UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ABCDE OPERATING, LLC,

Plaintiff,

v.

CITY OF DETROIT, et al.,

Defendants.

 /

Case No. 14-13158

Honorable Nancy G. Edmunds

OPINION AND ORDER REGARDING

CROSS-MOTIONS FOR SUMMARY JUDGMENT [52, 53, 55, 75]

Plaintiff ABCDE Operating, LLC, doing business as the Penthouse Club, commenced

this suit in this Court on August 15, 2014, alleging that the Defendant City of Detroit and

a number of individual Defendant officers in the Detroit Police Department (“DPD”) violated

Plaintiff’s rights under the First and Fourth Amendments to the U.S. Constitution by

conducting warrantless and suspicionless raids of Plaintiff’s adult entertainment club in

retaliation against Plaintiff’s exercise of its First Amendment rights.1

 Specifically, Plaintiff

alleges that the first of these challenged raids occurred in January of 2014, shortly after

Plaintiff wrote to the Detroit Chief of Police complaining of increased police investigations

of adult entertainment facilities, and that DPD officers conducted a number of additional

raids after Plaintiff brought this suit and began actively pursuing discovery in support of its

 1The initial complaint in this case named two other adult entertainment clubs as

plaintiffs, but these clubs have since been dismissed as parties, leaving the Penthouse

Club as the sole remaining plaintiff. Similarly, the initial complaint identified nine

individual DPD officers as defendants, but Plaintiff’s fourth amended complaint now

names the City of Detroit and 23 individual DPD officers as defendants. 
claims. In Plaintiff’s view, the Defendant City and officers conducted these raids in

retaliation against Plaintiff’s exercise of its constitutionally protected rights to free speech

and to seek redress from the courts, and the manner in which these raids were carried out

violated the constitutional guarantee against unreasonable searches and seizures. 

Four dispositive motions presently are pending before the Court. First, the Defendant

City and its officers seek the dismissal of Plaintiff’s claims or, alternatively, an award of

summary judgment in their favor as to each of these claims,2

 arguing primarily (i) that the

Defendant officers were entitled to enter the public areas of Plaintiff’s club without a

warrant, (ii) that the officers did not exceed the scope of their lawful authority while on

Plaintiff’s premises as they carried out administrative inspections and engaged in other

legitimate law enforcement activities, (iii) that to the extent any Defendant officers might

have violated any constitutional principles, these officers nonetheless would be entitled to

qualified immunity from liability, and (iv) that Plaintiff cannot show that any constitutional

violations are attributable to a municipal custom or policy, as necessary to hold the

Defendant City liable for these alleged violations.3

 For its part, Plaintiff has filed two

 2To be accurate, this motion has been brought by the Defendant City and 16 of the

23 individual DPD officers named as defendants. The seven remaining defendant

officers named in Plaintiff's fourth amended complaint — Jeffrey Banks, Larry Barnett,

Jeffrey Duley, Donte Jenkins, Arthur Leavell, Steven Riley, and Holly Reed — have not

yet appeared in this suit, and there is no evidence in the record that these individuals

were served with summonses or copies of the complaint. Accordingly, the claims

against these individuals will be dismissed without prejudice. 

 3

The brief in support of Defendants' motion is 69 pages in length, well in excess of

the 25-page limit imposed under Local Rule 7.1(d)(3)(A) of this District. In recognition of

this, Defendants' motion is accompanied by an ex parte application to file a brief in

excess of the 25-page limit. In response, Plaintiff has filed a motion to strike all pages

of Defendants' summary judgment brief beyond this 25-page limit, arguing that

Defendants have failed to identify a sufficient reason for submitting a brief that is nearly

2
motions for partial summary judgment, contending (i) that its constitutional rights were

violated by virtue of a City of Detroit custom authorizing warrantless, suspicionless

enforcement actions against adult entertainment venues located in the City, and (ii) that

three particular Defendant police officers who led and participated in the warrantless raids

of Plaintiff’s club engaged in unlawful activities that violated Plaintiff’s constitutional rights

as a matter of law. Finally, Plaintiff contends in a more recent motion that under principles

of issue preclusion, a state court ruling in a criminal proceeding brought against one of

Plaintiff’s employees prevents the Defendant City and three of the Defendant officers from

relitigating the lawfulness of the December 2015 raid of Plaintiff’s club.

On April 19, 2017, the Court heard oral argument on the parties’ motions.4

 For the

reasons stated more fully below, the Court GRANTS Defendants’ motion for summary

three times the usual limit.

While the Court agrees that Defendants' summary judgment brief could be

trimmed of some excess and immaterial verbiage, Defendants quite rightly observe that

Plaintiff has named 23 individual officers and the City of Detroit as parties, and that the

claims in this case arise from multiple incidents spanning nearly two years. Indeed,

through its election to file two separate motions for partial summary judgment, Plaintiff

has granted itself the opportunity to submit a total of 46 pages of briefing in support of

these two overlapping motions, and it cannot be expected that Defendants could brief

their single motion in fewer pages, let alone within the usual 25-page limit. Under these

exceptional circumstances, the Court grants Defendants' request to file a 69-page brief

in support of their summary judgment motion. Likewise, the Court grants (i) Plaintiff's

request to file an overlength 60-page brief in opposition to Defendants' motion, and (ii)

Defendants' request to file an overlength 17-page reply brief in further support of their

motion for summary judgment.

 4

At the time of the April 19 hearing, the parties had fully briefed all but one of these

motions, but Plaintiff had not yet filed a reply brief in support of its most recent motion

for partial summary judgment. Nonetheless, Plaintiff's counsel touched upon this

motion at the April 19 hearing, and the Court has since had an opportunity to review and

consider Plaintiff's reply brief in support of this motion. Thus, the Court will address

Plaintiff's most recent motion in the present opinion and order.

3
judgment, and DENIES each of Plaintiff’s three motions for partial summary judgment.

I. FACTS

A. The Parties

Plaintiff ABCDE Operating, LLC operates the Penthouse Club, an adult cabaret

located on Eight Mile Road in Detroit. According to the complaint, the Penthouse Club

“offer[s] adult entertainment including erotic dance to consenting adult[]” patrons. (Fourth

Amended Complaint at ¶ 3.)

Plaintiff’s club is subject to a number of municipal regulations governing sexuallyoriented businesses, (see Defendants’ Motion, Ex. 34, Detroit City Code Article XV),

including such requirements as (i) securing a “valid sexually-oriented business license,” (id.

at § 5-15-21(a)), (ii) ensuring that each employee obtains a “valid sexually-oriented

business employee license” and keeps this license on the premises while the employee is

“working, performing or entertaining,” (id. at §§ 5-15-41(a), 5-15-42(e)), (iii) limiting seminude dancers to performing on a “non-portable fixed stage, on which no patrons are

permitted, that is at least eighteen (18) inches from the floor in a room of at least six

hundred (600) square feet configured and maintained in such a manner that there is an

unobstructed view of every area of the room,” (id. at § 5-15-7(a)(3)), (iv) prohibitions

against intentional contact between semi-nude performers and patrons, (id. at § 5-15-

7(a)(4)), and (v) prohibitions against allowing the business “to become a place for criminal

activity” or allowing “the possession, sale, or use of controlled substances or drug

paraphernalia on the premises,” (id. at §§ 5-15-7(a)(6), 5-15-7(a)(14)).5

 In addition,

 5In a prior suit brought by Plaintiff in 2010, shortly after the Detroit City Council

approved extensive amendments to the regulations governing sexually-oriented

4
because Plaintiff’s club serves alcohol, it must comply with liquor laws and regulations

enacted by the State of Michigan, including statutory provisions mandating that the club (i)

obtain a liquor license, see Mich. Comp. Laws § 436.1501 et seq., (ii) secure a topless

activity permit, see Mich. Comp. Laws § 436.1916, and (iii) make its premises available for

“inspection and search” by an investigator from the Michigan Liquor Control Commission

(“MLCC”) or a law enforcement officer authorized to enforce the MLCC’s regulations, Mich.

