).
In reviewing the complaint, we agree with the Appellants that
it alleges facts sufficient to establish two of the elements
necessary to state a First Amendment retaliation claim. Clearly
Ruttenberg’s speech was on a matter of public concern and thus
protected. As to the second requirement, we disagree with the
district court’s conclusion that Appellants “fail[ed] to allege any
adverse impact on their First Amendment rights.” (J.A. at 188.)
The test is not whether Appellants’ First Amendment rights were
chilled, but whether a person of reasonable firmness in Appellants’
situation would have been chilled. “[W]e undertake an objective
inquiry into whether a similarly situated person of ordinary
firmness reasonably would be chilled by the government conduct in
light of the circumstances presented in the particular case.”
Blankenship v. Manchin, 471 F.3d 523, 530 (4th Cir. 2006) (internal
quotation marks omitted). In so doing, we must “focus on the
18
status of the speaker, the relationship between the speaker and the
retaliator, and the nature of the retaliatory acts.” Id. at 531(internal quotation marks omitted). Here, given the allegations in
the complaint, a reasonable person in Appellants’ situation would
have been chilled by the alleged retaliatory conduct. As we
explained in Blankenship, a chill is likely when the state actor
has “‘engaged the punitive machinery of the government in order to
punish’” an individual for speaking out. Blankenship, 471 F.3d at
531 (quoting Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.
2003)).
We conclude, however, that Appellants have failed to establish
a causal relationship between their speech and the retaliatory
action. “The causation requirement is rigorous; it is not enough
that the protected expression played a role or was a motivating
factor in the retaliation.” Huang v. Bd. of Governors of the Univ.
of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990). Appellants must show
that “but for” the protected speech, the alleged retaliatory
conduct would not have occurred. Id. Even under a favorable
reading of the complaint, it is clear that Detective L’s vindictive
actions began prior to any complaints raised by Ruttenberg to the
detective’s superiors. Indeed, the complaint alleges that
Ruttenberg knew he was under investigation for cocaine use and
distribution before he lodged any complaints to the police. As
such, Appellants cannot meet the “rigorous” causation requirement
19
of showing that the alleged retaliatory conduct would not have
occurred “but for” his complaints about Detective L. We therefore
affirm the dismissal of the First Amendment claim.
D. Fourteenth Amendment Equal Protection Claim
The Appellants next argue that the district court erred in
concluding that they had failed to plead a “class of one” equal
protection claim. “The purpose of the equal protection clause of
the Fourteenth Amendment is to secure every person within the
State’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by express terms of a statute or
by its improper execution through duly constituted agents.” Vill.
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal
quotation marks and alteration omitted). In recognition of this
guarantee, “the Supreme Court has recognized the validity of ‘class
of one’ Equal Protection claims, ‘where the plaintiff alleges that
she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.’” Willis v. Town of Marshall, 426 F.3d
251, 263 (4th Cir. 2005) (quoting Olech, 528 U.S. at 564).
The complaint alleges that Mayor Jones, Chief Evans, Detective
L, and Detective W “selectively enforced the ABC laws and narcotics
laws” in violation of Appellants’ equal protection rights. (J.A.
at 86.) The district court dismissed this claim because the
“conclusory allegations” were “plainly insufficient” and “d[id] not
20
allege the existence of any similarly situated persons, nor . . .
that [Appellants] were treated differently from any such persons.”
(J.A. at 193.)
As the district court correctly stated, the complaint fails to
allege the existence of similarly situated individuals. In
addition, the complaint fails to allege that the disparate
treatment lacked a rational basis. See Giarratano v. Johnson, 521
F.3d 298 (4th Cir. 2008) (affirming the dismissal of a complaint
that failed to adequately allege the absence of a rational basis
supporting the plaintiff’s disparate treatment). Thus, it fails to
state a claim under Rule 12(b)(6), and we affirm the district
court’s dismissal of this count.
