Club Retro LLC v. Hilton ( 2009 )

  •                         REVISED JUNE 5, 2009
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                        Fifth Circuit
                                                                     May 6, 2009
                                     No. 08-30512
                                                                Charles R. Fulbruge III
    CLUB RETRO LLC; LYLE K DOUBLET, Individually and as Manager, on
    behalf of Club Retro LLC; ERICA L DOUBLET Individually and on behalf of
    Olivia Lynn Marie Doublet; DAR J DOUBLET; CHRISTINE A SMITH,
    Individually and on behalf of Carley A Smith; RONNIE M MABOU;
                                               Plaintiffs - Appellees
    WILLIAM EARL HILTON, Individually and in His Official Capacity as
    Sheriff of Rapides Parish; MICHAEL SLOCUM, Individually and In His
    Official Capacity as a Deputy Sheriff of Rapides Parish; RICKY DOYLE,
    Individually and in His Official Capacity as a Deputy Sheriff of Rapides
    Parish; MICHAEL LACOUR, Individually and in His Official Capacity as a
    Deputy Sheriff of Rapides Parish; JAMES RAULS, Individually and In His
    Official Capacity as a Deputy Sheriff of Rapides Parish
                                               Defendants - Appellants
                    Appeal from the United States District Court
                       for the Western District of Louisiana
    Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
    KING, Circuit Judge:
          Defendants, the Sheriff of Rapides Parish and four deputy sheriffs, appeal
    the district court’s denial of qualified immunity for their involvement in
    “Operation Retro-Fit,” a preplanned, violent S.W.A.T. team raid of a nightclub,
                                       No. 08-30512
    Club Retro, on February 5, 2006. As a result of events that occurred during that
    raid, plaintiffs, owners and select employees of Club Retro, bring 42
    U.S.C. § 1983 and state law claims against those five officers in their individual
    and official capacities. Relevant to this appeal, they allege that defendants’
    planning, approving, and executing Operation Retro-Fit violated their First,
    Fourth, Fifth, and Fourteenth Amendment rights. Defendants moved to dismiss
    the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
    asserting, inter alia, qualified immunity as an affirmative defense to the
    individual-capacity claims. The district court rejected the defense of qualified
    immunity for all but a few of plaintiffs’ claims. It, however, granted qualified
    immunity for plaintiffs’ due process claims, which it dismissed without prejudice.
    Defendants bring this interlocutory appeal challenging the district court’s
    denials of qualified immunity and decision to dismiss the due process claims
    without prejudice. For the following reasons, we affirm the district court’s order
    in part, reverse in part, and remand.
    A. Procedural History
          A year after enduring the raid on Club Retro, plaintiffs Club Retro, L.L.C.;
    Lyle K. Doublet; Dar J. Doublet; Erica L. Doublet, individually and on behalf of
    her minor daughter, Olivia Lynn Marie Doublet; Christine A. Smith,
    individually and on behalf of her minor daughter, Carley A. Smith; Jonathan K.
    Frost; and Ronnie M. Mabou filed a federal lawsuit. Their complaint alleged,
    inter alia, § 1983 claims of violations of their freedoms of expression, association,
    and assembly under the First Amendment, unlawful search and seizure and
    false arrest under the Fourth Amendment, and equal protection and due process
                                        No. 08-30512
    violations under the Fourteenth Amendment.1 They alleged these claims against
    defendants Rapides Parish Sheriff William Hilton and Rapides Parish deputy
    sheriffs Michael Slocum, Ricky Doyle, Michael LaCour, and James Rauls, acting
    in their individual and official capacities. Defendants immediately moved to
    dismiss the complaint under Rule 12(b)(6) on various grounds, including
    qualified immunity for the federal constitutional claims against them in their
    individual capacities. Plaintiffs responded to the motion to dismiss by filing a
    response and a motion to amend or correct their complaint. The court referred
    the motion to dismiss and motion to amend or correct the complaint to a
    magistrate judge. The magistrate judge granted plaintiffs’ motion to amend or
    correct their complaint. Plaintiffs filed a supplemental and amending complaint
    which amended parts of the complaint (collectively, the “amended complaint”),
    and defendants reasserted their motion to dismiss.
          The magistrate judge issued a report recommending that the district court
    grant in part and deny in part the motion to dismiss. It stated, inter alia, that
    the district court should reject the defense of qualified immunity (1) to all
    defendants for plaintiffs’ Fourth Amendment unreasonable search and seizure
    claims; (2) to deputy sheriffs Slocum and Doyle for Dar’s, Lyle’s, and Erica’s
    Fourth Amendment false arrest claims; and (3) to Sheriff Hilton and deputy
    sheriffs Slocum, LaCour, and Rauls for plaintiffs’ Fourteenth Amendment equal
    protection claims. On the other hand, the magistrate judge recommended
    dismissal of Club Retro’s, Lyle’s, and Dar’s First Amendment and plaintiffs’ due
    process claims based on qualified immunity. After the parties filed objections to
             The complaint also alleged, inter alia, false arrest, defamation, and business
    interference in violation of state laws.
                                      No. 08-30512
    the report and recommendation, the district court entered judgment, adopting
    most of the magistrate judge’s recommendations but—without substantial
    comment—refusing to dismiss the First Amendment claims. The district court
    dismissed without prejudice plaintiffs’ due process claims.
          Defendants filed a timely appeal. Because this case comes to us on appeal
    from the district court’s order denying defendants’ motion to dismiss, we
    consider the facts that plaintiffs set forth in their amended complaint.
    B. Factual Allegations
          Lyle and Dar Doublet were the owners of Club Retro, L.L.C., a business
    enterprise that owned and operated Club Retro, a nightclub located in
    Alexandria, Louisiana. Lyle managed Club Retro, L.L.C. Lyle and Dar are
    Creole, and Club Retro’s clientele was mixed-race. Before opening to the public
    in October 31, 2005, Club Retro passed various inspections and received permits
    to serve alcohol. As part of the inspection process, the state fire marshal set
    Club Retro’s capacity at 680 persons. Lyle and Dar also confirmed that they
    could permit persons under the age of twenty-one but over the age of eighteen
    in the club, so long as they did not serve them alcohol. While deputy sheriff
    Slocum and assistant district attorney Thomas B. Searcy stated that the matter
    was a “grey” area, Searcy received confirmation from District Attorney James
    C. Downs that it was permissible.
          On January 21 and 28, 2006, two Rapides Parish deputy sheriffs checked
    Club Retro to ensure that the doors were locked and closed at 2:00 a.m. On
    January 21, after Lyle and Dar protested, the officers left and promised to return
    with a copy of the applicable ordinance. A few days later, the Doublets visited
    the office of the Rapides Parish Sales and Use Tax Department where they
    confirmed that Club Retro could remain open after 2 a.m. on Sunday mornings
                                          No. 08-30512
    if they stopped selling and prevented patrons from consuming alcohol after 2
    a.m. The following weekend, despite the Doublets’ protestations, a deputy
    sheriff and his lieutenant ordered the club closed, and the Doublets complied
    with their order.
           On the night of Saturday, February 4, 2006, and into the early hours of
    Sunday, February 5, 2006, Club Retro hosted a number of popular hip hop
    artists. Club Retro hired private security guards to search all patrons entering
    the club.2 At approximately 12:15 a.m. Sunday morning, the club was crowded
    with approximately 500 patrons when persons waiting in line outside of the club
    crashed through the front door, pursued by forty Rapides Parish deputy
    sheriffs—some outfitted in full S.W.A.T. gear and black ski masks—who stormed
    Club Retro with shotguns, AR-15 assault rifles, and pistols drawn and pointed
    at both patrons and employees. At least one patron was injured in the chaos
    near the entranceway when a deputy sheriff “stomped” on her leg. Once inside
    the club, the officers forced many patrons to the ground at gunpoint, and the
    deputy sheriffs may have used tasers on club patrons.
           The deputy sheriffs were acting pursuant to Operation Retro-Fit, a plan
    authorized by Sheriff Hilton; written, supervised, and executed by deputy
    sheriffs Slocum, LaCour, and Rauls; and supervised and executed by deputy
    sheriff Doyle. The sheriffs memorialized Operation Retro-Fit in a written plan
    that plaintiffs have attached to their complaint.                The plan called for a
              A sign posted in the entranceway stated: “NO! Firearms, weapons, NO! loitering, NO!
    outside drinks, all persons subject to search!” Signs posted inside and near the bathrooms
            Anyone caught with drugs will be escorted off the premises & possible arrest!!!
            There will be a $50.00 reward for anyone turning in information leading up to
            the arrest of anyone affiliated with the possession, selling, or buying of any
            illegal substances @ Club Retro, L.L.C.
                                       No. 08-30512
    warrantless raid on Club Retro using a S.W.A.T. team for the purposes of
    detecting the sale or possession of illegal narcotics, the sale of alcohol to minors,
    and fire code violations. The deputy sheriffs would be assisted by officers from
    the Metro Narcotics Unit, a K-9 Unit, the Louisiana Department of Revenue
    Office of Alcohol and Tobacco Control, and Louisiana Probation and Parole.
            As soon as the raid began, the deputy sheriffs seized, assaulted, battered,
    and handcuffed Lyle and Dar, who were then transported to a warehouse
    holding facility and held for over six hours. Several hours later, Slocum had
    Judge John C. Davidson of the Ninth Judicial District Court for Rapides Parish
    sign arrest warrants against Lyle and Dar, based on affidavits sworn by LaCour.
    Although Judge Davidson initially refused because of the lack of probable cause
    on the night of the raid, he eventually relented and signed the warrants. The
    crime identified in both warrants was keeping Club Retro open past 2:00 a.m.
    on January 4, 2006, in violation of Louisiana Revised Statutes Annotated
    § 33:1236(6). The warrants additionally state that deputy sheriffs warned Lyle
    and Dar on January 27 and 28, 2006, that they were operating in violation of the
            Because of the scale and ferocity of the raid, many of Club Retro’s
    employees thought that they were being robbed by armed gunmen. A deputy
    sheriff hurled himself across the bar into the bartending area and pushed
    bartender Krista Frost to the ground with a gun pointed at her head. Jonathan
    Frost, another bartender, was chased, thrown to the ground, and stepped on by
    a deputy sheriff after Jonathan held up his hands to surrender. The deputy
           January 4, 2006 was a Wednesday; January 27, 2006 was a Friday; and January 28,
    2006 was a Saturday.
                                      No. 08-30512
    sheriff then pressed a 9mm pistol against Jonathan’s neck as he searched him.
    Another deputy sheriff forced Christine Smith, a manager of Club Retro, to the
    ground at gunpoint and searched her. When masked officers reached the stage,
    they slammed the performers to the ground or the wall. Matt Mabou, Club
    Retro’s disc jockey, looked up from his stereo equipment into the barrel of a gun.
    The deputy sheriff on the other end of the gun forced Mabou to turn the music
    off and the lights on and then searched him at gunpoint. The deputy sheriffs
    also rounded up Club Retro’s other staff members at gunpoint and searched and
    detained them. The deputy sheriffs handcuffed some of the staff, and one of the
    staff members was hit on the head with a rifle butt.
