Professional Documents
Culture Documents
No. 07-1037
DAVID M. RUTTENBERG;
ENTERPRISES, INC.,
JUDITH
G.
RUTTENBERG;
TRIPLE
Plaintiffs - Appellants,
v.
FRANK JONES, Mayor of Manassas Park, Virginia, in his official
and individual capacities; JOHN EVANS, Chief of Police of
Manassas Park, Virginia, in his official and individual
capacities; DETECTIVE L, Manassas Park Police Detective, in
his official and individual capacities; CITY OF MANASSAS PARK,
VIRGINIA; DETECTIVE W, Prince William County Police Detective,
in his official and individual capacities; THOMAS L. KIFER, in
his official and individual capacities,
Defendants - Appellees.
-------------------------------------AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, INCORPORATED,
Amicus Supporting Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:06-cv-00639-TSE-BR)
Argued:
Decided:
ARGUED: Judith Lynne Wheat, WHEAT & WU, Washington, D.C., for
Appellants.
John David Wilburn, MCGUIREWOODS, L.L.P., McLean,
Virginia, for Appellees. ON BRIEF: Neil H. Ruttenberg, Beltsville,
Maryland, for Appellants. Anand V. Ramana, MCGUIREWOODS, L.L.P.,
McLean, Virginia, for Appellees Frank Jones, John Evans, Detective
L, City of Manassas Park, Virginia; M. Alice Rowan, PRINCE WILLIAM
COUNTY, Prince William, Virginia, for Appellee Detective W.
Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA
FOUNDATION, INC., Richmond, Virginia, for Amicus Supporting
Appellants.
PER CURIAM:
David Ruttenberg, Judith Ruttenberg, and Triple D Enterprises,
Inc. (collectively Appellants) appeal the dismissal of their
complaint, which alleged that numerous officials of the City of
Manassas Park and Prince William County and the City of Manassas
Park itself (collectively Appellees) violated their rights under
the First, Fourth, and Fourteenth Amendments during an alleged
multi-year course of conduct designed to harm Appellants and
destroy
their
business
by,
among
other
things,
manufacturing
We affirm the
I.
The district court granted Appellees motion to dismiss, so we
accept as true the well-pleaded allegations stated in the complaint
Ruttenberg
and
his
mother
Judith
Ruttenberg,
both
In 1993, RNR
permit from the City of Manassas Park allowing the operation of the
business on the premises.
(J.A.
(J.A. at 66.)
(J.A. at 66.)
(J.A. at 68.)
reported that an employee had stolen equipment from RNR, but when
he learned that the employee faced significant jail time due to
prior convictions, Ruttenberg, in an act of mercy, decided not to
pursue the complaint.
charged with filing a false police report; on his court date, the
charges were dismissed even though Ruttenberg saw Detective L in
the courtroom that day.
After
this
incident,
Ruttenberg
and
his
father
Neil
Narcotics Task Forces offer, and she later told Ruttenberg that
the Task Force was planning a raid at RNR to apprehend the
perpetrators of drug transactions conducted at RNR and to search
RNR.
Upon
hearing
this
information,
Ruttenberg
immediately
No
agent
for
Narcotics
Task
Force
investigation
into
At that
Prior to his time in prison, Kifer had worked for RNR performing
various odd jobs, including door security. Detective L asked Kifer
to become a paid police informant and to aid in the investigation
of Ruttenberg.
about
providing
door
security
at
RNR.
Although
February
2004,
Detective
assigned
Detective
W,
drug market,
arrest record and became suspicious that Price was dealing drugs at
RNR.
Detective W was
Kifer apparently
received
in
payments
from
several
drug
dealers
exchange
for
nor any employees of RNR other than Kifer, were involved in these
drug transactions.
Despite these transactions involving Detective W, Detective L
was unable to procure a search warrant for RNR.
Undeterred,
Because
it
held
an
ABC
license,
RNR
was
subject
to
beer that should have been labeled as samples, but were not.
(J.A. at 78.)
Department,
went
to
the
Northern
Virginia
Electrical
Narcotics Task Force, exited the police vehicles with their weapons
drawn and pointed at Ruttenberg and his friend.
Once Ruttenbergs
RNR.
evidentiary
hearing
and
revoked
Triple
Ds
ABC
license.