E. Section 1983 Conspiracy Claim
We now turn to Appellants’ claim that they adequately pleaded
a conspiracy claim under § 1983. Section 1983 includes protection
against conspiracies to violate civil rights. “To establish a
civil conspiracy under § 1983, Appellants must present evidence
that the Appellees acted jointly in concert and that some overt act
was done in furtherance of the conspiracy which resulted in
Appellants’ deprivation of a constitutional right.” Hinkle v. City
of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). Appellants
alleged in their complaint that the Appellees conspired to violate
their substantive due process, equal protection, First Amendment,
and Fourth Amendment rights. The district court dismissed this
21
claim because (1) it dismissed the underlying claims and (2)
Appellants “fail[ed] to allege any facts demonstrating an agreement
amongst the alleged co-conspirators.” (J.A. at 194.)
Although we do not dismiss all of the underlying claims, we
believe the district court correctly dismissed this count as well.
Under Twombly, Appellants were required to allege “enough facts to
state a claim to relief that is plausible on its face.” Twombly,
127 S. Ct. at 1974. This requires a “plausible suggestion of
conspiracy,” Twombly, 127 S. Ct. at 1971, and Appellants needed to
plead facts that would “reasonably lead to the inference that
Appellees positively or tacitly came to a mutual understanding to
try to accomplish a common and unlawful plan,” Hinkle, 81 F.3d at
421. The complaint makes the bare, conclusory allegation that the
defendants conspired to violate his constitutional rights and that
the conspiracy culminated in the fabricated testimony. No common
purpose is alleged and nothing beyond conclusory allegations of
conspiracy are made. We therefore affirm the dismissal of the §
1983 conspiracy claim.
F. The Fourth Amendment Claim
Appellants next contend that the district court erred when it
dismissed Count III of their complaint on qualified immunity
grounds. Count III alleges that the defendants deprived plaintiffs
of their Fourth Amendment rights in violation of 42 U.S.C.A. §
1983. Specifically, Appellants assert that ABC agents and local
22
law enforcement officers conducted an unreasonable search of RNR on
June 2, 2004 and, in doing so, contravened Appellants’ clearly
established constitutional rights. Although the district court
expressed doubt about whether a constitutional violation occurred,
it did not expressly resolve that issue. Ruttenberg, 464 F. Supp.
2d at 549-50. Instead, the district court held that “assuming,
without deciding,” there was a constitutional violation, the
defendants were nonetheless entitled to qualified immunity. Id. at
550.
We first note that the district court erred in its approach
under Saucier v. Katz, 533 U.S. 194 (2001). Before moving to a
qualified immunity analysis, the district court should have
determined whether or not there was a constitutional violation.
This is the clear dictate of Saucier’s two-step process. See
Saucier, 533 U.S. at 201 (describing the “threshold question” as
whether “the facts alleged show the officer’s conduct violated a
constitutional right”); see also Miller v. Prince George’s County,
Md., 475 F.3d 621, 626-27 (4th Cir. 2007).
Accordingly, in reviewing the decision to dismiss Count III,
we must initially determine, based on the facts alleged, whether
there was a constitutional violation in connection with the search
of RNR. If there was no violation, we obviously need not inquire
into whether qualified immunity was appropriate. See Abney v. Coe,
493 F.3d 412, 415 (4th Cir. 2007). If a constitutional right was
23
violated, however, we must then examine “whether the right was
clearly established.” Saucier, 533 U.S. at 201.
With respect to the threshold inquiry, Appellants make three
claims as to why the search ran afoul of the Fourth Amendment. We
discuss each in turn.
1.
Appellants first argue that the administrative search of RNR
violated the Fourth Amendment because it was a pretext for a purely
criminal investigation.
In September 1993, RNR obtained a license to sell beer on its
premises. As a licensee, RNR consented to allowing the Virginia
ABC Board and its agents “free access” to “examin[e] and inspect[]”
its premises for the purpose of ensuring compliance with ABC
regulations. See 3 Va. Admin. Code § 5-50-70(B). It is well-
settled that such regulatory inspections do not need to be
accompanied by probable cause or a search warrant. See New York v.