          The deputy sheriffs and other officers blocked all points of exit. They
    searched every patron and employee and required most patrons to walk by drug-
    sniffing dogs. As part of the search, some women were instructed to reach under
    their shirts, lift up their bras, and shake them so the deputy sheriffs could see
    if any illegal drugs would fall out. The deputy sheriffs separated patrons over
    twenty-one years of age from patrons between eighteen and twenty-one years of
    age. One-hundred-twenty-one patrons between the ages of eighteen and twenty-
    one were given citations for being in an alcohol-serving establishment. The
    parties dispute the lawfulness of those citations under Louisiana law. See
    infra n.24. At most seven patrons—approximately one percent of the total
    number of patrons—were arrested for drug-related crimes. The deputy sheriffs
    also announced to the patrons that they should never come back unless they
    wanted to risk another raid. They detained the patrons and employees between
    three and five hours and denied them access to the restrooms for a long period
    of time, during which some patrons urinated in empty bottles and one patron
                                        No. 08-30512
    fainted.     Eventually, deputy sheriffs permitted some persons to use the
    restrooms if escorted by an official.
            The deputy sheriffs proceeded to search the entire club, including the attic.
    Cash was confiscated from the registers. Mirrors, the cash registers, and the
    office areas were trashed. An armed officer kicked down the door to a separate,
    attached apartment that was protected by a security guard and not open to the
    public. Lyle and Erica resided in the apartment on nights when the club was
    open.      Inside the apartment were plaintiff Olivia Doublet, Erica’s minor
    daughter, and her two babysitters, one of whom was plaintiff Carley Smith,
    Christine’s minor daughter. The officer pinned Carley against the wall and then
    forcibly removed the three girls from the room. The deputy sheriffs brought the
    girls into the bar area, placed them on stools, and photographed them as if they
    were bar patrons. Olivia had been sleeping and was in her pajamas at the time.
    Erica and Christine attempted to reach their daughters, but the officers denied
    them access. Slocum and another unnamed deputy sheriff announced that both
    girls would be taken by the Louisiana Department of Social Services Office of
    Community Services (“OCS”). After Erica explained that the girls had been
    removed from the private apartment and Slocum realized that OCS was not
    going to take the girls, he told an officer to arrest Erica for gun possession. Erica
    was cuffed and removed to the same holding facility as Lyle and Dar. The
    deputy sheriffs transported Christine, Olivia, Carley, and the other babysitter
    with Erica, and briefly detained them at the holding facility, but Christine was
    eventually allowed to leave with the three girls.
            At the holding facility, Slocum and LaCour placed Erica in the room with
    Lyle and Dar, where all three were handcuffed to their chairs. Slocum and
    LaCour made threatening and obscene comments to her, including threats of
                                      No. 08-30512
    sexual assault. Earlier, during the preliminary stages of the raid, Slocum had
    looked at Erica, who is Caucasian, and said, “And you think you are white? You
    are not f---ing white.” Slocum and LaCour also threatened Lyle and Dar.
    Tensions rose until Dar, an Iraq war veteran, commented, “After I have served
    a tour of duty in Iraq, I come home to this and experience terrorism in my own
    country.” At that point, Slocum and Doyle ceased their threats, and tensions
          Because the deputy sheriffs’ search of Club Retro produced handguns that
    Lyle and Dar kept in the club’s office, Slocum and Doyle arrested Lyle, Dar, and
    Erica for possessing firearms in an alcohol retail establishment. In addition, the
    fire marshal estimated that, at the time of the raid, there were 822 people in
    Club Retro, so Slocum and Doyle charged Lyle and Dar with violating the fire
    marshal’s order limiting Club Retro’s capacity. The officers’ count of cash in the
    cash registers used for the entry fees—a count that was captured on
    video—evidenced that there were not more than 500 people in the club when it
    was raided.
          Doyle booked Lyle, Dar, and Erica at the Rapides Parish detention center.
    He charged Lyle and Dar with “GENERIC CHARGE-CHGE LATER,”
    He booked Erica for “IMPROPER SUPERVIS. OF MINOR” and “FIREARM
    POSSESSION/BAR.” Within a week, Lyle and Dar were arrested a second time
    and charged with allowing persons aged between eighteen and twenty-one years
    into Club Retro.
          On the night of the raid, Club Retro advertised a performance by Paul
    Wall that was to take place the following Saturday, February 11, 2006. That
    Saturday night, a fire marshal and two Rapides Parish deputy sheriffs entered
                                      No. 08-30512
    Club Retro and stayed until the concert started. Two other deputy sheriffs
    parked their patrol cars conspicuously in Club Retro’s parking lot for the
    duration of the evening. Many potential patrons who intended to attend the
    concert did not do so—some were seen driving into the parking lot where the
    patrol cars were parked and then departing. They did not want to experience a
    repeat of the events of February 5 and 6. Only sixty-seven patrons attended the
          About one-half mile down the road from Club Retro was GG’s, a long-
    established, white-owned nightclub with a white clientele. GG’s has never been
    raided in a manner similar to Operation Retro-Fit.
                                   II. DISCUSSION
    A. Jurisdiction and Standard of Review
          We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s
    denials of qualified immunity. The denial of a motion to dismiss predicated on
    a defense of qualified immunity is a collateral order capable of immediate
    review. See Behrens v. Pelletier, 
    516 U.S. 299
    , 307 (1996) (holding that “an order
    rejecting the defense of qualified immunity at . . . the dismissal stage . . . is a
    ‘final’ judgment subject to immediate appeal”). Our jurisdiction, however, is
    severely curtailed: “we are restricted to determinations ‘of question[s] of law’
    and ‘legal issues,’ and we do not consider ‘the correctness of the plaintiff’s
    version of the facts.’” Atteberry v. Nocona Gen. Hosp., 
    430 F.3d 245
    , 251–52 (5th
    Cir. 2005) (alteration in original) (quoting Mitchell v. Forsyth, 
    472 U.S. 511
    , 528
          Within our limited jurisdiction, we review de novo defendants’ invocations
    of qualified immunity. Id. at 252; Rios v. City of Del Rio, 
    444 F.3d 417
    , 420 (5th
                                          No. 08-30512
    Cir. 2006). We must accept all well-pleaded facts as true, draw all inferences in
    favor of the nonmoving party, and view all facts and inferences in the light most
    favorable to the nonmoving party.            Atteberry, 430 F.3d at 252.          To resist
    dismissal, plaintiffs must plead “enough facts to state a claim for relief that is
    plausible on its face.” Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007).
    B. Qualified Immunity
           Plaintiffs’ § 1983 claims seeking damages from defendants in their
    individual capacities are subject to the affirmative defense of qualified
    immunity. “The doctrine of qualified immunity protects government officials
    ‘from liability for civil damages insofar as their conduct does not violate clearly
    established statutory or constitutional rights of which a reasonable person would
    have known.’” Pearson v. Callahan, 
    129 S. Ct. 808
    , 815 (2009) (quoting Harlow
    v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982)).
           When a defendant invokes qualified immunity, the burden shifts to the
    plaintiff to demonstrate the inapplicability of the defense. McClendon v. City of
    305 F.3d 314
    , 323 (5th Cir. 2002) (en banc). To discharge this burden,
    “a plaintiff must satisfy a two-prong test.” Atteberry, 430 F.3d at 253. “First, he
    must claim that the defendants committed a constitutional violation under
    current law.” Id. (citing, e.g., Wilson v. Layne, 
    526 U.S. 603
    , 609 (1999)).
    “Second, he must claim that the defendants’ actions were objectively
    unreasonable in light of the law that was clearly established at the time of the
    actions complained of.” Id.4 “To be ‘clearly established’ for purposes of qualified
    immunity, ‘[t]he contours of the right must be sufficiently clear that a reasonable
            In Pearson, 129 S. Ct. at 821, the Supreme Court relaxed the requirement, established
    in Saucier v. Katz, 
    533 U.S. 194
     (2001), that we must decide if a constitutional violation
    occurred before we decide if the law was clearly established.
                                             No. 08-30512
    official would understand that what he is doing violates that right.’” Kinney v.
    367 F.3d 337
    , 349–50 (5th Cir. 2004) (en banc) (alteration in original)
    (quoting Anderson v. Creighton, 
    483 U.S. 635
    , 640 (1987)). “The central concept
    is that of ‘fair warning’: The law can be clearly established ‘despite notable
    factual distinctions between the precedents relied on and the cases then before
    the Court, so long as the prior decisions gave reasonable warning that the
    conduct then at issue violated constitutional rights.’” Id. at 350 (quoting Hope
    v. Pelzer, 
    536 U.S. 730
    , 740 (2002)). We apply these standards to defendants’
    assertions of qualified immunity regarding their alleged (1) entry and search of
    Club Retro; (2) arrests of Lyle, Dar, and Erica; (3) searches and seizures of the
    individual plaintiffs; (4) infringements of Club Retro, L.L.C.’s, Lyle’s, and Dar’s
    free speech and association rights; and (5) discrimination.5
           1. Entry and Search of Club Retro
           Based on the allegations of the amended complaint, we conclude that
    defendants are not entitled to qualified immunity for their entry and search of
    Club Retro because the unreasonable scope and manner of Operation Retro-Fit
             Although plaintiffs’ allegations describe defendants’ treatment of Club Retro’s patrons,
    plaintiffs do not allege any claims on behalf of those patrons and readily acknowledge that they
    lack standing to bring such claims. See Rakas v. Illinois, 
    439 U.S. 128
    , 133–34 (1978) (“‘Fourth
    Amendment rights are personal rights which, like some other constitutional rights, may not
    be vicariously asserted.’” (quoting Alderman v. United States, 
    394 U.S. 165
    , 174 (1969)); San
    Jacinto Sav. & Loan v. Kacal, 
    928 F.2d 697
    , 704 (5th Cir. 1991) (“Because the record in this
    case is devoid of any evidence that [the plaintiff] was personally subjected to an illegal search
    or seizure, [the plaintiff] has no standing to assert the rights of third parties who may have
    been subjected to such searches or seizures while at [the plaintiff’s store].”). Nonetheless, these
    allegations are relevant to certain matters that are before us, such as whether defendants’
    conduct exceeded the scope of a proper administrative search, see, e.g., Bruce v. Beary, 
    498 F.3d 1232
    , 1244 n.22 (11th Cir. 2007), and may be relevant to other issues not before us, such as
    causation of Club Retro’s business losses, if any.
                                          No. 08-30512
    violated Club Retro, L.L.C.’s clearly established constitutional rights to be free
    from unreasonable searches and seizures.6
                  a. Constitutional Violations
           As alleged in the amended complaint, the entry and search of Club Retro
    violated Club Retro, L.L.C.’s Fourth Amendment right to operate its commercial
    property free from unreasonable searches and seizures. The Fourth Amendment
    ensures that “[t]he right of the people to be secure in their persons, houses,
    papers, and effects, against unreasonable searches and seizures, shall not be
    violated, and no warrants shall issue, but upon probable cause.” The Supreme
    Court long ago “recognized that the Fourth Amendment’s prohibition on
    unreasonable searches and seizures is applicable to commercial premises.” New
    York v. Burger, 
    482 U.S. 691
    , 699 (1987). Absent a warrant, consent, or other
    exigent circumstances, law enforcement officers act unreasonably and thus
    unconstitutionally when they enter a commercial property to conduct a search
    for contraband or evidence of a crime. Donovan v. Dewey, 
    452 U.S. 594
    , 598 n.6
    (1981) (citing G.M. Leasing Corp., 429 U.S. at 352–359). Defendants do not
    argue that they acted pursuant to a warrant, probable cause, or exigent
    circumstances; instead, they base the reasonableness of their entry and search
    of Club Retro on two alternative theories: (1) that they had the same right to
    enter the club as any other patron, and (2) that they conducted a permissible
    administrative inspection.        Neither theory renders Operation Retro-Fit a
    reasonable search, and precedent existing at the time of the searches shows that
    it was unreasonable.