Comp. Laws § 436.1217(2). 

The Defendant City of Detroit is a municipal corporation located in Wayne County,

Michigan. Each of the 23 individual defendants is or was employed by the Detroit Police

Department (“DPD”) as a law enforcement officer, and at all pertinent times, James Craig

has served as Detroit’s Chief of Police.6 Shortly after he was appointed to this position in

July of 2013, Chief Craig reinstituted the DPD’s Vice Enforcement Unit (“VEU”), which is

charged with inspecting and investigating suspected illegal activity at a variety of Detroit

commercial establishments, including sexually-oriented businesses, bars, liquor stores, and

gas stations. (See Defendants’ Motion, Ex. 13, Craig Dep. at 6-7.)7 Of the 23 individual

businesses, Judge Cohn of this District upheld these regulations against a constitutional

challenge. See ABCDE Operating, LLC v. City of Detroit, No. 10-13435, 2011 WL

3607072, at *2-*4 (E.D. Mich. Aug. 16, 2011). 

 6

Chief Craig was named as a defendant in Plaintiff’s initial complaint, but he is no

longer a party to this suit.

 7The individual who served as the commanding officer of the VEU following its

reinstatement, Lieutenant Charles Flanagan, testified that he was told by Chief Craig

and some deputy chiefs that this unit had been reconstituted in light of a number of

shootings that had recently occurred in or around “licensed liquor establishments,”

including a “topless bar,” and also because another strip club had been involved in

“human trafficking.” (Defendants’ Motion, Ex. 16, Flanagan Dep. at 16, 30.)

5
DPD officers named as defendants in Plaintiff’s Fourth Amended Complaint, 16 were either

members of the VEU or exercised supervisory authority over VEU officers during the time

period of relevance here. The remaining seven individual defendants were members of the

DPD’s narcotics unit during the relevant time period. 

B. The January 18, 2014 Warrantless Entry into Plaintiff’s Club

Within a short time after the DPD reinstated the VEU, this unit began conducting

enforcement actions at a number of Detroit strip clubs. Plaintiff’s club was not among the

establishments targeted in these initial VEU operations. Nonetheless, on December 5,

2013, an attorney representing the Plaintiff club and other Detroit-based sexually-oriented

businesses wrote a letter to Chief Craig expressing his clients’ “substantial concern” about

the increasing frequency of DPD investigations of adult cabarets and the conduct of the

officers conducting these investigations. (See Dkt. 53, Plaintiff’s Motion for Partial

Summary Judgment, Ex. 10, 12/5/2013 Letter to Chief Craig.)

A few weeks later, on January 18, 2014, the VEU carried out a warrantless

enforcement action at Plaintiff’s club. (See Defendants’ Motion, Ex. 8, 1/18/2014 Activity

Log and Reports.) DPD officers had received reports of illegal drug transactions at the

club, and members of the VEU, along with officers from the DPD’s narcotics unit, were

dispatched to the club to investigate this alleged activity. (See Defendants’ Motion, Ex. 15,

Greer-Travis 7/26/2016 Dep. at 55-56, 58; Ex. 20, Adams Dep. at 28, 30.) Two DPD

officers, Defendant Jason Adams of the VEU and Officer Matthew Bray of the narcotics

unit, entered Plaintiff’s club in an undercover capacity at approximately 11:40 p.m.,8

 and

 8Officer Adams consulted a report he prepared that night to determine this time of

entry, (see Adams Dep. at 20), but the matter is not free from doubt. A video recording

6
took seats at the bar in order to watch for illegal drug transactions and attempt to purchase

narcotics. (See Adams Dep. at 20, 28, 36; Greer-Travis 7/26/2016 Dep. at 30, 48.) Officer

Adams testified that he was in the club for a half hour or less when he signaled for the other

members of the enforcement team to enter. (See Adams Dep. at 21.)

The record evidences a degree of confusion as to the basis for the other officers on

the enforcement team to enter Plaintiff’s club. Officer Adams testified that while he was

seated at the bar, a female employee of the club approached him and solicited him for “an

act of prostitution,” and that he then sent a text message to Sergeant Stacy Greer-Travis,

a supervisory officer in the VEU, calling for the other officers to enter the club. (Id. at 21-

22, 48-49.) Sergeant Greer-Travis testified, in contrast, that the enforcement team entered

the club upon receiving a communication from one of the undercover officers indicating that

he had made a successful purchase of cocaine. (See Greer-Travis 7/26/2016 Dep. at 35,

37, 97-98.) After the team entered the club, however, Sergeant Greer-Travis learned that

this belief was mistaken, and that neither of the undercover officers had succeeded in

purchasing narcotics. (See id. at 37, 98.) Nonetheless, the VEU and narcotics officers

remained on the premises and carried out a number of law enforcement activities.

The parties offer divergent accounts as to the nature and extent of these activities. 

According to Defendants, because the narcotics officers entered Plaintiff’s club with the

understanding that a drug transaction had taken place, they viewed the operation as a

provided by Plaintiff suggests that this entry occurred at some point prior to 11:32 p.m.,

but Plaintiff has indicated that the timestamps on its video recordings are not

necessarily reliable. In addition, the club’s general manager, Edward Muczynski, stated

in an affidavit that he was contacted by phone “[s]hortly after 11:00 p.m.” and told “that

the Club had just been raided.” (Dkt. 52, Plaintiff’s Motion for Partial Summary

Judgment, Ex. 25, Muczynski Aff. at ¶ 6.)

7
“raid” and secured the premises for approximately 10 to 20 minutes until they located the

undercover narcotics officer, Officer Bray, and confirmed that he was safe. (See

Defendants’ Motion, Ex. 28, Geelhood Dep. at 25, 50-51, 54.) The supervisor of the

narcotics unit, Sergeant Stephen Geelhood, testified that he “wasn’t going to let anybody

leave [the club] until” Officer Bray was found and his safety was ensured, but that once this

objective was achieved, he was told by Sergeant Greer-Travis that the club patrons were

free to leave. (Id. at 66-67.) Sergeant Geelhood did not believe that anyone in the club 

could be described as “detained . . . for any amount of time at all” during this process, nor

was he aware that any member of the narcotics unit searched any persons or areas of the

club for illegal drugs; rather, the narcotics officers merely “wait[ed] for the vice [unit] to be

finished” with its activities. (Id. at 49-50.)

As the narcotics officers secured the premises, the VEU officers engaged in a variety

of other activities upon entering the club.9 The female employee who allegedly solicited

Officer Adams was taken into custody and given a ticket for solicitation of prostitution. (See

Adams Dep. at 49; Greer-Travis 7/26/2016 Dep. at 64-66.) One member of the VEU,

Officer Starr Gonzales, proceeded upstairs to the women’s dressing room and began

asking the club’s dancers to produce their dance cards for inspection. (See Defendants’

Motion, Ex. 22, Gonzales 7/29/2015 Dep. at 41-42, 51.) Another officer who accompanied

Officer Gonzales, Officer Amy Matelic of the narcotics unit, ran the names of the dancers

through the Law Enforcement Information Network (“LEIN”) system; Officer Gonzales

 9Sergeant Greer-Travis testified that she would not characterize the VEU’s entry into

Plaintiff’s club as a “raid,” and that the VEU instead views such activities as

“enforcement actions.” (Greer-Travis 7/26/2016 Dep. at 61.)