Burger, 482 U.S. 691, 700-02 (1987) (holding that warrantless,
administrative searches of “closely regulated businesses” are
permissible under the Fourth Amendment); Colonnade Catering Corp.
v. United States, 397 U.S. 72, 77 (1970) (noting that the liquor
industry has long been “subject to close supervision and
inspection”). This is because licensees like RNR enjoy a
“particularly attenuated” expectation of privacy. See Burger, 482
U.S. at 700.
24
Although administrative searches are a recognized exception to
the traditional warrant requirement, they cannot be used as a
pretext for what is, in reality, a purely criminal investigation.
See Burger, 482 at 716 n.27. Otherwise, such inspections could
serve as a convenient circumvention of the normal strictures placed
on law enforcement officers. Accordingly, our sister circuits have
held that an administrative search should be considered a pretext,
and thus deemed impermissible, if the inspection was performed
“solely to gather evidence of criminal activity.” See, e.g.,
United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993); Bruce
v. Beary, 498 F.3d 1232, 1239-40 (11th Cir. 2007) (quoting
Johnson); see also City of Indianapolis v. Edmond, 531 U.S. 32, 37-
38 (2000) (indicating that a warrant is required if “the primary
purpose [of the search] was to detect evidence of ordinary criminal
wrongdoing”).
At the same time, however, a regulatory inspection does not
contravene the Fourth Amendment simply “because it is accompanied
by some suspicion of wrongdoing.” Bruce, 498 F.3d at 1242(emphasis omitted); United States v. Thomas, 973 F.2d 1152, 1155-56
(5th Cir. 1992); United States v. Nechy, 827 F.2d 1161, 1166-67
(7th Cir. 1987); see also United States v. Villamonte-Marquez, 462
U.S. 579, 584 n.3 (1983). Rather, as the Tenth Circuit recently
explained, “an administrative inspection may encompass both an
administrative and a criminal law enforcement purpose.” United
25
States v. Johnson, 408 F.3d 1313, 1323 (10th Cir. 2005); see also
Bruce, 498 F.3d at 1250-53 (Carnes, J., concurring) (collecting
cases). It is only when the search is so divorced from a
regulatory purpose that it cannot be considered administrative in
nature that the Fourth Amendment is transgressed.
Based on the facts alleged in the complaint, we do not believe
the administrative search of RNR was “employed solely as an
instrument of criminal law enforcement.” Johnson, 994 F.2d at 743.
Rather, the record indicates that the search served primarily, if
not entirely, a regulatory purpose.
To begin, as Appellants acknowledge in their complaint, local
police officers observed ABC violations at RNR prior to the
administrative inspection in June 2004. This was clearly
permissible under Virginia’s ABC laws, which allow “law-enforcement
officers . . . free access to any retail licensed establishment for
the purpose of observation.” See 3 Va. Admin. Code § 5-50-70(C).
The officers subsequently contacted ABC Special Agent John Loftis,
the ABC official with authority over the territory that included
RNR, about conducting an administrative inspection. Special Agent
Loftis, as well as five or six additional ABC officials, then
joined local law enforcement officers in the search of RNR.
With respect to the search itself, there is no evidence or
allegation that law enforcement officers or ABC officials searched
for anything other than ABC violations when conducting the
26
administrative inspection. In fact, Appellants admit that the ABC
officers found an ABC violation during their search -- the failure
of RNR to mark two bottles of beer as samples –- and confiscated
two bottles of vodka as contraband from Ruttenberg’s office.
Moreover, as Appellants state in their complaint, the Virginia ABC
Board brought several administrative charges against RNR after the
raid. These charges eventually led to the ABC revoking RNR’s beer
license.
Thus, it is undisputed that ABC officials participated in the
search, an ABC violation was discovered during the search,
administrative charges were brought as a result of the search, and
those charges eventually led to the revocation of RNR’s beer
license. Moreover, there is no allegation that the search was for
anything other than ABC violations. Consequently, any claim that
the inspection was performed “solely to gather evidence of criminal
activity,” Johnson, 994 F.2d at 742, surely “stops short of the
line between possibility and plausibility,” Twombly, 127 S. Ct. at
1966.