             Lyle has brought claims both individually and as a manager on behalf of Club Retro,
    L.L.C., which has standing to maintain these claims. See G.M. Leasing Corp. v. United States,
    429 U.S. 338
    , 352–59 (1977) (recognizing a corporation’s Fourth Amendment rights).
                                       No. 08-30512
                       i. Public Establishments
          We are not convinced by defendants’ argument that they had the same
    right to enter the club as any other patron. Although defendants would have
    been free to accept the open public invitation that Club Retro gives to every
    patron, enter Club Retro, and observe the club and persons therein, defendants’
    entry and search of Club Retro and its owners, employees, and patrons far
    exceeded the scope of any public invitation. In Lewis v. United States, 
    385 U.S. 206
     (1966), the Supreme Court held that “[a] government agent, in the same
    manner as a private person, may accept an invitation to do business and may
    enter upon the premises for the very purposes contemplated by the occupant.”
    Id. at 211. This is not an unbounded grant of authority, however: “this does not
    mean that, whenever entry is obtained by invitation and the locus is
    characterized as a place of business, an agent is authorized to conduct a general
    search for incriminating materials . . . .” Id. (citing Gouled v. United States, 
    255 U.S. 298
     (1921)); accord State v. Lund, 
    409 So. 2d 569
    , 570 (La. 1982) (upholding
    an arrest where officers entered a club and only then “became inadvertent
    witnesses to criminal conduct”).
          The principal case relied on by defendants, State v. Dobard, 
    824 So. 2d 1127
     (La. 2002), describes some boundaries and supports our conclusion. In
    Dobard, police officers entered a bar wearing plain clothes for the purpose of
    conducting a “vice check.” Id. at 1129. After announcing their presence and
    approaching a patron, that patron acted suspiciously by visibly discarding an
    object in his possession and retreating from the officers. Id. The officers seized
    the patron and retrieved the object, which they later confirmed to be crack
    cocaine. Id. The Louisiana Supreme Court upheld the resulting arrest: the
                                       No. 08-30512
    officers had specific, articulable facts justifying the seizure of the defendant. Id.
    at 1133.
          As permitted by Lewis, the officers’ presence in the bar was constitutional:
    a police officer may accept a bar’s invitation to the public and enter for “any
    reason or no reason.” Dobard, 824 So. 2d at 1132. “[T]he officers were in a place
    they had a right to be and possessed the same right as any citizen to approach
    an individual and engage him in conversation.” Id. The Louisiana court,
    however, narrowly limited the scope of this holding. It held that the officers
    “had no authority whatsoever to enter a bar and search its patrons for narcotics.”
    Id. at 1131. “Had the officers been searching defendant’s person for narcotics
    based solely on the fact it [sic] was conducting a so-called ‘vice check,’ then any
    contraband recovered would clearly be inadmissible in a subsequent
    prosecution.” Id. It also noted that the officers had not “drawn their weapons,
    physically contacted defendant, ordered or signaled him to stop, or otherwise
    asserted any official authority over him when he panicked and discarded the
    contraband.” Id. at 1132–33 (citations omitted). Thus, accepting a public
    invitation is permissible, but, absent cause, does not justify searches once inside
    the commercial establishment.
          It is clear from these qualifications that defendants in this case could not
    reasonably rely on Dobard to justify the scope of Operation Retro-Fit. Taking
    plaintiffs’ factual allegations as true, defendants did not enter Club Retro as
    would a typical patron; instead, they chose to project official authority by
    entering with weapons drawn in a S.W.A.T. team raid.              They lacked any
    particularized suspicion or probable cause when they subsequently searched
    Club Retro, its attic, and the separate apartment and seized and searched all of
                                     No. 08-30512
    its patrons and employees. Thus, defendants’ entry and search was not a
    reasonable acceptance of Club Retro’s invitation to the public. Any other
    conclusion would be an invitation for S.W.A.T. team raids by law enforcement
    officers of any business that is open to the public and would severely undermine
    the Fourth Amendment protections afforded to owners of commercial premises.
                      ii. Administrative Inspections
          We are likewise not convinced by defendants’ second argument that they
    conducted a permissible administrative inspection. Although Louisiana statutes
    and Rapides Parish ordinances authorizing administrative inspections may have
    provided justification for an entry and inspection of Club Retro, no such law
    permits the scope and manner of the raid that plaintiffs allege occurred here.
    It is true that a commercial property owner’s Fourth Amendment rights are
    “particularly attenuated in commercial property employed in ‘closely regulated’
    industries.” Burger, 482 U.S. at 700. The liquor industry has been a closely
    regulated industry. Colonnade Catering Corp. v. United States, 
    397 U.S. 72
    , 77
    (1970). The owner of a liquor establishment’s attenuated Fourth Amendment
    interests “may, in certain circumstances, be adequately protected by regulatory
    schemes authorizing warrantless inspections.”      Donovan, 452 U.S. at 599;
    Colonnade Catering Corp., 397 U.S. at 77; see also Delaware v. Prouse, 
    440 U.S. 648
    , 654–55 (1979); Bruce, 498 F.3d at 1248 (“Under certain limited
    circumstances, the Constitution permits warrantless administrative searches.
    It never permits unreasonable ones.”).
          To avoid constitutional infirmity, a regulation providing for warrantless
    inspections of a pervasively regulated business must meet three criteria: (1)
    “there must be a ‘substantial’ government interest that informs the regulatory
                                      No. 08-30512
    scheme pursuant to which the inspection is made”; (2) “the warrantless
    inspections must be ‘necessary to further [the] regulatory scheme’”; and (3) “‘the
    statute’s inspection program, in terms of the certainty and regularity of its
    application, [must] provid[e] a constitutionally adequate substitute for a
    warrant.’” Burger, 482 U.S. at 702–03 (alterations in original, citations omitted).
    Only the third criterion is at issue in this case. To satisfy this third criterion,
    “the regulatory statute must perform the two basic functions of a warrant: it
    must advise the owner of the commercial premises that the search is being made
    pursuant to the law and has a properly defined scope, and it must limit the
    discretion of the inspecting officers.” Id. at 703. To put the owner on proper
    notice under the first function, “the statute must be ‘sufficiently comprehensive
    and defined that the owner of commercial property cannot help but be aware
    that his property will be subject to periodic inspections undertaken for specific
    purposes.’” Id. (quoting Donovan, 452 U.S. at 600). To limit officer discretion
    under the second function, the regulation must carefully limit authorized
    inspections “‘in time, place, and scope.’” Id. (quoting United States v. Biswell,
    406 U.S. 311
    , 315 (1972)); see also United States v. Harris Methodist Ft. Worth,
    970 F.2d 94
    , 101–02 (5th Cir. 1992).
          Even under a valid inspection regime, the administrative search cannot
    be pretextual. See Burger, 482 U.S. at 724 (“In the law of administrative
    searches, one principle emerges with unusual clarity and unanimous acceptance:
    the government may not use an administrative inspection scheme to search for
    criminal violations.”); see also, e.g., City of Indianapolis v. Edmond, 
    531 U.S. 32
    37 (2000); Abel v. United States, 
    362 U.S. 217
    , 226 (1960); United States v.
    994 F.2d 740
    , 742 (10th Cir. 1993) (holding that an administrative
                                            No. 08-30512
    inspection is a sham if it is “a pretext solely to gather evidence of criminal
    activity.” (emphasis added)).7          And, in all cases, the Fourth Amendment’s
    reasonableness requirement applies to government officials conducting
    administrative inspections of private commercial property. See Burger, 482 U.S.
    at 702; Donovan, 452 U.S. at 598.
           Defendants propose a number of state statutes and local ordinances to
    justify their entry and search of Club Retro as an administrative inspection:
    alcohol control laws and ordinances, fire safety codes, and state firearm laws.
    Louisiana law authorizes sheriffs and other municipal officers to enforce alcohol
    control laws8 with respect to retailers. See LA. REV. STAT. ANN. § 26:294.
              An officer’s suspicions about criminal wrongdoing do not, however, render an
    administrative inspection pretextual. See United States v. Thomas, 
    973 F.2d 1152
    , 1155–56
    (5th Cir. 1990) (“Administrative searches conducted pursuant to valid statutory schemes do
    not violate the Constitution simply because of the existence of a specific suspicion of
    wrongdoing.”); accord Bruce, 498 F.3d at 1242 (expressing concern about “where to draw the
    line” between administrative inspections and pretextual searches, but concluding that the
    administrative search was not rendered invalid based on some prior suspicion of wrongdoing).
             Substantively, Louisiana law prohibits the sale of alcohol to persons under the age of
    twenty-one, see LA. REV. STAT. ANN. § 26:286(A)(1), and prohibits anyone from permitting a
    person under the age of eighteen from entering any place where alcoholic beverages are the
    principal commodities sold, see id. § 26:286(A)(3)(a); see also id. § 14:92 (applying same
    prohibition in context of the crime of contributing to the delinquency of juveniles under the age
    of seventeen). Louisiana also permits local municipalities to “adopt ordinances regulating or
    prohibiting the opening of certain businesses and/or the sale of certain stock or articles of
    merchandise on Sunday, if approved by the voters at an election,” id. § 51:191, and to “regulate
    but not prohibit, except by referendum vote . . ., the business of wholesaling, retailing, and
    dealing in alcoholic beverages,” id. § 26:493. Rapides Parish accordingly ordered closed all bars
    in the Parish from 2:00 a.m. until 12:00 midnight on Sundays, see RAPIDES PARISH ORDINANCE
    4-3(a)(3)(a), and raised the age at which a person can enter a bar from eighteen to twenty-one,
    see RAPIDES PARISH ORDINANCE 4-25(3). Neither ordinance was submitted to voters at an
    election or approved by referendum vote, and the parties dispute the legality of these municipal
    ordinances in light of Louisiana’s statutory delegation of authority.
                                          No. 08-30512
    Louisiana statutes and Rapides Parish Ordinances also provide for
    administrative inspections:
          [M]unicipal authorities, sheriffs, and other law enforcing officers
          shall have periodic investigations made of the business of all
          permittees within their respective jurisdictions. If any violation [of
          the liquor laws] is observed, such authorities may give the permittee
          a written warning. If the permittee has been previously warned or
          if the violation is of a sufficiently serious nature, they shall file an
          affidavit with the commissioner, setting forth the facts and
          circumstances of the violation. Thereupon, the commissioner shall
          summon the permittee to appear and show cause why his permit
          should not be suspended or revoked.
    LA. REV. STAT. ANN. § 26:93(B); see also RAPIDES PARISH ORDINANCE 4-27.9 In
    addition, separate laws and ordinances permit searches of storage areas (subject
    to strict warrant requirements for private residences and nonpublic areas) and
    the inspection of a liquor licensee’s books. LA. REV. STAT. ANN. §§ 26:370, 26:371;
            Rapides Parish Ordinance 4-27 provides:
          The sheriff of Rapides Parish, Louisiana, is hereby given the power and
          authority to search and examine any place in which he believes a violation of
          [the local liquor laws] is being committed; provided, that no house, room or
          apartment used as, or which apparently is, a bona fide residence shall be subject
          to invasion and search except by an officer designated in a search warrant
          issued by a competent court having the power of a committing magistrate.
             Louisiana Revised Statutes Annotated § 26:371, which Rapides Parish Ordinance 4-
    28 mirrors, provides, in part, that:
           A. The secretary may search and examine pursuant to the provisions of this
           Section, all places of storage except private residences, which may be searched
           only in the manner provided by law. . . .