8
testified that this was done to “make sure [the dancers] d[id]n’t have any outstanding

warrants,” (Gonzales 7/29/2015 Dep. at 51), but Officer Matelic explained that she used the

LEIN system to “make sure that [the dancers] were who they said they were” and to match

each dancer with the name on a dance card or piece of identification, (Defendants’ Motion,

Ex. 29, Matelic Dep. at 26, 36-38).10 Officer Gonzales testified that around 20 dancers

were detained during this process, but that the dancers were advised that they were free

to leave once their identities and dance cards were verified. (See Gonzales 7/29/2015

Dep. at 55-57.)11

Another member of the vice unit, Officer Brian Herndon, testified that upon entering

Plaintiff’s club, he approached the bartenders and wait staff and asked them to produce 

identification and sexually-oriented business licenses. (See Defendants’ Motion, Ex. 24,

Herndon Dep. at 47-48.) Officer Herndon could not recall observing any criminal activity

in the club, nor did he issue any tickets for license violations. (See id. at 54-55, 57.) 

Finally, Officer Allen Williams of the vice unit testified that he was assigned to go upstairs

to the club’s so-called “VIP” rooms, based on information that unlawful drug transactions 

or sexual activity might be occurring in these private areas of the club. (See Defendants’

Motion, Ex. 25, A. Williams Dep. at 34, 46.) Officer Williams stated that he issued a ticket

 10Both officers agreed that the use of the LEIN system was not precipitated by their

observation of criminal activity committed by any of the dancers. (See Gonzales

7/29/2015 Dep. at 52; Matelic Dep. at 27-28.) 

 11The record indicates that two dancers were placed under arrest when it was

determined that they were named in outstanding warrants. (See Defendants’ Motion,

Ex. 8, Activity Log and Reports at 12-13.) A ticket also was issued to a club employee

for failure to produce the required sexually-oriented business license, (see id. at 35), but

it does not appear that this individual was a dancer. 

9
to a club patron who was nude from the waist down, and another ticket to a dancer who

was performing topless in a VIP room. (See id. at 47.)

The general manager of Plaintiff’s club, Edward Muczynski, offers a somewhat

different narrative of the actions taken by the DPD officers at the club that night. Muczynski

states that he drove to the club shortly after 11:00 p.m. upon learning that the facility “had

just been raided,” but that unidentified DPD officers prevented him from pulling into the

club’s main parking lot or walking in the front door. (Dkt. 52, Plaintiff’s Motion for Partial

Summary Judgment, Ex. 25, Muczynski Aff. at ¶¶ 6-8.) Upon entering the club through a

private rear entrance and proceeding to the front entrance, Muczynski observed several

“masked” and “armed” police officers in the first floor seating area, “some with guns pointed

at patrons and [the club’s] servers and security personnel.” (Id. at ¶¶ 10-11.) Muczynski

then advised an unidentified male officer in a uniform bearing a “vice” insignia that he was

the general manager, but this officer pushed him to the side of the first floor bar, ordered

him to remain standing with his back to the wall, and warned him that he would be arrested

and handcuffed if he moved without permission or attempted to use his cell phone. (Id. at

¶¶ 13-16.) Likewise, Muczynski observed that several servers and bartenders also were 

ordered to stand against the wall away from their workstations, and Muczynski was

instructed to tell these workers that “if they moved from the wall they would be handcuffed

and taken into custody.” (Id. at ¶¶ 17-19.)

As Muczynski stood against the wall, he observed “several masked, uniformed and

armed individuals in the main sitting area loudly and repeatedly instructing patrons seated

in that area to remain in their seats.” (Id. at ¶ 20.) Of the approximately 150 patrons at the

club when Muczynski arrived, he witnessed “about fifty patrons” showing identification to

10
the officers, and several of these patrons were frisked during this process. (Id. at ¶ 21.) 

An unidentified, masked officer then “order[ed] the patrons who had been detained in the

main seating area to leave the premises,” and Muczynski was told to “shut up” when he

protested that these patrons “had not been allowed to cash out while the bartenders and

servers were also detained.” (Id. at ¶¶ 22-23.) At approximately 12:30 a.m., over an hour

after Muczynski arrived at the club, an unidentified masked and armed female officer

wearing a uniform with a “vice” insignia allowed the music to be restarted and the club’s

dancers to resume their performances, and Muczynski estimates that “about 75% of the

patrons had been ordered or allowed to leave” by that time. (Id. at ¶¶ 24, 26.)

As the music and dancing resumed, Muczynski went upstairs to the entertainers’

dressing room and observed “about twenty dancers, along with three masked, uniformed

and armed female officers.” (Id. at ¶ 27.) Muczynski witnessed two of these officers

“questioning the entertainers and ordering them to retrieve their purses from their lockers,”

and he further “observed the officers searching through several purses that entertainers

had produced on demand.” (Id. at ¶ 31.) Muczynski then exited the dressing room and

“observed a masked, uniformed officer in one of the VIP rooms, who appeared to be

searching in and around the furniture in that room,” and who then proceeded to search a

second VIP room using a flashlight. (Id. at ¶¶ 32, 35.) Upon returning to the dressing room

shortly before 1:00 a.m., Muczynski found that “fifteen to twenty dancers remained in the

dressing room with one masked female officer,” and soon thereafter, an officer announced

to the dancers in the room that “you should all leave now.” (Id. at ¶¶ 34, 36.) When

Muczynski “asked the dancers not to leave before completing an incident report,” an

unidentified female officer told him to “shut up,” and she directed the dancers to “leave or

11
get tickets, too.” (Id. at ¶¶ 36-37.)

According to Muczynski, the masked DPD officers did not leave the club until around

2:00 a.m. (Id. at ¶ 39.) Thus, Muczynski estimates that the club “was prevented from

conducting its normal business” for roughly three hours, between 11:00 p.m. and 2:00 a.m. 

(Id. at ¶ 40.) He further opines that patrons were prevented from leaving the club for about

20 minutes after he arrived, by virtue of the presence of a “large, masked individual holding

a handgun” who “physically prevented anyone from exiting except other officers.” (Id. at

¶ 42.) In addition, “a substantial majority of the [club’s] dancers were not available to

perform” for over 90 minutes that night, as they had been “ordered to the entertainers’

dressing room and not allowed to leave the room until ordered to leave the premises.” (Id.

at ¶ 43.)

C. The Additional Warrantless Entries into Plaintiff’s Club Following the

Commencement of This Suit

On August 15, 2014, Plaintiff and the operators of two other adult cabarets in Detroit 

brought this suit against Detroit Police Chief James Craig and a number of named and

unnamed Detroit police officers.12 Since that time, the DPD’s VEU has carried out at least

three additional enforcement actions at Plaintiff’s club.13

 12As noted earlier, the two other adult entertainment establishments named in the

initial complaint have been voluntarily dismissed as parties, and Chief Craig likewise is

no longer a party to this suit. Moreover, the City of Detroit and a number of individual

DPD officers have been added as defendants since the commencement of this suit.

 13The last such enforcement action that is discussed in the parties’ summary

judgment briefs occurred on December 3, 2015, but Plaintiff alleges that similar

warrantless entries have occurred since that date. In addition, on March 13, 2015, a

single VEU officer, Officer Holly Reed, was accompanied by officers from the U.S.

Department of Homeland Security in an undercover investigation of suspected sexual

activity occurring in the VIP rooms of Plaintiff’s club, as well as reports of human

12
(i) July 10, 2015

First, on July 10, 2015 at about 7:30 p.m., approximately eight uniformed DPD officers

entered Plaintiff’s club without a warrant. According to the night manager, George E.

Gibson, the officers immediately proceeded to the second floor of the club, after first

instructing an employee to turn off the music. (Dkt. 65, Plaintiffs’ Response, Ex. E, Gibson

Aff. at ¶¶ 6-7.) The officers summoned Gibson to the entertainers’ dressing room, and also

ordered all of the dancers to gather in the dressing room. (Id. at ¶¶ 8-9.) According to

Gibson, approximately 25 dancers were in the dressing room when he arrived, and he also

observed Sergeant Roderick Tucker, Officer Allen Williams, and an unknown female DPD

officer in the room. (Id. at ¶ 10.) Gibson was asked to provide sexually-oriented business

employee licenses for each of the dancers, and he states that the process of verifying

these licenses “took approximately five minutes to complete.” (Id. at ¶ 11.) Nonetheless,

Gibson states that the dancers were detained in the dressing room after their licenses had

been verified, so that the officers could “investigate whether any of the dancers had

warrants out for their arrest.” (Id. at ¶ 12.)