Amicus curiae counters with the case of Swint v. City of
Wadley, Ala., 51 F.3d 988 (11th Cir. 1995). However, the facts
alleged here are clearly distinguishable from those in Swint. In
that case, the Eleventh Circuit found an administrative search to
be a pretext in part because “the officers did not simply search
for violations of the liquor laws by the establishment; instead, a
27
number of people were searched for evidence of their violation of
drug laws, searches to which they did not consent as part of any
regulatory scheme.” Id. at 999. Unlike the plaintiffs in Swint,
Appellants do not allege that the officers conducting the
inspection in this case searched for anything other than ABC
violations. Instead, they allege that the search was motivated by
“personal animus between defendant L and David Ruttenberg.” (J.A.
at 78.) However, such an assertion -- its speculative nature aside
-- is not relevant to our pretext analysis. See Crosby v. Paulk,
187 F.3d 1339, 1344 (11th Cir. 1999) (noting that because “[s]tate
officials can act lawfully even when motivated by a dislike or
hostility,” the court did not need to “address the alleged ill will
between” the officers and the plaintiff (internal quotations
omitted)); Johnson, 408 F.3d at 1323 (“Where officers are engaged
in a proper administrative search, the officers’ motive is
irrelevant.”).
In sum, based on the facts as alleged in the complaint, we
believe the search was not pretextual but rather a proper exercise
of the state and local governments’ legitimate interest in
investigating possible ABC violations. We therefore find no
constitutional violation with respect to this claim.
2.
Appellants next argue that even if the inspection was lawfully
authorized, the officers conducting the search exceeded the scope
28
of their statutory authority. Specifically, Appellants contend
that the officers unlawfully entered and searched David
Ruttenberg’s private office, thereby violating his Fourth Amendment
rights. Because the office was subject to inspection under the
authorizing statute, we find no such violation.
Section 5-50-70(B) of Virginia’s Administrative Code states
that the ABC “board and its special agents shall be allowed free
access during reasonable hours to every place in the Commonwealth
where alcoholic beverages are manufactured, bottled, stored,
offered for sale or sold, for the purpose of examining and
inspecting such place.” 3 Va. Admin. Code § 5-50-70(B) (emphasis
added).3 Virginia’s Alcoholic Beverage Control Act defines “place”
as “the real estate, together with any buildings or other
improvements thereon, designated in the application for a license
as the place at which the manufacture, bottling, distribution, use
or sale of alcoholic beverages shall be performed, except that
portion of any such building or other improvement actually and
exclusively used as a private residence.” Va. Code Ann. § 4.1-100(2007). Taken together, these provisions cast a wide net.
Despite the authorization’s evident breadth, Appellants
contend that the search of Ruttenberg’s office was not permitted
3
As noted above, § 5-50-70(C) provides that “[i]n addition to
special agents, other law-enforcement officers in the performance
of their official duties shall be allowed free access to any retail
licensed establishment for the purpose of observation of activities
on those licensed premises during reasonable hours.” 3 Va. Admin.
Code § 5-50-70(C) (2007).
29
under § 5-50-70(B) because alcoholic beverages were not
“manufactured, bottled, stored, offered for sale or sold” in the
office itself. We reject such a narrow reading of the governing
statute.
As noted above, ABC officials may inspect any part of the
licensed premises –- that is, “the real estate, together with any
buildings or other improvements thereon” -- except those areas
“actually and exclusively used as a private residence.” See Va.
Code Ann. § 4.1-100. The district court found that Ruttenberg’s
“office is located on the premises of RNR.” Ruttenberg, 464 F.
Supp. 2d at 549. Furthermore, Appellants do not suggest that the
office was utilized as a private residence. Therefore, because the
office is part of the RNR premises and does not fall within the
statute’s lone exception (use as a private residence), we hold that
§ 5-50-70(B) authorized the ABC officials to search Ruttenberg’s
office as part of their administrative inspection.