           B. No place, other than such as is open to the public, shall be invaded and
           searched for alcoholic beverages except by an officer named in a search warrant
           issued by a competent court having the power of a committing magistrate upon
           the filing in the court of an affidavit reciting that affiant has reasons to believe
           and believes that the named place is being utilized as a site for the violation of
           the provisions of the [liquor laws] together with such additional evidence as the
                                              No. 08-30512
           Louisiana law similarly authorizes local law enforcement officials to
    enforce the fire safety codes and the lawful orders of the state fire marshals. LA.
    REV. STAT. ANN. § 40:1591. Specifically, § 40:157511 permits the fire marshal to
    inspect structures for fire code violations; when an inspector uncovers a
           court may require to make out a prima facie case. No house, room, or
           apartment used as, or which apparently is, a bona fide residence is subject to
           invasion and search, except by an officer designated in a search warrant issued
           by a competent court having the powers of a committing magistrate, upon the
           filing in the court of an affidavit by two reliable persons reciting that they have
           reasons to believe and do believe that the place of residence is being used as a
           cloak or cover for a violation of the provisions of [the liquor laws] and setting
           forth the specific violation being committed therein, together with such
           additional corroborating evidence as the court may require to establish the
           probable existence of the alleged violation.
    Louisiana Revised Statutes Annotated § 26:370 adds:
           The secretary may examine, at all reasonable hours, the books, records, and
           other documents of all . . . permittees . . . in this state. If a . . . permittee . . .
           refuses to permit this examination by the secretary, the secretary may proceed
           by rule . . . in any court in the parish where the refusal occurred, requiring the
           person refusing to show cause why the secretary should not be permitted to
           examine its books, records and documents. Refusal by a . . . permittee . . . to
           allow the secretary access to its books, records, and documents shall render any
           alcoholic beverages within this state owned by or in the possession of or in the
           control of such person or his employer or agent subject to seizure, forfeiture, and
           sale as provided in [the liquor laws].
             In relevant part, § 40:1575 provides:
                  A. . . . [U]pon his own initiative when he thinks necessary, the fire
           marshal or any of his authorized representatives may inspect any structure . . .
           within the state except the interiors of private and one- or two-family dwellings.
                  B. Whenever the inspecting officer finds any such structure . . . , which,
           for any cause, is especially . . . dangerous to life . . ., he shall order . . . the
           condition of the premises remedied . . . . The occupant of the structure . . . shall
           not permit it to be used until the fire marshal certifies that the hazardous
           conditions have been eliminated.
                  C. Among the causes which render a structure . . . especially liable to fire
           or dangerous to life are the following:
                  (4) Lack of adequate means of ingress and egress.
                  (5) Lack of adequate, unrestricted passageways to the entrances and exits.
                                     No. 08-30512
    violation, he orders the violation remedied pursuant to service and summons
    procedures, see id. §§ 40:1576, 40:1591. The owner of the property may appeal
    any such order within three days. See id. § 40:1577.
          Finally, Louisiana firearm laws outlaw patrons, but not owners or
    employees, from possessing firearms in bars, see LA. REV. STAT. ANN. § 14:95.5,
    and thus permit limited, presumed-consent, searches for guns of individuals who
    enter alcohol retailers, see LA. REV. STAT. ANN. § 14:95.4(A). Section 14:95.4(A)
          Any person entering an alcoholic beverage outlet as defined herein,
          by the fact of such entering, shall be deemed to have consented to a
          reasonable search of his person for any firearm by a law
          enforcement officer or other person vested with police power,
          without the necessity of a warrant.
    The owner of a bar must post a sign near the entranceway stating that entry
    constitutes consent to such a search. Id. § 14:95.4(E).
          These alcohol control, fire safety, and firearm laws do not authorize the
    entry and search alleged to have occurred during Operation Retro-Fit. Instead,
    these statutes and ordinances authorize and put property owners on notice of
    periodic inspections for compliance with the fire safety and alcohol control laws
    and patrons on notice of reasonable firearm searches. The administrative
    inspection regimes limit law enforcement authority to periodic inspections of
    public places and limit the inspectors’ authority through defined procedures,
    such as various warning, petition, affidavit, summons, and warrant provisions.
    See, e.g., id. §§ 26:93, 26:371(B). The inspection statutes and ordinances do not
    grant law enforcement officers unfettered discretion to conduct searches of
    business premises through any means of their choosing and do not provide notice
    to bar owners that their business, employees, and patrons are subject to armed
                                           No. 08-30512
    S.W.A.T. team raids, physical assault, threats at gunpoint, and prolonged
    detention.12 Defendants conducted a S.W.A.T. team raid, blocked the exits, and
    engaged in a massive show of force. They physically assaulted plaintiffs, who
    had weapons pointed at their faces by men in ski masks and were detained for
    many hours without being permitted access to the restrooms. As alleged in the
    amended complaint, the nature of the raid’s execution led employees to believe
    that they were being robbed by armed gunmen and not that law enforcement
    authorities were inspecting Club Retro for compliance with state and local
    ordinances. Defendants’ search of Club Retro extended into the attic and a
    private apartment located in the building. A deputy sheriff broke down the door
    to that separate apartment, and the children in the room were removed to the
    bar to be photographed. Property in the bar was destroyed. In contrast, on at
    least two prior occasions, deputy sheriffs were able to inspect Club Retro without
    drawing their weapons and, at those times, press Lyle and Dar to close the club
    at 2 a.m. Those prior inspections belie the need for a S.W.A.T. team raid to
    effectuate the inspection statutes and ordinances.
           During oral argument, defendants did not attempt to justify the scope and
    manner of the raids as reasonable, admitting instead that reasonableness is a
    fact-based question for which they must defer to the allegations of the amended
    complaint at this stage of the litigation. Administrative inspections, by their
              If we were to agree with defendants that the inspection statutes and ordinances
    permit the actions undertaken here, we would also be forced to consider whether they are a
    constitutionally adequate substitute for a warrant because they would not provide similar
    protections from law enforcement officers’ unlimited discretion. See Burger, 482 U.S. at
    702–03; Donovan, 452 U.S. at 600; Marshall v. Barlow’s, Inc., 
    436 U.S. 307
    , 323 (1978);
    Colonnade Catering Corp., 397 U.S. at 77. We, however, do not credit defendants’ assertion
    because these administrative inspection statutes and ordinances do not grant officers authority
    to conduct searches of the scope alleged here.
                                       No. 08-30512
    very nature, require more limited, less intrusive conduct than is alleged to have
    occurred here. We thus conclude that defendants’ S.W.A.T. team entries and
    extensive searches, as described in the amended complaint, unreasonably
    exceeded the scope of Louisiana and Rapides Parish administrative inspection
    laws.13    Any other conclusion would allow the administrative inspection
    exception to swallow the Fourth Amendment’s warrant requirement for searches
    of private property.
          Our conclusion is supported by case law holding that an administrative
    inspection regime cannot support armed raids, broad searches, and extended
    detentions. In Swint v. City of Wadley, 
    51 F.3d 988
     (11th Cir. 1995), the
    Eleventh Circuit relied on existing Supreme Court precedent to reject qualified
    immunity as a defense for officers who conducted two raids of a nightclub that
    were comparable in relevant respects to the raid here. There, a S.W.A.T. team
    of thirty to forty officers, wearing ski masks, swarmed a club after receiving a
    signal from an undercover officer who had probable cause to arrest one patron
    for an illegal drug transaction. Id. at 993. The officers pointed their weapons
    at many of the club’s patrons and employees; prohibited the owners, employees,
    and patrons from moving or leaving; searched all individuals; refused patrons’
    and employees’ requests to use the restrooms; searched the club, its cash
    registers, and door receipts; and maintained control of the premises and persons
    for between one and one and one-half hours. Id. The court concluded that the
    officers could point to “no authority that even suggests that the search and
    seizure of one suspect in a public place can be bootstrapped into probable cause
               We need not and do not decide whether defendants’ administrative inspection
    justification was a pretext for a search for evidence of criminal wrongdoing.
                                             No. 08-30512
    for a broad-based search of the business establishment and its patrons.” Id. at
    997 (citing Ybarra v. Illinois, 
    444 U.S. 85
     (1979)). It also held that the raids
    were not administrative searches:
                 The facts viewed favorably to plaintiffs simply will not support
           an administrative search theory. Administrative inspections
           conducted on the [c]lub and its predecessor establishment both
           before and after the two raids at issue in this case were
           accomplished without the massive show of force and excessive
           intrusion witnessed in the [two] raids. Moreover, during the two
           raids the officers did not simply search for violations of the liquor
           laws by the establishment; instead, a 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 998.14
              In Crosby v. Paulk, 
    187 F.3d 1339
     (11th Cir. 1999), the Eleventh Circuit upheld a less
    intrusive raid as a constitutional exercise of an administrative inspection where “no . . . officer
    involved in securing the nightclubs and conducting the investigation drew a weapon or
    threatened the arrestees or any patron.” Id. at 1343. The officers limited their search to
    verifying patrons’ ages, determining if there were after-hours alcohol sales, and ensuring that
    the beer taps were properly labeled. Id. The court distinguished this more limited search from
    the search in Swint based on, inter alia, the use of a S.W.A.T. team, drawn weapons, and more
    extensive searches in the latter case. Id. at 1349 n.14.
           More recently, in Bruce, 498 F.3d at 1236, the Eleventh Circuit held unconstitutional
    a warrantless inspection of an auto body repair shop and salvage yard. Officers in S.W.A.T.
    team gear surrounded the yard, blocked all exits, entered the premises with pistols and
    shotguns drawn, and ordered the employees to line up along a fence. Id. One employee “felt
    something touch his back and turned around to find an officer pointing a shotgun at him.” Id.
    The officers patted down and searched the employees, a desk, and a locked briefcase. Id. They
    arrested the owner on charges of possession of loose vehicle identification number plates and
    operating a “chop shop” in violation of state law and searched the entire premises. Id. at 1237.
    The search lasted over eight hours. The court, noting that prior administrative inspections had
    not required the use of a S.W.A.T. team, held that the scope and manner of the searches was
    unreasonable. Id. at 1243–44. It concluded that:
           [T]he searches in Swint and as claimed in this case deserve to be called what
           they were—criminal raids. The inspection of books and records, of automobile
           titles and VIN numbers does not require exits to be blocked, an automatic
           shotgun to be stuck into an employee’s back, employees to be lined up along a
           fence and patted down and deprived of their identification. None of this conduct
                                           No. 08-30512
           In an unpublished opinion, the Sixth Circuit reached a similar conclusion
    in Russo v. Massullo, No. 90-3240, 
    1991 WL 27420
     (6th Cir. Nov. 5, 1991). In
    Russo, the officers conducted a warrantless, armed raid of a restaurant and
    lounge to serve notices of noncompliance with liquor control laws and to seize
    two allegedly illegal video-poker gambling machines. The officers entered the
    lounge with shotguns and pistols drawn, pointed them at various persons, and
    ordered everyone to raise their hands. They then conducted pat-down searches
    of everyone in the lounge, after which patrons were allowed to leave. Id. at *1.
    The lounge owner and an employee were detained and forbidden from using the
    restroom without the accompaniment of an officer. Id. The entire incident
    lasted approximately two hours. Id. The court concluded that “[a]lthough we
    agree with the defendants that they had a right to conduct an administrative
    inspection based on the presumptive constitutionality of the statute, we do not
    agree that the statute was enough to clothe in qualified immunity those actions
    which went beyond those specifically authorized by the statute.” Id. at *4.