During this investigation, Sergeant Tucker stated to Gibson that “we are going to shut

this place down” and “write a lot of tickets,” and both Sergeant Tucker and Officer Williams

stated that “you should be happy about the tickets, your boss likes going to court.” (Id. at

¶¶ 15, 17.) Gibson also witnessed these two officers “threaten[ing] the dancers with being

jailed for working at” Plaintiff’s club. (Id. at ¶ 18.) In addition, Gibson observed the

trafficking and narcotics. (See Defendants’ Motion, Ex. 9, 3/13/2015 Activity Log and

Report.) The parties touch only briefly on this March 13 incident, and Plaintiff does not

appear to rely on it in support of its claims, so the Court need not address it any further

in this opinion. 

13
unidentified female DPD officer ordering several dancers to retrieve their purses from their

lockers and searching through some of these purses. (Id. at ¶ 20.) The female officer also

inspected the wraps worn by several of the dancers, and issued citations to some of these

dancers for wearing wraps that were not “fully opaque” as mandated under a provision of

the Detroit City Code. (Id. at ¶¶ 21-23.)

Upon leaving the entertainers’ dressing room, Gibson saw two uniformed officers

inspecting one of the club’s VIP rooms. (Id. at ¶ 24.)14 In all, Gibson estimates that the

DPD’s activities that evening prevented the club from conducting its normal business for

about two hours, from shortly after 7:30 p.m. until around 9:30 p.m. (Id. at ¶ 25.)15

(ii) October 24, 2015

At around 6:20 p.m. on October 24, 2015, Officers Allen Williams and Jeffrey Banks

visited Plaintiff’s club, as well as other adult cabarets, to determine whether these

establishments were still operating private “VIP” rooms. (See Defendants’ Motion, Ex. 11,

10/24/2015 Activity Log and Reports at 3; see also Greer-Travis 7/26/2016 Dep. at 107-

 14The activity log and associated reports of the VEU’s activities at the club on the

evening of July 10, 2015 indicate that two individuals, a male patron and a female

employee, were arrested for gross indecency upon being observed engaging in sexual

activity in a VIP room, and that 27 tickets were issued, including five to Gibson, for

violations such as allowing sexual activity on the premises, indecent exposure, improper

contact between patrons and employees, and failure to produce sexually-oriented

business licenses. (See Defendants’ Motion, Ex. 10, 7/10/2015 Activity Log and

Reports.)

 15In contrast, Sergeant Tucker denied at his deposition that he and his fellow officers

disrupted the operation of Plaintiff’s club as they checked the dancers’ licenses that

evening. (See Defendants’ Motion, Ex. 19, Tucker Dep. at 115-16.)

14
09.)16 A male patron and a female dancer were arrested for gross indecency after being

discovered engaging in sexual activity in a VIP room, (see 10/24/2015 Activity Log and

Reports at 5-9), but no other tickets were issued that evening. Gibson was at the club that

night, and he testified that the DPD officers did not order the music turned off or the lights

turned on, nor did they check any dancers’ licenses or disrupt any dancers’ performances

on the club’s stages. (See Defendants’ Motion, Ex. 31, Gibson Dep. at 49-50.) 

(iii) December 3, 2015

The final enforcement action addressed in the parties’ briefs was conducted on

December 3, 2015.17 On this occasion, as on January 18, 2014, Sergeant Jason Adams

of the VEU18 and another officer initially entered Plaintiff’s club in an undercover capacity

to investigate complaints of solicitation and sexual activity in the club’s VIP rooms. (See

Greer-Travis 7/26/2016 Dep. at 112.) At some point between 5:30 and 6:40 p.m., the

undercover officers notified other members of the VEU that they had observed patrons and

dancers entering the club’s VIP rooms and engaging in prohibited conduct, and the

 16As Defendants observe, while Plaintiff identifies several additional Defendant

officers as having participated in this enforcement action at Plaintiff’s club, (see Dkt. 52,

Plaintiff’s Motion for Partial Summary Judgment, Br. in Support at 8), this assertion

apparently rests on a misreading of the VEU activity log for the date in question. 

Although the other officers named by Plaintiff were on duty that day, only Officers

Williams and Banks were in the crew assigned to visit adult cabarets and check on the

status of their VIP rooms. (See 10/24/2015 Activity Log and Reports at 3.) 

 17Just a few days before this enforcement action, the Wayne County Prosecutor

brought a state court suit against Plaintiff’s club on November 24, 2015, seeking a

declaration that the club was a public nuisance and an order closing the club for up to

one year. (See Defendants’ Motion, Ex. 38, Verified Complaint.) So far as the record

discloses, this action remains pending.

 18By the time of this enforcement action, Officer Adams had been promoted to

sergeant.

15
remaining VEU officers on the scene then entered the premises. (See Defendants’ Motion,

Ex. 12, 12/3/2015 Activity Log at 2; Dkt. 52, Plaintiff’s Motion for Partial Summary

Judgment, Ex. 41, 10/17/2016 Evidentiary Hearing Tr. at 10, 19, 78-79.)19

Sergeant Tucker has testified that upon entering Plaintiff’s club, he observed a

number of people smoking cigarettes on the premises, and he then sought out an individual

he believed to be the manager on duty, Mike Fawaz, and issued him a ticket for allowing

smoking in the club. (See 10/17/2016 Evidentiary Hearing Tr. at 13, 15, 19-20.)20 Another

member of the VEU, Officer Donte Jenkins, has testified that when he entered the club that

evening, he first checked the bouncers at the door for firearms and generally “made sure

everybody was safe,” and he then issued a citation to Mr. Fawaz for failing to post his

picture at the club as the manager on duty. (See id. at 31, 33, 37.)21 A third VEU officer,

Officer Banks, was assigned to check the VIP rooms, and he has testified that he issued

 19The club’s general manager, Edward Muczynski, states in his affidavit that ten to

twelve DPD officers entered the premises “[s]hortly after 5:30 p.m.,” (Muczynski Aff. at ¶

45), but Sergeant Tucker and Officer Banks have testified that they entered the club at

around 6:40 p.m., (see 10/17/2016 Evidentiary Hearing Tr. at 10, 67).

 20There is virtually no deposition testimony in the record concerning the activities of

the defendant DPD officers during the December 3, 2015 enforcement action at

Plaintiff’s club. Rather, much of the Court’s account of this incident is derived from the

testimony of certain of the defendant officers at a state court evidentiary hearing in the

criminal proceeding brought against Mike Fawaz arising from the misdemeanor citations

issued to him at the club that evening. As discussed below, in one of its three pending

summary judgment motions, Plaintiff seeks to give preclusive effect to a recent state

court ruling in Mr. Fawaz’s criminal proceeding.

 21Mr. Fawaz testified at the state court evidentiary hearing that he was not, in fact, the

manager on duty at Plaintiff’s club that evening, but that he instead was working as a

doorman/bouncer. (See id. at 96, 101-02.) According to Mr. Fawaz, he notified an

unidentified female DPD officer that he was not the club manager, but she responded

by telling him to “shut up.” (Id. at 104, 107.)

16
citations to a female dancer and a male patron that he discovered in one of these rooms,

as well as to Mr. Fawaz for allowing these violations while he was in charge of the club. 

(See id. at 68-69, 71.)22

Once again, the club’s general manager, Edward Muczynski, has provided a rather

different account of the activities of the DPD officers who entered the club on December

3, 2015. According to Muczynski, two uniformed officers proceeded to the main seating

area immediately after they entered the club, and they instructed the club’s patrons to

“remain in their seats and prepare to produce identification.” (Muczynski Aff. at ¶¶ 46, 48.) 