Our holding is buttressed by an additional consideration: if
so-called “private offices” located on the premises of liquor
establishments were immune from administrative inspection, ABC
licensees such as Ruttenberg and RNR could utilize such spaces as
sanctuaries for illegal activity. In fact, during the inspection
at issue here, ABC officials confiscated two bottles of contraband
alcohol that were improperly stored in Ruttenberg’s office. If the
scope of § 5-50-70(B)’s authorization was as narrowly confined as
30
Appellants wish, ABC infractions would likely multiply in number
since they could easily be hidden from an ABC agent’s purview.
This would plainly run contrary to the broad inspection authority
granted to ABC officials under the Virginia statute.
3.
Lastly, Appellants claim that the administrative search of RNR
violated the Fourth Amendment because it was unreasonably executed.
Specifically, Appellants contend that the number of police officers
who participated in the search, as well as the conduct of the
officers during the inspection, was unreasonably excessive and,
therefore, constitutionally problematic.
As with any Fourth Amendment inquiry, the touchstone here is
reasonableness. Indeed, even when a search is lawfully authorized,
“the manner in which [the search] is executed is subject to later
judicial review as to its reasonableness.” Dalia v. United States,
441 U.S. 238, 258 (1979); Bruce, 498 F.3d at 1244 (holding that the
“execution of an administrative inspection must be reasonable in
order to be constitutional”); see also Duncan v. Barnes, 592 F.2d
1336, 1338 (5th Cir. 1979). Thus, while officers must be afforded
significant latitude in how they choose to execute a search, their
conduct must likewise “remain[] within the boundaries of
reasonableness.” Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir.
1997) (citing Dalia, 441 U.S. at 257); Tarpley v. Greene, 684 F.2d
1, 8-9 (D.C. Cir. 1982). When determining whether a search was
31
executed in a reasonable manner, courts must consider the totality
of the circumstances. This, of course, is a “highly fact-dependent
inquiry.” Lawmaster, 125 F.3d at 1349 (citing Tarpley, 684 F.2d at
9).
In their complaint, Appellants allege that over fifty law
enforcement officers, including six or seven ABC agents,
participated in a search of RNR that lasted more than an hour.
According to Appellants, many of the officers were heavily armed
SWAT team members dressed in full tactical gear. Appellants also
claim that RNR patrons and employees were ordered “against the wall
to be searched by heavily armed officers,” (J.A. at 85), causing
them to be “detained and terrorized,” (J.A. at 76). Finally,
Appellants allege -- in their briefs, but not their complaint --
that these patrons and employees were held at gunpoint for over an
hour.
Based on these allegations, we conclude that Appellants have
pleaded sufficient facts to survive a motion to dismiss. At this
stage of the proceedings, we simply do not know enough about the
circumstances surrounding the search and its execution to determine
whether the inspection was reasonably conducted and, if not,
whether qualified immunity is appropriate. Accordingly, we reverse
the grant of qualified immunity in favor of Detective L, Detective
W, Chief Evans, and Kifer on Appellants’ Fourth Amendment claim and
remand the case for further proceedings.
32
4.
While we of course leave the conduct of such proceedings to
the district court, the boundaries of the inquiry upon remand are
worth mention.
As noted above, the inquiry here is one of reasonableness.
Thus, the guiding standard “is whether, under the circumstances
confronting the officers and disregarding their intent or
motivation, their conduct was objectively reasonable.” Crosby, 187
F.3d at 1351 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)).
Because context matters when making such a determination, per se
rules are seldom appropriate.
For example, the number of officers present for the search,
while undoubtedly relevant, is not by itself dispositive.
Depending on the circumstances, it may be eminently reasonable for
fifty (or more) police officers to participate in the search of a
liquor establishment. See McNair v. Coffey, 279 F.3d 463, 466 (7th
Cir. 2002) (remarking that “nothing in the fourth amendment
specifies how many officers may respond to a call”). The number
may be gross overkill or it may be necessary to ensure the safety
of inspectors and patrons alike. Whatever the case, the number of
officers is but one consideration among many, and it certainly does
not on its face render the search unreasonable.