           Based on the facts as alleged by plaintiffs in this case, Operation Retro-Fit
    was broader in scope and more extreme in manner than the administrative
    inspection laws permit. Swint, Bruce, and Russo all concluded that similar,
    arguably less extreme, searches were unconstitutional under existing Supreme
    Court precedent. The search of Club Retro deserves to be called what it was—a
    raid to discover evidence of criminal wrongdoing. Such raids are “not the sort
    of conduct that was approved by the Supreme Court in Burger.” Bruce, 498 F.3d
            is either routine or administrative. It is the conduct of officers conducting a
    Id. at 1245. The present case is clearly more closely situated to Swint and Bruce than Crosby.
                                           No. 08-30512
    at 1245. Operation Retro-Fit was therefore a violation of Club Retro, L.L.C.’s
    Fourth Amendment rights.
                  b.   Objectively          Reasonable         Conduct       Under      Clearly
                  Established Law
           The Fourth Amendment rights at issue in this case were clearly
    established at the time of defendants’ entry and search of Club Retro such that
    a reasonable person would have known that Operation Retro-Fit violated those
    rights. The Supreme Court long ago recognized that the Fourth Amendment
    protects the owner of a commercial establishment, even a heavily regulated one,
    “from unreasonable intrusions onto his property by agents of the government.”
    Donovan, 452 U.S. at 599 (emphasis in original). This court has stood by that
    principle for decades. See, e.g., Harris Methodist Ft. Worth, 970 F.2d at 100–02.
    Existing Supreme Court precedent guided other courts of appeals to conclude
    that violations of clearly established rights had occurred in Swint and Russo,
    long before the events in this case. No reasonable deputy sheriff in defendants’
    positions could believe that the law permitting an official to accept a public
    invitation to enter a commercial establishment as would a typical citizen
    justifies a S.W.A.T. team assault by forty armed officers with weapons drawn
    and a full search without a warrant that is supported by probable cause.
    Similarly, no reasonable deputy sheriff in defendants’ positions could have
    concluded that such a raid—in which they, e.g., threatened individuals with
    weapons, threw employees to the ground, searched the attic and trashed the
    cash registers, broke down the door to a closed apartment, and blocked the exists
    to a club they believed to be overcrowded15—was a lawful, warrantless
             To the extent the fire safety code is designed to mitigate the threat of overcrowding,
    locking patrons inside an overcrowded building for multiple hours would appear to exacerbate,
                                           No. 08-30512
    administrative search to check for underage alcohol consumption or fire code
    violations. See Bruce, 498 F.3d at 1249–50 (“Both Burger and Edmond, decided
    before the instant search, made clear that administrative searches are governed
    by the Fourth Amendment’s requirement for reasonableness.”); Showers v.
    182 F.3d 165
    , 173 (3d Cir. 1999) (holding that the officer’s planning
    and execution of an exhaustive search of plaintiff’s business “had all the
    hallmarks of a purely criminal investigation” that violated “the law barring
    random and extensive administrative searches [that] had been clearly
    established since at least the Burger case in 1987”); Swint, 51 F.3d at 998 (“No
    reasonable officer in the defendants’ position could have believed that these were
    lawful, warrantless administrative searches.”); Russo, 
    1991 WL 27420
    , at *4
    (“[A]t the time of the search, it was clearly established that even where a
    legislative body provides for an administrative inspection of a liquor
    establishment without consent, but has ‘made no rules governing the procedure
    that inspectors must follow, the Fourth Amendment and its restrictive rules
    apply.’” (quoting Colonnade Catering Corp., 397 U.S. at 77)). Thus, we affirm
    the district court’s order denying qualified immunity for defendants’ planning,
    approval, and execution of Operation Retro-Fit as it respects the entry into and
    search of Club Retro.
           2. Arrests
           Slocum and Doyle are not entitled to qualified immunity for their arrests
    of Lyle, Dar, and Erica.16 As alleged in the amended complaint, the arrests were
    not mitigate, the risks that the administrative inspection regime is designed to ameliorate,
    further coloring defendants’ actions as unreasonable.
              On appeal, the parties have not raised or briefed plaintiffs’ state-law false arrest
    claims; therefore, we rule only regarding false arrest under federal law.
                                           No. 08-30512
    not supported by probable cause based on the facts and circumstances known to
    Slocum and Doyle at the time they made the arrests and therefore violated
    Lyle’s, Dar’s, and Erica’s clearly established Fourth Amendment rights.17
                  a. Constitutional Violations
           The constitutional claim of false arrest requires a showing of no probable
    cause.18 Brown v. Lyford, 
    243 F.3d 185
    , 189 (5th Cir. 2001). “The Supreme
    Court has defined probable cause as the ‘facts and circumstances within the
    officer’s knowledge that are sufficient to warrant a prudent person, or one of
    reasonable caution, in believing, in the circumstances shown, that the suspect
    has committed, is committing, or is about to commit an offense.’” Piazza v.
    217 F.3d 239
    , 245–46 (5th Cir. 2000) (quoting Michigan v. DeFillippo,
    443 U.S. 31
    , 37 (1979)). The facts must be known to the officer at the time of the
    arrest; post-hoc justifications based on facts later learned cannot support an
    earlier arrest. Sibron v. New York, 
    392 U.S. 40
    , 62–63 (1968); Henry v. United
    361 U.S. 98
    , 102 (1959); Johnson v. United States, 
    333 U.S. 10
    , 16 (1948);
    Carroll v. United States, 
    267 U.S. 132
    , 161–62 (1925). The facts must be
    particularized to the arrestee. Ybarra, 444 U.S. at 91. We apply an objective
              During oral argument, defendants wisely conceded that the arrests of Lyle, Dar, and
    Erica on gun possession charges violated clearly established constitutional rights of which a
    reasonable person would have known. We therefore focus only on defendants’ other asserted
    bases for arresting Lyle, Dar, and Erica. To the extent any other individual plaintiffs were
    subject to de facto arrest during Operation Retro-Fit, we consider the legality of those arrests
    in our review of their claims of unlawful search and seizure.
             A false arrest claim also requires a showing that any resulting “conviction or sentence
    has been reversed on direct appeal, expunged by executive order, declared invalid by a state
    tribunal authorized to make such determination, or called into question by a federal court’s
    issuance of a writ of habeas corpus.” Heck v. Humphrey, 
    512 U.S. 477
    , 486–87 (1994). The
    amended complaint does not allege that Lyle, Dar, or Erica were convicted of or sentenced for
    any crimes, and defendants have not raised Heck as a bar to the present false arrest claims.
                                      No. 08-30512
    standard, which means that we will find that probable cause existed if the officer
    was aware of facts justifying a reasonable belief that an offense was being
    committed, whether or not the officer charged the arrestee with that specific
    offense. See Devenpeck v. Alford, 
    543 U.S. 146
    , 153–54 (2004).
          Defendants assert that Slocum and Doyle had probable cause at the time
    of arrest to believe that Lyle and Dar failed to comply with an order of the fire
    marshal, in violation of Louisiana Revised Statutes Annotated § 40:1621;
    permitted persons between the ages of eighteen and twenty-one years of age into
    Club Retro, in violation of Rapides Parish Ordinance 4-25(3); kept Club Retro
    open after 2 a.m., in violation of Rapides Parish Ordinance 4-3(a)(3)(a); and
    permitted minors younger than the age of eighteen to enter Club Retro, in
    violation of Louisiana Revised Statutes Annotated §§ 26:90(A)(3)(a),
          We conclude that the facts as alleged in the amended complaint do not
    permit a conclusion that defendants had probable cause to arrest Lyle and Dar
    under these laws at the time of the arrests. Although the parties primarily
    dispute the validity and applicability of Rapides Parish’s ordinances, the
    allegations of the amended complaint clearly establish that Slocum and Doyle
    did not possess knowledge of material facts at the times of the arrests.
    According to the amended complaint, Lyle and Dar were seized and removed
    from Club Retro “as soon as the military attack maneuver began.” Although we
    leave the final resolution of the factual issues for later stages of litigation,
    Anderson v. Creighton, 
    483 U.S. 635
    , 641 (1987) (holding that “the determination
    whether it was objectively legally reasonable to conclude that a given search was
    supported by probable cause or exigent circumstances will often require
    examination of information possessed by the searching officials”), there are no
                                           No. 08-30512
    allegations in the amended complaint that defendants plausibly knew at the
    time of the arrests (1) that the fire marshal estimated the number of patrons
    inside Club Retro to exceed the prior capacity order; (2) that some patrons were
    between eighteen and twenty-one years of age;19 or (3) that minor children were
    in a separate, private apartment. Similarly, the amended complaint expressly
    states that Judge Davidson did not sign the warrants for Lyle’s and Dar’s arrests
    for operating Club Retro after 2 a.m. on January 4, 2006, until hours after their
              Defendants assert that Slocum had probable cause because Lyle and Dar earlier
    notified Slocum that they would permit persons between eighteen and twenty-one years of age
    into Club Retro. This argument is unfounded. The facts of the amended complaint allege only
    that Lyle and Dar asked him whether or not the law permits them to do so. He allegedly
    responded that the law was a “grey area” and directed them to the district attorney’s office.
    The district attorney then confirmed that the law allowed them to permit persons between
    eighteen and twenty-one years of age to enter Club Retro so long as Club Retro did not serve
    those persons alcohol. Thus, based on the amended complaint’s allegations, Slocum did not
    have probable cause to believe that Lyle and Dar were permitting persons between eighteen
    and twenty-one years of age into Club Retro, absent the contemporaneous knowledge that the
    district attorney’s office had so advised them.
              Alternatively, based on the facts alleged in the amended complaint, plaintiffs have
    shown that the warrants cannot support the arrests. The amended complaint alleges that,
    although the warrants were sworn by LaCour, they were procured with Slocum’s involvement.
    “While a valid arrest warrant would normally insulate officers against a claim for false arrest,
    in a case such as the one before us where the officers charged with false arrest were
    responsible for securing the warrant, we are required to test the validity of that warrant,
    applying the usual standards.” Mendenhall v. Riser, 
    213 F.3d 226
    , 232 (5th Cir. 2000).
    Rapides Parish Ordinance 4-3(a)(3)(a) prohibits an alcohol retailer, such as Club Retro, from
    remaining open after 2 a.m. on Sunday mornings. These warrants, however, cannot justify
    the arrests of Lyle and Dar because, inter alia, January 4, 2006, was a Wednesday, not a
    Sunday. Thus, the warrants do not authorize an arrest based on facts constituting probable
    cause to believe a violation of ordinance 4-3(a)(3)(a) had occurred. The same fact precludes an
    argument that Slocum or Doyle had probable cause independently from the flawed warrants.
    Because defendants have provided us with no argument that the warrants were valid, because
    they were not signed until hours after Lyle’s and Dar’s arrest, and because probable cause was
    completely lacking in any case, the warrants cannot support the arrests.