At least some of the patrons were instructed to produce identification and asked whether

they were carrying guns, and the officers also frisked some of the patrons. (See id. at ¶¶

50-51.) At around the same time, the music was stopped and the dancers were instructed

to report to the second-floor dressing room. (See id. at ¶¶ 48-49.)

About 20 to 30 minutes later, Muczynski was summoned to the dressing room, and

on his way upstairs, he observed two uniformed officers rummaging around the furniture

in one of the VIP rooms and using flashlights to look around this room. (See id. at ¶¶ 52-

53.) Upon arriving in the dressing room, Muczynski saw more than 20 dancers being

questioned by two unidentified female DPD officers, and one dancer who attempted to

leave was told to remain “until I tell you you’re cleared.” (See id. at ¶¶ 55-56.) Over the

next 30 minutes, Muczynski witnessed the female officers ordering dancers to retrieve their

purses from their lockers and inspecting the contents of the purses. (See id. at ¶ 56.)

 22The record indicates that citations also were issued to patrons and dancers that

evening for such infractions as improper contact between a patron and a dancer and

performing at a location other than a fixed stage in an open area. (See Defendants’

Motion, Ex. 12, 12/3/2015 Activity Log and Citations.)

17
According to Muczynski, the club’s patrons were unable to leave for about 30 minutes

after the DPD officers entered the premises. (See id. at ¶ 60.) He states that police

officers were in control of the club from roughly 6:00 to 7:30 p.m. and that the club was

prevented from conducting its normal business during this 90-minute period, particularly

since most of the dancers were kept in the entertainers’ dressing room “[f]or more than an

hour” and were “not allowed to leave.” (Id. at ¶¶ 58-59, 61.) Muczynski estimates that

about 80 patrons were at the club when the police arrived, but that only about 20 patrons

remained on the premises by the time the officers left. (See id. at ¶ 62.) 

II. STANDARD OF REVIEW

Through the present cross-motions, Plaintiff and Defendants seek an award of

summary judgment in their favor on some or all of the claims asserted by Plaintiff against

the Defendant City of Detroit and the individual Defendant police officers.23 Under the

pertinent Federal Rule governing these cross-motions, summary judgment is proper “if the

movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). As the Supreme Court has

explained, “the plain language of Rule 56[] mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on

 23Defendants characterize their motion as brought in part under Fed. R. Civ. P.

12(b)(6), and as seeking the dismissal of certain of Plaintiff's claims for failure to state a

claim upon which relief can be granted. Because this motion was filed after the close of

discovery, and because the parties' briefs in support of and in opposition to this motion

are accompanied by voluminous exhibits that the Court has reviewed and considered in

resolving Defendants' motion, the Court views this motion as more properly analyzed

under the standards governing a motion for summary judgment. 

18
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322, 106 S. Ct. 2548, 2552 (1986).

To the extent that a party — here, Plaintiff — seeks an award of summary judgment

in its favor on an issue or claim as to which that party bears the burden of proof, the moving

party’s “showing must be sufficient for the court to hold that no reasonable trier of fact could

find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th

Cir. 1986) (internal quotation marks, citation, and emphasis omitted). Regardless of the

allocation of the burden of proof, the central issue under Rule 56 is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986).

In deciding a motion brought under Rule 56, the Court must view the evidence “in a

light most favorable to the party opposing the motion, giving that party the benefit of all

reasonable inferences.” Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d

854, 861 (6th Cir. 2007). Yet, the nonmoving party may not rely on bare allegations or

denials, but instead must support a claim of disputed facts by “citing to particular parts of

materials in the record, including depositions, documents, electronically stored information,

affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). Moreover, any supporting or opposing affidavits

“must be made on personal knowledge, set out facts that would be admissible in evidence,

and show that the affiant or declarant is competent to testify on the matters stated.” Fed.

19
R. Civ. P. 56(c)(4).24 Finally, “[a] mere scintilla of evidence is insufficient” to withstand a

summary judgment motion; rather, “there must be evidence on which the jury could

reasonably find for the non-moving party.” Smith Wholesale, 477 F.3d at 861 (internal

quotation marks and citation omitted).

III. ANALYSIS 

A. Plaintiff’s Fourth Amendment Claims of Unlawful Warrantless Entries and

Unreasonable Searches and Seizures.

The four counts of Plaintiff’s fourth amended complaint do not set forth discrete

theories of recovery, but instead are distinguished solely by the form of relief they seek: 

Count One seeks declaratory relief, Count Two requests permanent injunctive relief, and

Counts Three and Four seek awards of compensatory damages. Thus, as Defendants

aptly observe, while Plaintiff complains of “many types of unlawful actions” in which

Defendants allegedly engaged, “it is not always clear” which of Plaintiff’s constitutionally

 24Plaintiff has filed motions to strike certain of the exhibits accompanying Defendants’

summary judgment motion and their responses in opposition to Plaintiff’s two motions

for partial summary judgment. In support of these motions to strike, Plaintiff argues (i)

that Defendants seek to rely on affidavits that include assertions made without the

requisite personal knowledge of the affiants, and (ii) that Defendants cite to materials

that consist of hearsay or are otherwise ineligible for the Court’s consideration in

resolving the parties’ summary judgment motions.

The Court acknowledges that certain of the materials submitted by Defendants

— and by Plaintiff, for that matter — are problematic in their reliance on hearsay or on

matters that seemingly lie outside the personal knowledge of the witnesses in question. 

Nonetheless, rather than issuing a detailed ruling on Plaintiff’s motions to strike and

specifying precisely which of Plaintiff’s objections are well taken and which are not, the

Court instead will resolve the parties’ summary judgment motions solely by reference to

those portions of the record that are eligible for consideration under the standards of

Rule 56, and will disregard all other portions of the record. The Court is confident that

its rulings in the present opinion, and the materials on which it has relied in making

these rulings, fully comport with the legal standards governing summary judgment

motions. 

20
protected rights were violated as a result of these allegedly unlawful activities. 

(Defendants’ Motion, Br. in Support at 28.) In an effort to overcome this difficulty,

Defendants analyze each form of allegedly unlawful conduct in light of the constitutional

protection that this conduct seemingly implicates or infringes. The Court will do likewise,

beginning with the actions of the Defendant officers that implicate the Fourth Amendment

protections against warrantless entries and unreasonable searches and seizures.

At the outset of its Fourth Amendment analysis, the Court emphasizes the points of

law on which the parties agree. First, all are agreed that the Fourth Amendment’s

protections against warrantless entries and unreasonable searches and seizures apply to

commercial establishments such as Plaintiff’s club. See Marshall v. Barlow’s, Inc., 436

U.S. 307, 311-12, 98 S. Ct. 1816, 1819-20 (1978) (holding that “[t]he Warrant Clause of the

Fourth Amendment protects commercial buildings as well as private homes,” and that the

presumption “that warrantless searches are generally unreasonable” likewise “applies to

commercial premises as well as homes”); See v. City of Seattle, 387 U.S. 541, 543, 87 S.

Ct. 1737, 1739 (1967) (“The businessman, like the occupant of a residence, has a

constitutional right to go about his business free from unreasonable official entries upon his

private commercial property.”) The parties further recognize, however, that a “search”

within the meaning of the Fourth Amendment occurs only “when an expectation of privacy

that society is prepared to consider reasonable is infringed,” and that a business owner or

operator has no such “reasonable expectation of privacy in areas of [a commercial

establishment] where the public [i]s invited to enter and to transact business.” Maryland

v. Macon, 472 U.S. 463, 469, 105 S. Ct. 2778, 2782 (1985) (internal quotation marks and

citations omitted). Thus, “[w]hat is observable by the public is observable, without a

21
warrant, by the Government inspector as well.” Marshall, 436 U.S. at 315, 98 S. Ct. at

1822 (footnote with citation omitted); see also Kyllo v. United States, 533 U.S. 27, 32, 121

S. Ct. 2038, 2042 (2001) (explaining that “visual observation” from a location where the

observer is entitled to be “is no ‘search’ at all”). With these threshold principles in mind, the

Court turns to the specific activities challenged by Plaintiff in this case.