Ordering patrons and employees against a wall during the
search is likewise not per se unreasonable, as Appellants appear to
33
suggest. The Supreme Court has repeatedly made clear that
officers, when executing a search, “may take reasonable action to
secure the premises and to ensure their own safety and the efficacy
of the search.” Los Angeles County, Cal. v. Rettele, 550 U.S. ___,
127 S. Ct. 1989, 1992 (2007) (citing Muehler v. Mena, 544 U.S. 93,
98-100 (2005)). It is for this reason that the Supreme Court has
underscored that officers may “detain the occupants of the premises
while a proper search is conducted.” Michigan v. Summers, 452 U.S.
692, 705 (1981). Such detentions, the Court has noted, are
appropriate “because the character of the additional intrusion
caused by detention is slight and because the justifications for
detention are substantial.” Muehler, 544 U.S. at 98 (citing
Summers, 452 U.S. at 701-05).
Rather than resort to per se rules, courts must consider all
of the relevant circumstances surrounding the search. Thus, in
addition to the facts discussed above, the district court should
take into account, among other things, the following factors: the
nature of the place searched, the number of people the officers
expected to encounter, Crosby, 187 F.3d at 1343 n.4, the likelihood
that the officers “would be met with resistance or defiance,”
Bruce, 498 F.3d at 1245, and whether the search was unduly
prolonged. The court should also consider the specific conduct of
the officers involved, particularly whether they engaged in any
34
unreasonably threatening behavior, such as an abuse of weapons or
the causing of physical harm.
At the same time, however, it must be remembered that it is
not a court’s “role to tell local governments how to conduct an
administrative search.” Crosby, 187 F.3d at 1348. So long as the
officers behaved reasonably, the discretion about how to best
perform the inspection is theirs and theirs alone. The very term
“reasonableness” implies reasonable latitude and room for judgment.
And when officers “act in a reasonable manner to protect themselves
from harm . . . the Fourth Amendment is not violated.” See
Rettele, 127 S. Ct. at 1993-94.
We find three decisions by the Eleventh Circuit to be
instructive in determining whether, based on the totality of the
circumstances, an administrative search was unreasonably excessive.
In the first pair of cases -- Swint and Bruce -- the court found
administrative inspections to be “unreasonably excessive in
execution” and, therefore, in violation of the Fourth Amendment.
Bruce, 498 F.3d at 1244.
In Swint, the court found two searches of a nightclub to be
unreasonable based on the following facts: the raids involved 30-40
officers, including eight SWAT team officers; the inspections
lasted approximately one and one-half hours; during the search,
officers pointed their weapons at club employees and patrons; the
police grabbed and shoved one person against a wall and pushed
35
another patron off a bar stool; threatening comments, such as “Shut
up, or I’ll shut you up myself,” were made by officers to persons
detained; and an officer, with his finger on the trigger, pointed
a shotgun in someone’s face. See Swint, 51 F.3d at 992-93.
According to the Eleventh Circuit, such a “massive show of force
and excessive intrusion” could not be justified as a reasonable
part of the administrative search. Id. at 999.
Similarly, the court in Bruce found the administrative search
of an auto body shop to be unreasonably conducted. Bruce, 498 F.3d
at 1243-44. The search there involved twenty law enforcement
officers and lasted over eight hours. In addition, officers
arrived in unmarked vehicles and surrounded the property to block
the exits. They entered the premises with “automatic shotguns and
sidearms drawn.” Notably, one officer stuck a shotgun into an
employee’s back and continued to point it at him after the employee
turned around. Other employees were “lined up along a fence and
patted down and deprived of their identification.” See id. at
1236, 1244-45. As a result, the court found that the “massive show
of force in this case, like that in Swint, is not the sort of
conduct that was approved by the Supreme Court in Burger.” Id. at
1245 (internal quotation marks omitted).