                                           No. 08-30512
           Regarding Slocum’s and Doyle’s arrest of Erica, defendants assert that
    they had probable cause to charge her with improper supervision of a minor
    because she permitted her minor daughter Olivia to enter Club Retro in violation
    of Louisiana Revised Statutes Annotated §§ 14:92(A)(3), 26:90(A)(3)(a),
    26:286(A)(3)(a), and Rapides Parish Ordinance 4-23(3).21 Although the laws
    identified by defendants prohibit a person from permitting a minor to enter an
    establishment that primarily serves alcohol, both Louisiana law and Rapides
    Parish ordinances clearly distinguish between areas in an alcohol-serving
    establishment and separate, private apartments used as residences that are not
    open to the public, see LA. REV. STAT. ANN. § 26:371(B); RAPIDES PARISH
    ORDINANCE 4-27. Here, the allegations of the amended complaint show that a
    deputy sheriff broke down the door to the separate, private apartment that was
    inaccessible to the public and used as a residence wherein Olivia and two other
    minors were staying.22 Olivia was asleep in her pajamas at the time. Officers
    removed all three minors from the separate apartment and seated them at the
    bar in order to photograph them. Erica told Slocum and other officials that the
    girls had been removed from a separate apartment that Lyle and she used as a
    residence. Only then was she arrested. Based on these allegations, we accept
    as fact that Olivia was in a separate apartment, not in Club Retro, prior to the
    raid and that the deputy sheriffs were aware of that fact. Vested with that
             Although the facts of the amended complaint clearly allege that a deputy sheriff did
    not discover Olivia, Carley, and the third minor until well after Lyle and Dar were arrested,
    our holding that Slocum and Doyle lacked probable cause to arrest Erica also applies with
    equal force to Lyle and Dar.
             Thus, defendants’ reliance on State v. Scallan, 
    10 So. 2d 885
     (1942), is misplaced. In
    Scallan, the defendant was charged with allowing his daughter to enter a night club, not
    keeping her in a separate apartment. Id. at 886–87.
                                            No. 08-30512
    knowledge, a reasonable officer in Slocum’s and Doyle’s positions would not have
    believed that the circumstances provided probable cause to arrest Erica for
    committing the offense of permitting a minor to enter the establishment of an
    alcohol retailer. Erica’s arrest was therefore unconstitutional.
           We conclude that, on the facts alleged in the amended complaint, Slocum’s
    and Doyle’s arrests of Lyle, Dar, and Erica violated their constitutional rights
    to be free from arrest lacking probable cause.23
                   b.   Objectively           Reasonable         Conduct       Under       Clearly
                   Established Law
           The Fourth Amendment right to be free from false arrest—arrest without
    probable cause—was clearly established at the time of Lyle’s, Dar’s, and Erica’s
    arrests. See, e.g., Gerstein v. Pugh, 
    420 U.S. 103
    , 111–12 (1975); Mendenhall,
    213 F.3d at 230; Thomas v. Kippermann, 
    846 F.2d 1009
    , 1011 (5th Cir. 1988).
    Nonetheless, “[e]ven law enforcement officials who ‘reasonably but mistakenly
    conclude that probable cause is present’ are entitled to immunity.” Mendenhall,
               Plaintiffs also argue that, even if Slocum and Doyle had probable cause to arrest Lyle,
    Dar, and Erica, defendants nonetheless effectuated their arrests in such ways as to render
    them unreasonable, citing Whren v. United States, 
    517 U.S. 806
    , 818 (1996). While in most
    cases the existence of probable cause removes any doubt about the reasonableness of the
    seizure because the law enforcement interest significantly outweighs the person’s interest in
    being free from governmental intrusion, see id.; Moore, 128 S. Ct. at 1605 (holding that “an
    arrest based on probable cause serves interests that have long been seen as sufficient to justify
    the seizure”), under certain extraordinary circumstances—typically involving physical harm
    or invasion of privacy—an arrest based on probable cause may be unreasonable under the
    Fourth Amendment’s balancing test, see Whren, 517 U.S. at 818; Tennessee v. Garner, 
    471 U.S. 1
    , 7–8 (1985). Plaintiffs assert that defendants’ extremely physical and threatening conduct
    in conducting the raid, collecting the purported evidence of wrong-doing, and seizing Lyle, Dar,
    and Erica render the arrests extraordinary and unreasonable. Because we conclude that, on
    the facts alleged in the amended complaint, no probable cause existed for Lyle’s, Dar’s, and
    Erica’s arrests, we need not and do not reach this issue. The district court is free to consider
    it if factual developments at subsequent stages of litigation lead to the conclusion that probable
    cause existed at the times of the arrests.
                                             No. 08-30512
    213 F.3d at 230 (quoting Hunter v. Bryant, 
    502 U.S. 224
    , 227 (1991)) (other
    quotation marks and citations omitted). Thus, plaintiffs must allege facts
    permitting an inference that defendants lacked arguable (that is, reasonable but
    mistaken) probable cause for the arrests. See Babb v. Dorman, 
    33 F.3d 472
    , 478
    (5th Cir. 1994); see also Tarver v. City of Edna, 
    410 F.3d 745
    , 750 (5th Cir. 2005).
           Plaintiffs have alleged facts showing that Slocum and Doyle lacked
    arguable probable cause to arrest Lyle, Dar, and Erica. For Lyle and Dar,
    Slocum’s and Doyle’s knowledge of the factual circumstances that they argue
    gave rise to probable cause did not emerge until after they effectuated the
    arrests. Yet, it is and was at that time axiomatic that the officers must know the
    factual predicate for probable cause prior to arrest. See, e.g., Sibron, 392 U.S.
    at 62–63; Henry, 361 U.S. at 102. Based on the facts of the amended complaint,
    Slocum and Doyle lacked arguable probable cause to arrest anyone at the outset
    of the raid.24
               Defendants argue that, as an alternative basis for granting qualified immunity,
    Slocum and Doyle had arguable probable cause to arrest Lyle and Dar for permitting persons
    between eighteen and twenty-one years of age into Club Retro, in violation of Rapides Parish
    Ordinance 4-25(3). Plaintiffs argue that Rapides Parish’s promulgation of this ordinance
    violated Louisiana Revised Statutes Annotated § 26:493. Section 26:493 authorizes a parish
    to “regulate but not prohibit, except by referendum vote . . . the business of . . . retailing . . .
    alcoholic beverages” but no “more than is necessary for the protection of the public health,
    morals, safety, and peace.” The parties contest whether the Rapides Parish Ordinance 4-25(3)
    prohibits or regulates and thus whether a referendum vote was necessary for its lawful
    promulgation. Defendants alternatively assert that, even if it was unlawfully promulgated,
    Slocum and Doyle did not act objectively unreasonably when making an arrest pursuant to an
    ordinance that was “on the books” and not clearly established to be unlawful in February 2006.
    Plaintiffs allege that they relied on official interpretations by Rapides Parish officials to ensure
    that they were acting in accordance with Rapides Parish Ordinance 4-25(3), that they asked
    Slocum about the legality of such a course of action, and that Slocum directed them to the
    officials; thus, Slocum’s actions were unreasonable. Whether or not the arrests were
    objectively reasonable on this ground—that is, whether Slocum and Doyle acted reasonably
    but mistakenly in believing that this ordinance provided them with probable cause—we need
    not decide: having already decided that they lacked probable cause to arrest for this violation
                                             No. 08-30512
           For Erica, Louisiana law at the time of Erica’s arrest clearly recognized
    the separate nature of an apartment used, or apparently used, as a private
    residence and forbade an officer from entering such an apartment absent a
    properly obtained warrant in the context of a search for violations of alcohol
    control laws (let alone when not reasonably acting pursuant to such an
    inspection program). See LA. REV. STAT. ANN. § 26:371(B). According to the
    amended complaint, Olivia and the other minors were in a separate, private
    apartment, and an officer had to break down the door in order to gain access.
    While further factual development is warranted, we cannot now conclude that
    Erica’s arrest was based on arguable probable cause.
           Overall, we affirm the district court’s order denying qualified immunity to
    Slocum and Doyle for Erica’s arrest and affirm on different grounds the district
    because the factual predicate—their knowledge of the age of the patrons—did not arise until
    after the arrests, this issue is not yet ripe. If factual developments at subsequent stages of
    litigation lead to the conclusion that probable cause existed at the time of the arrests to believe
    that a violation of ordinance 4-25(3) had occurred, the district court should consider how a
    reasonable officer would have proceeded under the totality of the circumstances known to
    Slocum and Doyle at that time. Cf. Pearson, 129 S. Ct. at 819 (identifying ambiguous state
    statutes or uncertain assumptions about state law as factors bearing on whether to determine
    if an official acted objectively unreasonably in light of clearly established law before
    determining whether a violation of constitutional rights occurred).
            Plaintiffs similarly contest the validity of Rapides Parish Ordinance 4-3(a)(3)(a) (the 2
    a.m. Sunday closure ordinance) in light of Louisiana Revised Statutes Annotated § 51:191,
    which probably requires that ordinance to have been approved by the voters in an election.
    See City of Zwolle v. Polk, 
    643 So. 2d 201
    , 202 (La. Ct. App. 1994) (holding that § 51:191
    mandates that “a local government may prohibit Sunday sales only if the ordinance is
    approved by the voters in an election” (emphasis in original)); see also Bebop’s Ice House, Inc.
    v. City of Sulphur, 
    774 So. 2d 369
    , 372–73 (La. Ct. App. 2000). Even if it was a valid statute,
    because defendants assert that plaintiffs operated Club Retro after 2 a.m. on January 4, 2006,
    a Wednesday, it is not a statute on which to base a finding of arguable probable cause on the
    facts of this case.
                                           No. 08-30512
    court’s order denying qualified immunity to Slocum and Doyle for Lyle’s and
    Dar’s arrests.25
           3. Searches and Seizures of Individual Plaintiffs
           Slocum, Rauls, LaCour, and Doyle are not entitled to qualified immunity
    for their searches and seizures of Lyle, Dar, Erica, Olivia, Christine, Carley,
    Mabou, and Jonathan. As alleged, the searches and seizures of those plaintiffs
    violated their clearly established Fourth Amendment rights.26
                  a. Constitutional Violations
           A search and seizure of a person must be based on probable cause
    particularized with respect to that person unless a constitutionally adequate
    substitute for probable cause exists. See Ybarra, 444 U.S. at 91–94. Defendants
    argue that the searches and seizures of the individual plaintiffs were (1)
    reasonable weapons searches based on the consent presumed under Louisiana
    statutory law when the plaintiffs entered Club Retro, see LA. REV. STAT. ANN.
    § 14:95.4(A); (2) stops and frisks based on reasonable suspicion that plaintiffs
    were engaged in unlawful activities and armed and dangerous, as authorized by
    Terry v. Ohio, 
    392 U.S. 1
     (1968); and (3) reasonable searches incident to
    arrest—whether formal or de facto—based on probable cause.27 Plaintiffs have
             We will not consider defendants’ other asserted bases of probable cause to arrest each
    individual plaintiff because defendants have not identified facts contained in the amended
    complaint that are particularized to each plaintiff. See Ybarra, 444 U.S. at 91.
             Defendants make no argument regarding the conduct directed toward Olivia and
    Carley other than to contest whether they were in a separate apartment or in Club Retro.
    Such factual disputes are not properly before us at this stage of litigation. See Behrens, 516
    U.S. 312–13 (citing Johnson v. Jones, 
    515 U.S. 304
    , 313–318 (1995)).
             Defendants first argue that plaintiffs had no reasonable expectation of privacy once
    they chose to open, operate, or work at Club Retro. This argument warrants little discussion.
    The presence in public, even in a highly regulated commercial establishment, does not lessen
                                         No. 08-30512
    alleged facts showing that defendants’ searches and seizures of Lyle, Dar, Erica,
    Olivia, Christine, Carley, Mabou, and Jonathan far exceeded the scope of
    permissible statutory searches for weapons; were not based on individualized
    suspicions as required by Terry; and were not searches incident to arrests based
    on probable cause.