1. The Entries into Plaintiff’s Club Without a Warrant

As recounted above, the VEU carried out four enforcement actions at Plaintiff’s club

during the time frame of relevance to this suit. On each of these occasions, the VEU

officers neither sought nor obtained a warrant that authorized their entry into the club or a

search of the premises. Nonetheless, Defendants insist that no warrant was necessary, 

because each entry occurred when the club was open to the public. The Court agrees.

In 1064 Old River Road, Inc. v. City of Cleveland, No. 04-3541, 137 F. App’x 760, 762

(6th Cir. June 2, 2005), the plaintiff dance clubs asserted Fourth Amendment and equal

protection challenges to the defendant city’s inspections of their establishments. The

district court granted summary judgment in the city’s favor on each of the plaintiffs’ claims,

and the Sixth Circuit affirmed. Regarding the Fourth Amendment claims, the court found

that the clubs had not been searched within the meaning of the Fourth Amendment,

explaining that “[s]ince the clubs were open to the public at the time the inspections

occurred, they had no expectation of privacy, and the [city] inspectors, no less than

ordinary patrons, were free to enter the clubs and observe all that was within plain view.” 

1064 Old River Road, 137 F. App’x at 766.

The same result is warranted here. There is no dispute that at the time of each entry

at issue, Plaintiff’s club was open to the public. Accordingly, the DPD officers involved in

22
each entry, “no less than ordinary patrons, were free to enter the club[] and observe all that

was within plain view.” 137 F. App’x at 766.25 To be sure, Plaintiff contends that upon

entering the club, the officers did not confine themselves to “areas open to the public,” but

also looked in places that were not “within plain view,” 137 F. App’x at 766 — most notably,

the club’s VIP rooms. The Court addresses this question below. As to Plaintiff’s threshold

challenge that the Defendant officers could not lawfully enter Plaintiff’s club without a

warrant, the law is clear that no warrant was required under the circumstances presented

here.

In a recent motion, however, Plaintiff argues that the Defendant City and certain of the

Defendant officers should be precluded from litigating the lawfulness of the December 3,

2015 warrantless entry into Plaintiff’s club. In support of this contention, Plaintiff points to

a state court order dismissing the misdemeanor charges brought against a club employee,

Mike Fawaz, for alleged violations uncovered by VEU officers in the course of the

December 3, 2015 enforcement action. In Plaintiff’s view, the Michigan law of issue

preclusion — sometimes referred to as collateral estoppel — prevents the Defendant City

 25In the January 18, 2014 and December 3, 2015 enforcement actions, undercover

DPD officers entered Plaintiff’s club in advance of the remaining officers on the scene. 

This makes no difference to the Court’s analysis, however, because it remains the case

that Plaintiff had no “reasonable expectation of privacy in areas of the [club] where the

public was invited to enter and to transact business.” Macon, 472 U.S. at 469, 105 S.

Ct. at 2782. Indeed, in Macon itself, undercover detectives entered an adult bookstore

and purchased magazines that were used to support the defendant’s arrest and

conviction, but the Supreme Court held that the magazines were not subject to

suppression because they were not obtained pursuant to a search or seizure within the

meaning of the Fourth Amendment. See Macon, 472 U.S. at 467-71, 105 S. Ct. at

2781-83. In so ruling, the Court observed that “[t]he use of undercover officers is

essential to the enforcement of vice laws,” and emphasized that “[a]n undercover officer

does not violate the Fourth Amendment merely by accepting an offer to do business

that is freely made to the public.” Macon, 472 U.S. at 470, 105 S. Ct. at 2782. 

23
and the three Defendant officers who issued the misdemeanor citations to Mr. Fawaz from

relitigating the issues decided by the state court in its ruling dismissing these charges. The

Court cannot agree.

Under well-established principles, this Court must apply Michigan’s law of issue

preclusion in order to determine the preclusive effect of the state court’s ruling upon

Plaintiff’s federal constitutional claims in this action. See, e.g., Darrah v. City of Oak Park,

255 F.3d 301, 311 (6th Cir. 2001); Strutz v. Hall, 308 F. Supp.2d 767, 775 (E.D. Mich.

2004). The Michigan Supreme Court has identified three prerequisites to the application

of the doctrine of issue preclusion:

(1) a question of fact essential to the judgment must have been actually litigated

and determined by a valid and final judgment; (2) the same parties must have

had a full and fair opportunity to litigate the issue; and (3) there must be

mutuality of estoppel.

Monat v. State Farm Insurance Co., 469 Mich. 679, 677 N.W.2d 843, 845-46 (2004)

(internal quotation marks, alterations, footnotes, and citation omitted). The third of these

prerequisites, in turn, entails a showing that the party to be estopped was “a party, or in

privy to a party, in the previous action.” Monat, 677 N.W.2d at 846 (internal quotation

marks and citations omitted). Mutuality of estoppel is not required, however, where issue

preclusion is “asserted defensively against a party who has already had a full and fair

opportunity to litigate the issue.” Monat, 677 N.W.2d at 852.26

 26Issue preclusion is invoked “defensively” when a defendant seeks to preclude a

plaintiff from relitigating an issue “that the plaintiff ha[s] previously litigated and lost

against another defendant.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.

Ct. 645, 650 (1979); see also Lewis v. City of Detroit, No. 09-14792, 2011 WL 2084067,

at *2 (E.D. Mich. May 24, 2011). The doctrine is used “offensively,” in contrast, when “a

plaintiff is seeking to estop a defendant from relitigating [an] issue[] which the defendant

previously litigated and lost against” another party in an earlier action. Parklane

24
In this case, Plaintiff is seeking to invoke the doctrine of issue preclusion offensively

— that is, to preclude the Defendant City and three of the Defendant officers from

relitigating an issue that purportedly was decided against these Defendants in the state

court proceeding brought against Mr. Fawaz. Accordingly, Plaintiff must satisfy all three

of the above-cited prerequisites, including the requirement of mutuality of estoppel. As a 

number of courts have held, however, police officers are not deemed under Michigan law

to be in privity with the prosecution in a state criminal proceeding. See, e.g., Hardesty v.

Hamburg Township, 461 F.3d 646, 651 (6th Cir. 2006); Von Herbert v. City of St. Clair

Shores, No. 02-1063, 61 F. App’x 133, 136 n.1 (6th Cir. March 11, 2003); Burda Brothers,

Inc. v. Walsh, No. 00-1418, 22 F. App’x 423, 430 (6th Cir. Oct. 12, 2001); Lewis, 2011 WL

2084067, at *3-*4; Strutz, 308 F. Supp.2d at 775-76. “Among the grounds cited in support

of this conclusion, the courts have reasoned that police officers lack a personal stake in the

outcome of a criminal prosecution, and thus do not have an incentive or opportunity to fully

and fairly litigate any issues concerning their conduct during the course of such a

proceeding.” Strutz, 308 F. Supp.2d at 776.27 Consistent with this uniform weight of

Hosiery, 439 U.S. at 329, 99 S. Ct. at 650; see also Lewis, 2011 WL 2084067, at *3. 

 27Plaintiff suggests that this case law is distinguishable because each of the

misdemeanor complaints issued against Mr. Fawaz was signed and filed in state court

by one of the Defendant officers. According to Plaintiff, these filings alone were

sufficient under Michigan law to initiate criminal proceedings against Mr. Fawaz, without

the need for a prosecuting attorney to intervene or authorize these proceedings. It

follows, in Plaintiff’s view, that the three officers who filed these complaints should be

deemed in privity with the prosecution in Mr. Fawaz’s criminal proceedings.

The Court is not persuaded. First and foremost, Plaintiff has failed to cite even a

single case in which issue preclusion was applied offensively to prevent a police officer

who testified or was otherwise involved in a prior criminal proceeding from relitigating

the lawfulness of the officer's conduct in a subsequent civil suit brought against the

25
authority, the Court finds the Defendant police officers in this case are not precluded from

litigating the lawfulness of their December 3, 2015 warrantless entry into Plaintiff’s club.28

Moreover, if — as the Court has now held — the rulings of the state court in Mr.