While Swint and Bruce are examples of unreasonable searches,
the case of Crosby v. Paulk, 187 F.3d 1339 (11th Cir. 1999),
involves a search that was reasonably executed. In Crosby, forty
36
law enforcement officers searched a pair of adjoining nightclubs
for two hours. Notably, the officers “expected to encounter 500 to
700 patrons at the two nightclubs,” including many who would be
consuming alcohol. Id. at 1343 n.4, 1348. Upon entering, the
officers “ordered the patrons to remain where they were, and
instructed people on the dance floor to sit on the floor and not to
return to their tables.” Id. at 1343 n.5. The court found “no
evidence that any officer involved in securing the nightclubs and
conducting the investigation drew a weapon or threatened the
arrestees or any patrons.” Id. at 1343. Based on these facts, the
court found no “violation of a constitutional right in this
context.” Id. at 1352 (emphasis omitted).
It should be clear from the foregoing that any decision as to
reasonableness rests on the particular circumstances of a case.
Although we conclude that Appellants’ complaint survives a motion
to dismiss, we note that further factual development may show that
no constitutional violation occurred.
And if, after further factual development, the district court
determines that there was a constitutional violation with respect
to the search’s execution, it still must perform the second inquiry
under Saucier: whether the right violated was clearly established.
Saucier, 533 U.S. at 201. Of course, as we made clear in Turner v.
Dammon, 848 F.2d 440 (4th Cir. 1988), “[t]here is no question that
the Fourth Amendment prohibition of unreasonable searches and
37
seizures applies to the performance of administrative searches of
commercial property.” Id. at 446. Admittedly, “[t]he burden on
law enforcement officials in conforming their conduct to Fourth
Amendment standards is not great in the area of traditionally
regulated industries,” but it is a burden nonetheless. Id. at 447.
However, as the Supreme Court emphasized in Saucier, this does
not end the qualified immunity analysis. Rather, the inquiry “must
be undertaken in light of the specific context of the case, not as
a broad general proposition.” Saucier, 533 U.S. at 201 (emphasis
added). To be clear, this does not mean that a constitutional
right is clearly established only if the facts of a previous case
mirror in all respects those of the present case. See Robles v.
Prince George’s County, 302 F.3d 262, 270 (4th Cir. 2002)
(“Although notice does not require that the very action in question
has previously been held unlawful, it does mean that in light of
pre-existing law the unlawfulness must be apparent.” (internal
quotation marks omitted)); see also Simeon v. T. Smith & Son, Inc.,
852 F.2d 1421, 1453 (5th Cir. 1988) (explaining that courts should
not confine a previous case to its facts so that a rule would only
apply “to redheaded Walpoles in pale magenta Buick cars”) (quoting
Karl N. Llewellyn). Instead, the proper question to ask is
“whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Id. at 202 (citing
Wilson v. Layne, 526 U.S. 603, 615 (1999)). This ensures that
38
government officials performing discretionary functions are
shielded from civil liability insofar as their conduct, even if
mistaken, “could reasonably have been thought consistent with the
rights they are alleged to have violated.” Anderson v. Creighton,
483 U.S. 635, 638 (1987) (citing Malley v. Briggs, 475 U.S. 335,
341 (1986)); Saucier, 533 U.S. at 205. Whether the case may be
resolved on summary judgment is, of course, not possible to
determine at this time.
5.
In sum, we find that the administrative inspection of RNR was
not pretextual and that the search of David Ruttenberg’s private
office was lawfully authorized by the governing statute. With
respect to the search’s execution, we reverse the district court’s
dismissal of Count III on qualified immunity and remand this matter
to the district court for further proceedings.
III.
For the foregoing reasons, we affirm the dismissal of Counts
I, II, IV, and V of Appellants’ complaint and reverse the dismissal
of Count III.4
4
The district court dismissed without prejudice Appellants’
state law claims because no federal claims remained. See Shanaghan
v. Cahill, 58 F.3d 106, 109 (4th Cir. 1995) (“The doctrine of
supplemental jurisdiction indicates that federal courts generally
have discretion to retain or dismiss state law claims when the
federal basis for an action drops away.”) Because we are remanding
the Fourth Amendment claim for further consideration, we also
39
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
reverse the district court’s dismissal of the state law claims so
that it may again consider its supplemental jurisdiction over those
claims.
40