                        i. Statutory Weapons Searches
          Based on the facts alleged in the amended complaint, the searches and
    seizures of plaintiffs during Operation Retro-Fit were not reasonable weapons
    searches. Louisiana Revised Statutes Annotated § 14:95.4(A) provides that
    “[a]ny person entering an alcoholic beverage outlet . . ., by the fact of such
    entering, shall be deemed to have consented to a reasonable search of his person
    for any firearm by a law enforcement officer . . . without the necessity of a
    warrant.”    Two factual allegations dispel any contention that this statute
    authorized the searches in this case. First, the searches conducted were not
    limited to searches for weapons. The presence of drug sniffing dogs and the
    assistance of narcotics and parole officers suggests that the searches were for
    evidence of crimes, not only firearms.             Second, the searches were not
    reasonable—a statutory requirement for the presumed-consent searches. The
    deputy sheriffs pointed guns at, physically assaulted, and threatened plaintiffs.
    Jonathan was pushed to the ground at gunpoint and searched. Mabou was
    searched at gunpoint. Christine was forced to the ground at gunpoint and
    searched. Carley, a minor staying in the separate apartment, was shoved
    against the wall. Christine, Carley, Erica, and Olivia were all removed from the
    an individual’s right to be free from unreasonable searches and seizures by governmental
    officials. See Ybarra, 444 U.S. at 91; see also Bond v. United States, 
    529 U.S. 334
    , 338–39
                                           No. 08-30512
    premises. Lyle and Dar were seized, assaulted, searched, and removed to a
    secure location. These searches and seizures were not reasonable manifestations
    of the statutorily permitted search to which persons consent when they enter a
                          ii. Stops and Frisks Pursuant to Terry
             Plaintiffs’ allegations also make clear that the searches and seizures of the
    individual plaintiffs were not justified by the Terry stop-and-frisk exceptions to
    the probable cause and warrant requirements. In Terry, the Supreme Court
    held that an officer who lacks probable cause but who can “point to specific and
    articulable facts” that “reasonably warrant” the inference that “a particular
    person” is committing a crime may briefly detain that person in order to
    “investigate the circumstances that provoke suspicion.” 392 U.S. at 21. The
    Supreme Court has time and again reiterated that the stop must be brief,
    minimally intrusive, and “‘reasonably related in scope to the justification for [its]
    initiation.’” United States v. Brignoni-Ponce, 
    422 U.S. 873
    , 880–81 (1975)
    (quoting Terry, 392 U.S. at 29).             An accompanying frisk for weapons is
    warranted if the officer can articulate specific facts and reasonable inferences
    that “he is dealing with an armed and dangerous individual.” Terry, 392 U.S.
    at 27. The search is “a limited protective search for concealed weapons,” not a
    search to discover evidence of a crime. Adams v. Williams, 
    407 U.S. 143
    , 146
    (1972). Overall, “[t]he manner in which the seizure and search were conducted
              We need not and do not decide whether § 14:95.4(A) applies to owners and employees
    of a bar because, in any case, the searches here were not justified by the statute. We also need
    not and do not decide the limits of reasonableness imposed on searches under this statute—i.e.,
    whether they may be more intrusive than a Terry frisk—because of the extreme facts of this
                                           No. 08-30512
    is, of course, as vital a part of the inquiry as whether they were warranted at
    all.” Terry, 392 U.S. at 29; see also Williams v. Kaufman County, 
    352 F.3d 994
    1004 (5th Cir. 2003) (holding unreasonable, and thus unlawful, the officers’
    prolonged, hand-cuffed detention of customers in a public commercial
           In   this case, the        factual pleadings        contain     no   particularized
    determinations by the deputy sheriffs that any of the individual plaintiffs were
    presently committing crimes or armed and dangerous. Moreover, as discussed
    above, the manner of the searches and seizures far exceeded the limited, non-
    threatening intrusions that Terry permits.29
                         iii. Searches Incident to Arrest
           Defendants also argue that they had the right to search Lyle, Dar, Erica,
    Christine, Mabou, and Jonathan incident to their arrests. Officers may perform
    searches incident to constitutionally permissible arrests in order to ensure their
    safety and safeguard evidence. Moore, 128 S. Ct. at 1607; United States v.
    414 U.S. 218
    , 235 (1973) (“A custodial arrest of a suspect based on
    probable cause is a reasonable intrusion under the Fourth Amendment; that
    intrusion being lawful, a search incident to the arrest requires no additional
    justification.” (quotation marks omitted)). A search incident to a custodial
    arrest, however, must be narrowly tailored. The search is limited to the area
    within the arrestee’s immediate control and restricted to securing any weapons
              State v. Jackson, 
    809 So. 2d 198
     (La. Ct. App. 2002), cited by defendants, is
    inapposite. Jackson upheld a search of an individual by a private security guard to whom the
    Fourth Amendment prohibitions against illegal searches do not apply. Id. at 200. The security
    guard then signaled a law enforcement officer that the person possessed either a weapon or
    drugs in violation of the law. Id. at 200–01. The law enforcement officer proceeded to conduct
    a permissible stop and frisk pursuant to § 14:95.4(A) and Terry. Id. at 202.
                                          No. 08-30512
    that the arrestee might use or evidence the arrestee might conceal. Chimel v.
    395 U.S. 752
    , 763 (1969).
           We have already concluded, based on the amended complaint, that
    defendants lacked probable cause to arrest Lyle, Dar, and Erica; therefore, the
    defendants’ searches of them were not pursuant to lawful arrests. The same
    conclusion applies to the searches of Christine, Mabou, and Jonathan, which
    defendants argue were pursuant to seizures based on probable cause resulting
    in de facto arrests. Defendants have pointed to no particularized facts contained
    in the amended complaint supporting probable cause to lawfully arrest
    Christine,30 Mabou, or Jonathan; thus, the searches of those three plaintiffs were
    not proximate to their lawful arrests.
           Overall, on the facts alleged in the amended complaint, Slocum, Rauls,
    LaCour, and Doyle violated Lyle’s, Dar’s, Erica’s, Olivia’s, Christine’s, Carley’s,
    Mabou’s, and Jonathan’s Fourth Amendment rights by searching and seizing
    them without probable cause or one of its substitutes; thus, we must determine
    if those rights were clearly established at the time of the searches and seizures.
                  b.   Objectively         Reasonable        Conduct       Under      Clearly
                  Established Law
           Plaintiffs have alleged violations of Fourth Amendment rights that were
    clearly established in February 2006. Defendants do not contest that the Fourth
    Amendment’s probable cause and reasonableness requirements; Terry’s
    requirement of specific, articulable facts giving rise to reasonable suspicions that
             To the extent defendants assert that the presence of Olivia, Carley, and the other
    minor in the separate, private apartment provided defendants with probable cause to arrest
    Christine, our conclusion above that they lacked probable cause to arrest Erica applies with
    equal force to Christine.
                                      No. 08-30512
    criminal activity is afoot and that the suspect is armed and dangerous; the
    limited scope of Terry and similar weapons searches; and the necessity of a
    lawful arrest to conduct a search incident to arrest were well-established at that
    time. Nor have defendants presented any other basis on which to conclude that
    they acted reasonably. We thus conclude that Slocum, Rauls, LaCour, and Doyle
    are not entitled to qualified immunity for the searches and seizures of Lyle, Dar,
    Erica, Olivia, Christine, Carley, Mabou, and Jonathan. We affirm the district
    court’s order denying qualified immunity to Slocum, Rauls, LaCour, and Doyle
    for these plaintiffs’ Fourth Amendment unreasonable search and seizure claims.
          4. First Amendment Violations
          Hilton, Slocum, Rauls, and LaCour are entitled to qualified immunity for
    Club Retro, L.L.C.’s, Lyle’s, and Dar’s First Amendment free speech and
    association claims because plaintiffs have failed to plead a violation of their
    constitutional rights. The First Amendment provides, in relevant part, that
    “Congress shall make no law . . . abridging the freedom of speech . . . or the right
    of the people peaceably to assemble.” This court has held that “[l]ive musical
    entertainment such as [a] [c]oncert is unquestionably speech and expression
    subject to the guarantees of the First Amendment.” Collins v. Ainsworth, 
    382 F.3d 529
    , 539 (5th Cir. 2004) (citing Ward v. Rock Against Racism, 
    491 U.S. 781
    790 (1989)); see also Schad v. Borough of Mt. Ephraim, 
    452 U.S. 61
    , 65 (1981)
    (“Entertainment . . . is protected; . . . live entertainment, such as musical and
    dramatic works, fall within the First Amendment guarantee.”). To practice this
    freedom and “have access to live musical expression, the public must necessarily
    rely on concert promoters to make arrangements for musicians to perform.”
    Cinevision Corp. v. City of Burbank, 
    745 F.2d 560
    , 568 (9th Cir. 1984); see also
                                      No. 08-30512
    Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 
    452 U.S. 640
    , 655 (1981)
    (“The First Amendment protects the right of every citizen to ‘reach the minds of
    willing listeners and to do so there must be opportunity to win their attention.’”
    (quoting Kovacs v. Cooper, 
    336 U.S. 77
    , 87 (1949))). In the concert setting, the
    First Amendment right to freedom of expression interacts with the right to
    freedom of assembly and association: “Implicit in the right to engage in First
    Amendment-protected activities is ‘a corresponding right to associate with others
    in pursuit of a wide variety of political, social, economic, educational, religious,
    and cultural ends.’” Collins, 382 F.3d at 539 (quoting Roberts v. U.S. Jaycees,
    468 U.S. 609
    , 622 (1984)). The right, which protects expressive association,
    however, does not protect chance encounters at a dance club that contain no
    element of expression. See City of Dallas v. Stranglin, 
    490 U.S. 19
    , 25 (1989);
    Roberts, 468 U.S. at 619; see also Wallace v. Tex. Tech Univ., 
    80 F.3d 1042
    1051–52 (5th Cir. 1996). Nonetheless, “[w]hen public officials are given the
    power to deny use of a forum in advance of actual expression or association, the
    danger of [constitutionally impermissible] prior restraints [on the exercise of
    First Amendment rights] exists.” Collins, 382 F.3d at 539 (citing Se. Promotions,
    Ltd. v. Conrad, 
    420 U.S. 546
    , 553 (1975)).
          In this case, Club Retro, L.L.C., Lyle, and Dar allege two acts that
    purportedly infringed their First Amendment rights. First, on the night of the
    raid, “some of the Deputy Sheriffs were telling people that Club Retro, L.L.C.
    was going to be shut down, that people should not come back to Club Retro,
    L.L.C. and that, if they did come back to Club Retro, L.L.C., that Club Retro,
    L.L.C. would be raided again and they would be arrested.” Second, the following
    weekend, on the night of Paul Wall’s concert at Club Retro, a fire marshal and
                                           No. 08-30512
    two Rapides Parish deputy sheriffs entered Club Retro and stayed until the
    show began. Two other Rapides Parish deputy sheriffs conspicuously parked
    their cruisers in Club Retro’s parking lot for the duration of the concert.
           We conclude that plaintiffs have failed to plead a constitutional
    infringement. Statements by some deputy sheriffs that people should not return
    to the club do not constitute a prior restraint on any First Amendment rights.