Fawaz’s criminal proceeding are not entitled to preclusive effect in resolving Plaintiff’s

Fourth Amendment claims against the individual Defendant officers, Defendants correctly

observe that it would be “anomalous and illogical” to give these rulings preclusive effect as

officer. This absence of supporting case law is not surprising, given the courts’

recognition that police officers “lack a stake in the outcome of a criminal prosecution.” 

Strutz, 308 F. Supp.2d at 776; see also Burda Brothers, 22 F. App’x at 430; Glass v.

Abbo, 284 F. Supp.2d 700, 705 (E.D. Mich. 2003).

Even assuming the three Defendant officers arguably had a somewhat greater

interest in the outcome of Mr. Fawaz’s criminal prosecution by virtue of having filed the

complaints that triggered this prosecution, they still lacked any apparent personal

incentive to litigate any challenges to their conduct that Mr. Fawaz might have pursued

in the criminal proceedings. Nor is there any indication in the record that these officers

exercised any control over the prosecutor in Mr. Fawaz’s criminal case, such that they

would have had an opportunity to present arguments or evidence supporting the

lawfulness of their conduct. Accordingly, the Court declines Plaintiff’s invitation to

expand the boundaries of issue preclusion beyond the limits consistently recognized in

the relevant Michigan case law.

 28In light of this conclusion, the Court need not address Defendants’ contentions (i)

that the state court in Mr. Fawaz’s criminal proceeding did not actually rule on the

lawfulness of the December 3, 2015 warrantless entry into Plaintiff’s club, and (ii) that

even if the state court did so, this ruling was not essential to the ultimate disposition of

the charges against Mr. Fawaz.

Notably, even assuming the state court did decide this issue, this would not

necessarily satisfy the “identity of issues” prerequisite to the application of issue

preclusion. Rather, because the Defendant officers have asserted a qualified immunity

defense, the issue before this Court is not simply the lawfulness of the officers'

warrantless entry into Plaintiff’s club, but instead is “whether an objectively reasonable

officer in Defendants’ position could have believed it permissible to enter [the club]

without a warrant.” Strutz, 308 F. Supp.2d at 775. “This lack of exact identity of issues

precludes the application of [issue preclusion] here.” Strutz, 308 F. Supp.2d at 775

(citations omitted).

26
to Plaintiff’s claims against the Defendant City. (Dkt. 77, Defendants’ Response Br. at 17.) 

For one, if the Defendant officers are able to demonstrate that they did not violate Plaintiff’s

constitutional rights, the City likewise would ordinarily be free from liability. See Watkins

v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001). Yet, the application of issue

preclusion might lead to the logically inconsistent conclusion that the City is liable for a

constitutional violation that no individual Defendant officer committed. Moreover, there

again is a lack of identity as to the issues arguably decided in Mr. Fawaz’s criminal

proceeding and the issues bearing on the Defendant City’s liability in this suit, where the

City is liable for a violation of Plaintiff’s constitutional rights only if this violation resulted

from the “execution of a [City of Detroit] policy or custom.” Gregory v. Shelby County, 220

F.3d 433, 441 (6th Cir. 2000). Because no such question of municipal policy or custom

was presented in Mr. Fawaz’s criminal proceeding, it follows that the state court’s rulings

cannot foreclose the Defendant City from arguing that it should be free from liability in this

case. The Court therefore rejects Plaintiff’s appeal to issue preclusion arising from the

state court’s decision to dismiss the criminal charges brought against Mr. Fawaz.

2. The Manner of the Defendant Officers’ Entries into Plaintiff’s Club

In addition to challenging the legality of the warrantless entries into its club, Plaintiff

takes issue with the manner in which these entries were made. In particular, Plaintiff

suggests that these entries were rendered unlawful by virtue of (i) the number of officers

involved, (ii) the officers being armed, (iii) the officers wearing masks, and (iv) the use of

force while entering the club. The Court addresses each of these contentions in turn.

a. Number of Officers Involved

27
First, while Defendants prefer to characterize the entries at issue as enforcement

actions, Plaintiff points to the number of officers involved as indicative that Defendants were

actually engaged in raids designed to uncover evidence of criminal activity. Most notably,

the record discloses that thirteen uniformed and two uncover officers participated in the

January 18, 2014 entry into Plaintiff’s club. In Plaintiff’s view, this large number of officers

belies Defendants’ assertion that warrants were not required to make the entries at issue. 

Indeed, Plaintiff notes that at least some of the officers involved in the January 18 entry

described this incident as a “raid.” (See, e.g., Geelhood Dep. at 54.)

Under the record presented here, the Court finds that the number of officers involved

in the warrantless entries into Plaintiff’s club does not give rise to an issue of fact as to the

lawfulness of these entries. First, the case law is clear that police officers do not need a

warrant to enter a commercial establishment that is open to the public, see Macon, 472

U.S. at 469, 105 S. Ct. at 2782; 1064 Old River Road, 137 F. App’x at 766, and nothing in

these rulings — nor in any other case identified by Plaintiff — suggests that this rule is

limited to only the first few officers who enter the establishment. Next, it is immaterial

whether some of the entering officers might have thought they were engaged in a raid,

because the subjective beliefs of particular officers play no role in assessing the lawfulness

of police conduct under the Fourth Amendment. See Whren v. United States, 517 U.S.

806, 812-13, 116 S. Ct. 1769, 1774 (1996).

Even assuming that the number of officers involved could trigger a Fourth Amendment

inquiry into the reasonableness of the manner of entry into Plaintiff’s club, the Court agrees

with Defendants that the number of officers who participated on each occasion at issue was

reasonable as a matter of law. As noted, the largest force was involved in the January 18,

28
2014 entry, which was precipitated by reports of illegal drug transactions at Plaintiff’s club. 

(See Greer-Travis 7/26/2016 Dep. at 58.) Due to these complaints of drug-related activity,

seven VEU officers were accompanied by eight members of DPD’s narcotics unit, which

essentially doubled the size of the force that entered the club that evening. Sergeant

Greer-Travis of the VEU testified that these additional narcotics officers were needed to

“[h]elp us secure the location,” and to assist in investigating in the event that illegal drugs

were found at the club. (See id. at 56.) Moreover, Defendants point to reports in the record

of alleged shootings and assaults at Detroit adult cabarets,29 and they correctly observe

that this heightened risk warranted a larger entry force to ensure the safety of the officers,

club patrons, and employees.

Finally, it bears emphasis that Plaintiff’s club spans two floors, was serving

approximately 150 patrons on the evening of January 18, 2014, and had at least 20

dancers on the premises that evening, along with other club employees. Against this

backdrop, it cannot be said that the participation of 15 officers mandates special Fourth

Amendment scrutiny of a law enforcement operation that otherwise could have been

conducted without a warrant. Moreover, the other entries at issue in this case involved nine

officers (on July 10, 2015), two officers (on October 24, 2015), and ten officers (on

 29As noted earlier, Plaintiff has filed a motion to strike various exhibits accompanying

Defendants’ summary judgment motion, and these reports are among the exhibits that

Plaintiff has identified as purportedly ineligible for consideration in resolving Defendants’

motion. Specifically, Plaintiff contends that these reports consist largely of inadmissible

hearsay, and it also questions the reliability of the information contained in the reports. 

As Defendants observe, however, these reports may be considered for the limited nonhearsay purpose of showing the state of mind of the Defendant officers as they

prepared to enter Plaintiff’s club — that is, to show the officers’ awareness of reports of

past dangerous activities occurring at Plaintiff’s club and other Detroit adult cabarets.