(J.A. at 82.)
Both decisions
the
First
Amendment
(Count
II);
(3)
that
Chief
Evans,
The
II.
On appeal, Appellants contend that the district court erred in
dismissing Counts I, II, IV, and V and in granting Appellees
qualified
immunity
on
Count
III.
arguments in turn.
12
We
address
each
of
these
A.
Standard of Review
Edwards v. City of
Additionally, a
Bell Atl.
and
substantive
component.
To
state
claim
for
states
action
falls
so
far
beyond
the
outer
limits
of
The protections of
pre-deprivation
rectification
by
any
procedural
protections
post-deprivation
state
or
of
adequate
remedies.
Id.
(quoting Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir.
1991)).
14
i.e.,
the
Appellants
could
(and
did)
appeal
that
deprivation under Va. Code Ann. 4.1-227 (1999 & Supp. 2007).
Appellants admittedly have a property interest in both the ABC
license and the conditional-use permit.2 The alleged actions here,
however,
do
not
fall
so
far
outside
the
realm
of
normal
to
the
RNR
existence
before
of
established
revocation
of
its
state
ABC
procedures
license
and
the
state
opportunity
to
administrative
challenge
the
claim,
Appellants
essentially
Appellants
against
had
the
them--the
same
us
to
reweigh
the
Id.
[their]
[Appellants]
speech
must
was
demonstrate
that
Id.
the
at
686.
defendants
Second,
alleged
Id.
Id.
(J.A. at 188.)
of
Rock
Hill,
501
F.3d
368,
372
n.4
(4th
Cir.
2007)
Clearly
(J.A. at 188.)
status of the speaker, the relationship between the speaker and the
retaliator, and the nature of the retaliatory acts.
Id. at 531
As we
531 (quoting Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir.
2003)).
We conclude, however, that Appellants have failed to establish
a causal relationship between their speech and the retaliatory
action.
Id.
superiors.
Indeed,
the
complaint
alleges
that
As
We therefore
jurisdiction
against
intentional
and
arbitrary
Willowbrook
v.
Olech,
528
U.S.
562,
564
(2000)
Vill.
(internal
In recognition of this
has
been
intentionally
treated
differently
from
others
251, 263 (4th Cir. 2005) (quoting Olech, 528 U.S. at 564).
The complaint alleges that Mayor Jones, Chief Evans, Detective
L, and Detective W selectively enforced the ABC laws and narcotics
laws in violation of Appellants equal protection rights.
at 86.)
(J.A.
the
addition,
existence
the
of
complaint
similarly
situated
fails
allege
to
individuals.
that
the
In
disparate
To establish a
done
in
furtherance
of
the
conspiracy
which
resulted
in
Appellants
(J.A. at 194.)
Hinkle, 81 F.3d at
No common
deciding,
there
was
constitutional
violation,
the
Before moving to a
qualified
court
immunity
analysis,
the
district
should
have
See
We
ABC Board and its agents free access to examin[e] and inspect[]
its premises for the purpose of ensuring compliance with ABC
regulations.
It is well-
settled
such
need
that
regulatory
inspections
do
not
to
be
searches
of
closely
regulated
businesses
are
has
inspection).
long
This
been
is
subject
because
to
close
licensees
like
supervision
RNR
and
enjoy
See, e.g.,
United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993); Bruce
v.
Beary,
498
F.3d
1232,
1239-40
(11th
Cir.
2007)
(quoting
Johnson); see also City of Indianapolis v. Edmond, 531 U.S. 32, 3738 (2000) (indicating that a warrant is required if the primary
purpose [of the search] was to detect evidence of ordinary criminal
wrongdoing).
At the same time, however, a regulatory inspection does not
contravene the Fourth Amendment simply because it is accompanied
by
some
suspicion
of
wrongdoing.
Bruce,
498
F.3d
at
1242
United
States v. Johnson, 408 F.3d 1313, 1323 (10th Cir. 2005); see also
Bruce, 498 F.3d at 1250-53 (Carnes, J., concurring) (collecting
cases).
It
is
only
when
the
search
is
so
divorced
from
administrative
search
of
RNR
was
employed
solely
as
an
officers
administrative
observed
ABC
inspection
violations
in
June
2004.
at
RNR
prior
This
was
to
the
clearly
Special Agent
anything
other
than
ABC
violations
26
when
conducting
the
administrative inspection.
license.