    Plaintiffs were free to and did hold their concert the following weekend. They
    also continued to operate Club Retro on subsequent weekends without
    government officials exercising any control over their speech.31 Patrons were
    free to and did attend. Similarly, the passive attendance and visibility of the
    deputy sheriffs at Club Retro before and during the Paul Wall concert was not
    a violation of First Amendment rights. The deputy sheriffs had every right to
    attend the show and park in the parking lot just as any other patron. See Lewis,
    385 U.S. at 211; Dobard, 824 So. 2d at 1133.                  The concert proceeded as
    scheduled, and the amended complaint does not allege that the deputy sheriffs
    interfered so as to prevent any persons who wanted to attend from attending.32
    Moreover, plaintiffs have not alleged that Hilton, Slocum, Rauls, or LaCour were
    personally involved in the events on the night of the Paul Wall concert.
             We address only plaintiffs’ First Amendment claims: plaintiffs’ state-law business
    interference claims and related injuries are not before us.
             Thus, Collins is inapposite. In Collins, the sheriff first asked concert organizers to
    cancel their planned 2 Live Crew concert; when the organizers refused, the sheriff organized
    two driver’s license checkpoints near the entrances to the concert venue. 382 F.3d at 545.
    After the members of 2 Live Crew and many concert goers were stopped at the check-points,
    2 Live Crew did not perform. Id. at 535. Although the checkpoints were “facially valid,” the
    court held that the sheriff abused his authority by using the checkpoints for his intended and
    stated purpose of denying the use of the venue for a concert. Id. at 545. Here, there are no
    allegations that defendants physically interfered with potential concert attendees.
                                      No. 08-30512
    Therefore, defendants are entitled to qualified immunity because plaintiffs have
    not alleged that any of the defendants denied Club Retro, L.L.C., Lyle, or Dar
    use of Club Retro for First Amendment protected expression. We reverse the
    district court’s order on this claim.
          5. Equal Protection Violations
          Hilton, Slocum, Rauls, and LaCour are entitled to qualified immunity for
    plaintiffs’ Fourteenth Amendment equal protection claims because plaintiffs
    have failed to allege either an intent to discriminate or unequal treatment. The
    Fourteenth Amendment prohibits a state from “deny[ing] to any person within
    its jurisdiction the equal protection of the laws.” This “Equal Protection Clause
    ‘is essentially a direction that all persons similarly situated should be treated
    alike.’” Qutb v. Strauss, 
    11 F.3d 488
    , 492 (5th Cir. 1993) (quoting City of
    Cleburne v. Cleburne Living Ctr., Inc., 
    473 U.S. 432
    , 439 (1985)). To maintain
    an equal protection claim, a plaintiff typically alleges that he “received
    treatment different from that received by similarly situated individuals and that
    the unequal treatment stemmed from a discriminatory intent.”            Taylor v.
    257 F.3d 470
    , 473 (5th Cir. 2001); see In re United States, 
    397 F.3d 274
    284 (5th Cir. 2005); Beeler v. Rounsavall, 
    328 F.3d 813
    , 816–17 (5th Cir. 2003);
    Rolf v. City of San Antonio, 
    77 F.3d 823
    , 828 (5th Cir. 1996).
          Plaintiffs’ amended complaint alleges that they have been discriminated
    against based on Lyle’s and Dar’s Creole ethnicity and Club Retro’s mixed-race
    clientele. Plaintiffs allege four facts that they claim are sufficient to state a
    claim of racial discrimination: (1) the racial makeup of the Club’s owners,
    employees, and patrons compared to that of the predominately Caucasian
    Rapides Parish Sheriffs Department; (2) unnamed deputy sheriffs’ use of racial
                                           No. 08-30512
    epithets; (3) the absence of similar raids against GG’s, a white-owned nightclub
    that caters to white patrons;33 and (4) statistics showing Operation Retro-Fit
    yielded few arrests. These allegations fail to carry plaintiffs’ burden of alleging
    facts showing unequal treatment or discriminatory intent on the part of the
    planners of Operation Retro-Fit. See Twombly, 127 S. Ct. at 1965, 1974.
           We strongly condemn the use of racial epithets; however, the usage alleged
    here is not probative of disparate treatment or discriminatory intent. Plaintiffs
    have alleged generally that “[t]he crowd was . . . insulted with profanities and
    racial slurs” and specifically that Slocum said to Erica, “And you think you are
    White? You are not F---ing White.” In Williams v. Bramer, 
    180 F.3d 699
    , 706
    (5th Cir. 1999), this court held that “an officer’s use of a racial epithet, without
    harassment or some other conduct that deprives the victim of established rights,
    does not amount to an equal protection violation.” The court explained that:
           When leveled against a citizen by a police officer, a racial epithet, by
           its nature, calls attention to the citizen’s racial identity. The use of
           an epithet is therefore strong evidence that a comment or action is
           racially motivated. The question in the equal protection context,
           however, is not just whether the conduct is racially motivated but
           also whether that action deprives a person of “equal protection of
           the laws.” Where the conduct at issue consists solely of speech,
           there is no equal protection violation.
    Id. (citation omitted). As deplorable and reprehensible as the use of racial
    profanity is, particularly in the context of intrusive displays of official police
    authority, plaintiffs have not alleged that any defendant made a statement that
               According to the amended complaint, GG’s is located about one-half mile up the road
    from Club Retro. Defendants argue that, unlike Club Retro, GG’s is within an incorporated
    municipality and thus not subject to Rapides Parish ordinances. Because GG’s location is an
    issue of fact, we assume for our present analysis that GG’s was in the same jurisdiction as Club
                                      No. 08-30512
    he targeted Club Retro because it was minority-owned and attracted a mixed-
    race and mixed-ethnicity crowd.
          Next, plaintiffs allege that GG’s has not been raided. This allegation is
    insufficient to show disparate treatment where plaintiffs have failed to allege
    any facts showing that GG’s was similarly situated.          Moreover, prior to
    Operation Retro-Fit, Club Retro had likewise not been raided; thus, we can draw
    no inference of disparate treatment: “[t]he first club raided had to be either
    black-owned or white-owned, and that it was one instead of the other proves
    nothing.” Swint, 51 F.3d at 1000. Finally, we note that the differences in the
    racial or ethnic makeup of the respective parties and the post-operation
    statistics showing Operation Retro-Fit yielded few drug arrests are not
    probative, without other allegations, of unequal treatment or discriminatory
          Thus, defendants are entitled to qualified immunity on plaintiffs’ equal
    protection claims, and we reverse the district court’s order in that regard.
    C. Dismissal Without Prejudice
          Finally, we lack jurisdiction to review an appeal of the district court’s
    order granting without prejudice the motion to dismiss the substantive due
    process claims based on qualified immunity.        Section 1291 vests us with
    jurisdiction over “all final decisions of the district courts.” In most cases, “an
    order is final only when it ‘ends the litigation on the merits and leaves nothing
    for the court to do but execute the judgment.’” Coopers & Lybrand v. Livesay,
    437 U.S. 463
    , 467 (1978) (quoting Catlin v. United States, 
    324 U.S. 229
    However, “a decision ‘final’ within the meaning of § 1291 does not necessarily
    mean the last order possible to be made in a case.” Gillespie v. United States
                                       No. 08-30512
    Steel Corp., 
    379 U.S. 148
    , 152 (1964). Among the exceptions to the general rule
    are orders that “fall in that small class [of decisions] which finally determine
    claims of right separable from, and collateral to, rights asserted in the action, too
    important to be denied review and too independent of the cause itself to require
    that appellate consideration be deferred until the whole case is adjudicated.”
    Cohen v. Beneficial Indus. Loan Corp., 
    337 U.S. 541
    , 546 (1949). Under the
    Cohen collateral order doctrine, “a district court’s denial of a claim of qualified
    immunity, to the extent that it turns on an issue of law, is an appealable ‘final
    decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence
    of a final judgment.” Mitchell, 472 U.S. at 530 (emphasis added). A district
    court’s order granting qualified immunity, however, typically does not qualify
    under the Cohen collateral order doctrine because the order is “capable of being
    fully and effectively reviewed after final judgment.” Thompson v. Betts, 
    754 F.2d 1243
    , 1246 (5th Cir. 1985); cf. United States v. Day, 
    806 F.2d 1240
    , 1242 n.8 (5th
    Cir. 1986) (noting “that a dismissal without prejudice of a criminal indictment
    does not generally fall within the collateral order exception to section 1291”
    because “no important right of [the defendant’s] is irreparably foreclosed from
    review”). One could argue that when granted without prejudice, a dismissal is
    not a complete victory for a defendant, in that the defendant remains subject to
    the risk of suit and is not “home free.” As such, the plaintiff’s ability to file a
    new suit could risk “inhibition of [the official’s] discretionary action . . . and
    deterrence of able people from public service”—the very harms that the doctrine
    of qualified immunity seeks to avoid. Mitchell, 472 U.S. at 526; see also Jacquez,
    801 F.2d at 792 (“[I]f the protections afforded public officials are not to ring
    hollow, plaintiffs cannot be allowed to continue to supplement their pleadings
                                            No. 08-30512
    until they stumble upon a formula that carries them over the threshold.”). This
    concern is unfounded. Even though the district court dismissed the substantive
    due process claims without prejudice, defendants simply do not face discovery,
    trial, liability, or any other costs of suit related to such claims. Hilbun v.
    823 F.2d 881
    , 883 (5th Cir. 1987) (“A federal court that dismisses
    without prejudice a suit arising from a federal statutory cause of action . . .
    leaves the parties in the same legal position as if no suit had ever been filed.”).
    If the case proceeds in its current posture, defendants’ rights to be free from the
    burdens of suit for which they are entitled qualified immunity will be vindicated
    without further action from any court. If and only if plaintiffs move to amend
    their complaint or file a new complaint, and the district court permits them to
    proceed over defendants’ continuing assertion of qualified immunity, will
    defendants face the burdens of discovery or trial on the substantive due process
    claims. Thus, accepting jurisdiction and deciding the case at this time would be
    a fundamentally speculative enterprise.34 We therefore dismiss for lack of
    appellate jurisdiction defendants’ appeal of the district court’s order dismissing
    the substantive due process claims without prejudice.
                                       III. CONCLUSION
           For the foregoing reasons, we AFFIRM in part, REVERSE in part, and
    REMAND. We AFFIRM the district court’s order denying qualified immunity
              Moreover, our jurisdiction is closely circumscribed only to legal questions. See
    Johnson, 515 U.S. at 313–315; Atteberry, 430 F.3d at 251–52. Because the district court is
    best situated to determine when plaintiffs have had sufficient opportunity to state their best
    case, we review the district court’s decision to grant a motion to dismiss with or without
    prejudice only for abuse of discretion. See Schiller v. Physicians Res. Group Inc., 
    342 F.3d 563
    567 (5th Cir. 2003). We cannot conclude that, in this case, such a decision turns on a purely
    legal question.
                                      No. 08-30512
    for plaintiffs’ Fourth Amendment claims with respect to the raid on Club Retro
    and the searches and seizures of Lyle, Dar, Erica, Olivia, Christine, Carley,
    Mabou, and Jonathan; and denying qualified immunity for Erica’s Fourth
    Amendment false arrest claim; and dismissing plaintiffs’ due process claims
    without prejudice. We AFFIRM on different grounds the district court’s order
    denying qualified immunity for Lyle’s and Dar’s Fourth Amendment false arrest
    claims. We REVERSE the district court’s order denying qualified immunity for
    Club Retro’s, Lyle’s, and Dar’s First Amendment claims; and denying qualified
    immunity for plaintiffs’ Fourteenth Amendment equal protection claims. We
    DISMISS the appeal of the district court’s order dismissing plaintiffs’
    substantive due process claims without prejudice. We REMAND to the district
    court for proceedings not inconsistent with this opinion. Defendants-appellants
    shall bear the costs of this appeal.