Thus, it is undisputed that ABC officials participated in the
search,
an
ABC
violation
was
discovered
during
the
search,
In
Id. at 999.
Appellants
allege
do
not
that
officers
conducting
the
(J.A.
187 F.3d 1339, 1344 (11th Cir. 1999) (noting that because [s]tate
officials can act lawfully even when motivated by a dislike or
hostility, the court did not need to address the alleged ill will
between
the
officers
and
the
plaintiff
(internal
quotations
proper
administrative
search,
the
officers
motive
is
irrelevant.).
In sum, based on the facts as alleged in the complaint, we
believe the search was not pretextual but rather a proper exercise
of
the
state
and
local
governments
legitimate
interest
in
We therefore find no
the
officers
unlawfully
entered
and
searched
David
alcoholic
offered
for
sale
beverages
or
sold,
are
manufactured,
for
the
purpose
bottled,
of
stored,
examining
and
the
real
estate,
together
with
any
buildings
or
other
Despite
the
authorizations
evident
breadth,
Appellants
under
5-50-70(B)
because
alcoholic
beverages
were
not
statute.
As noted above, ABC officials may inspect any part of the
licensed premises - that is, the real estate, together with any
buildings or other improvements thereon -- except those areas
actually and exclusively used as a private residence.
Code Ann. 4.1-100.
See Va.
Ruttenberg, 464 F.
must
likewise
remain[]
within
the
boundaries
of
officers,
including
six
or
seven
ABC
agents,
Appellants also
claim that RNR patrons and employees were ordered against the wall
to be searched by heavily armed officers, (J.A. at 85), causing
them to be detained and terrorized, (J.A. at 76).
Finally,
Appellants allege -- in their briefs, but not their complaint -that these patrons and employees were held at gunpoint for over an
hour.
Based on these allegations, we conclude that Appellants have
pleaded sufficient facts to survive a motion to dismiss.
At this
4.
While we of course leave the conduct of such proceedings to
the district court, the boundaries of the inquiry upon remand are
worth mention.
As noted above, the inquiry here is one of reasonableness.
Thus, the guiding standard is whether, under the circumstances
confronting
the
officers
and
disregarding
their
intent
or
undoubtedly
relevant,
is
not
by
itself
dispositive.
2002)
(remarking
that
nothing
in
the
fourth
amendment
The number
suggest.
The
Supreme
Court
has
repeatedly
made
clear
that
127 S. Ct. 1989, 1992 (2007) (citing Muehler v. Mena, 544 U.S. 93,
98-100 (2005)).
Thus, in
498
prolonged.
F.3d
at
1245,
and
whether
the
search
was
unduly
34
So long as the
See
find
three
decisions
by
the
Eleventh
Circuit
to
be
inspections
to
be
unreasonably
excessive
in
Id. at 999.
In addition, officers
sidearms drawn.
See id. at
Id. at
In Crosby, forty
found
context.
no
Id. at 1343.
violation
of
constitutional
right
in
this
Dammon, 848 F.2d 440 (4th Cir. 1988), [t]here is no question that
the Fourth Amendment prohibition of unreasonable searches and
37
Id. at 446.
Georges
County,
302
F.3d
262,
270
See Robles v.
(4th
Cir.
2002)
(Although notice does not require that the very action in question
has previously been held unlawful, it does mean that in light of
pre-existing law the unlawfulness must be apparent. (internal
quotation marks omitted)); see also Simeon v. T. Smith & Son, Inc.,
852 F.2d 1421, 1453 (5th Cir. 1988) (explaining that courts should
not confine a previous case to its facts so that a rule would only
apply to redheaded Walpoles in pale magenta Buick cars) (quoting
Karl N. Llewellyn).
38
government
officials
performing
discretionary
functions
are
Anderson v. Creighton,
483 U.S. 635, 638 (1987) (citing Malley v. Briggs, 475 U.S. 335,
341 (1986)); Saucier, 533 U.S. at 205.
resolved
on
summary
judgment
is,
of
not
possible
to
With
III.
For the foregoing reasons, we affirm the dismissal of Counts
I, II, IV, and V of Appellants complaint and reverse the dismissal
of Count III.4
4