29
December 3, 2015), and Plaintiff again has cited no law suggesting that a force of this size

must secure a warrant before entering a commercial establishment that is open to the

public. 

b. Armed Officers

Plaintiff next observes that each of the DPD officers who entered its club was armed, 

contending that this is suggestive of an intent to search for evidence of criminal activity. 

The record discloses, however, that DPD officers are required to carry their weapons in the

course of their duties, (see, e.g., Herndon Dep. at 96), so the carrying of weapons during

the warrantless entries at issue here says nothing about the purpose of those entries.

The record further reflects that during the January 18, 2014 operation, Officer Tourville

of the narcotics unit carried a shotgun as he entered Plaintiff’s club. (See Defendants’

Motion, Ex. 30, Tourville Dep. at 9-10.) Officer Tourville testified that he maintained this

weapon in a “high ready” position “in case I have to use it in defense of myself or my crew

if encountering a threat.” (Id.)

30 Another member of the narcotics unit, Officer Reginald

Beasley, similarly testified that the officers are trained to keep shotguns “at a high position,”

particularly “when you’re in a crowded place,” so that the weapon could be quickly aimed

and fired if necessary and is less likely to be “knock[ed] . . . down,” and he confirmed that

this is done for purposes of “safety.” (Defendants’ Motion, Ex. 27, Beasley Dep. at 32-33.) 

Plaintiff does not contend that the January 18, 2014 warrantless entry was rendered

 30Plaintiff has produced video recordings that show the interior entrance portion of the

club on the evening of January 18, 2014. (See Dkt. 52, Plaintiff’s Motion for Partial

Summary Judgment, Exs. 2, 3A.) Although these recordings disclose an officer

entering the club with a shotgun, they neither support nor contradict Officer Tourville’s

testimony that he kept his weapon in a “high ready” position.

30
unlawful as a result of a single narcotics officer carrying a shotgun, nor does it cite any

case law in support of this proposition. Moreover, there is no evidence that any Defendant

officer carried a shotgun during any of the other entries at issue in this case.

To be sure, the club’s general manager, Edward Muczynski, states in an affidavit that

some of the officers who participated in the January 18, 2014 operation had their “guns

pointed at patrons and our servers and security personnel.” (Muczynski Aff. at ¶ 11.) Yet,

he has not identified these officers, and the record sheds no light on this question. It is a

well-established principle of federal § 1983 law that “[e]ach defendant’s liability must be

assessed individually based on his own actions.” Binay v. Bettendorf, 601 F.3d 640, 650

(6th Cir. 2010). Thus, even assuming an officer who participated in the January 18, 2014

warrantless entry might have pointed his or her weapon at a club employee, Plaintiff’s

inability to say which officer might have done so forecloses the imposition of liability on any

individual Defendant officer arising from this conduct.31

c. Officers Wearing Masks

Next, Plaintiff seeks to cast doubt on the lawfulness of the Defendant officers’

warrantless entries into its club by noting that the officers were wearing masks during the

January 18, 2014 operation.32 As several VEU officers have explained, however, the

members of this unit wore masks in order to conceal their identities in case they were called

 31The Defendant City could be charged with liability for this conduct, provided that

Plaintiff is able to forge a causal connection between this alleged violation and a

municipal policy or custom. The Court addresses this question below.

 32By the time of the later entries into Plaintiff’s club, the VEU had changed its practice

and its members no longer wore masks during enforcement actions. (See Tucker Dep.

at 114; Herndon Dep. at 24-25.)

31
upon to participate in future undercover operations. (See, e.g. Defendants’ Motion, Ex. 16,

Flanagan 11/8/2016 Dep. at 44; A. Williams Dep. at 37-38; see also Tourville Dep. at 22-23

(testifying that narcotics officers wore masks for the same reason).) Again, Plaintiff has not

cited any authority for the proposition that a warrantless entry is rendered especially

problematic under the Fourth Amendment if the officers are wearing masks. To the

contrary, Defendants cite a case upholding a warrantless entry into a pool hall where

“[a]pproximately seven of the[] twenty-three officers wore black ski masks.” Ruttenberg v.

Jones, 603 F. Supp.2d 844, 854 (E.D. Va. 2009).

d. Forcible Entry

As its final challenge to the manner in which the Defendant officers entered its club,

Plaintiff contends that the officers employed a “dynamic” entry technique and “stormed” the

premises on January 18, 2014, and perhaps also on December 3, 2015, moving rapidly and

using a show of force that, in Plaintiff’s view, is inconsistent with a lawful warrantless entry. 

The Defendant officers, however, have uniformly testified that they did not forcibly enter

Plaintiff’s club on January 18, 2014, (see, e.g., Geelhood Dep. at 26-29; Gonzales

9/18/2015 Dep. at 5-7), and the video recordings submitted to the Court do not suggest

otherwise. To the contrary, these recordings reveal that the officers entered the club in an

orderly and controlled manner, without running, brandishing any weapons, or shoving

anyone out of the way. Neither is there any evidence of a forcible entry on December 3,

2015, apart from the statement of Plaintiff’s employee, George Gibson, that “approximately

eight uniformed officers of the Detroit Police Department rush[ed] through the vestibule” of

the club and “push[ed] their way past the doorman” that evening. (Gibson Aff. at ¶ 6.)

The modest measures identified by Gibson do not rise to the level of a forcible entry,

32
and Plaintiff cites no authority that would indicate otherwise. In addition, Plaintiff has not

identified any specific Defendant officer who employed force in entering the club, so there

is no basis in the record for imposing liability on any individual Defendant for any purported

Fourth Amendment violation arising from the degree of force used in entering Plaintiff’s

club. Accordingly, this challenge to the manner of the Defendant officers’ warrantless

entries into Plaintiff’s club, like the other similar challenges advanced by Plaintiff, provides

no basis for imposing liability on any Defendant officer for a Fourth Amendment violation.

3. The Detention and Search of Club Patrons

Plaintiff next contends that the Defendant City and the individual Defendant officers

violated the Fourth Amendment by detaining and searching patrons at Plaintiff’s club during

the January 18, 2014 and December 3, 2015 enforcement actions, and thereby disrupting

the club’s business on those evenings. As Defendants observe (and Plaintiff does not

dispute), Plaintiff cannot vicariously assert the personal Fourth Amendment rights of

individual club patrons to be free from unreasonable searches and seizures. See, e.g.,

Hamilton v. Lokuta, No. 92-2361, 1993 WL 460784, at *3 (6th Cir. Nov. 9, 1993); Crosby

v. Paulk, 187 F.3d 1339, 1345 n.10 (11th Cir. 1999); Ellwest Stereo Theatres, Inc. v.

Wenner, 681 F.2d 1243, 1248 (9th Cir. 1982). Nonetheless, Plaintiff correctly points out

(and Defendants concede) that the Fourth Amendment protects against unreasonable

governmental intrusions upon Plaintiff’s operation of its business, see, e.g., Colonnade

Catering Corp. v. United States, 397 U.S. 72, 77, 90 S. Ct 774, 777 (1970); See, 387 U.S.

at 543, 87 S. Ct. at 1739, and Plaintiff argues that it has produced evidence in this case of

such unlawful interference with its club’s operations.

Turning first to the January 18, 2014 warrantless entry, while Defendants deny that

33
any patrons were searched, (see, e.g., Greer-Travis 7/26/2016 Dep. at 63; Geelhood Dep.

at 37, 49), the club’s general manager, Edward Muczynski, states that he witnessed “about

fifty patrons” showing identification to unidentified police officers and “several” of these

patrons being frisked, (Muczynski Aff. at ¶ 21). Similarly, there is a dispute in the record

as to how long patrons were detained and how much time passed before the club was

allowed to resume its entertainment and service to its patrons. Defendants acknowledge

that the club’s patrons “were briefly prevented from leaving the Club . . . while the narcotics

officers conducted their drug investigation,” but they maintain that the video recording of

the club entrance reveals that “patrons were entering and exiting the premises as normal”

within approximately 20 minutes after the DPD officers entered the club. (Defendants’

Motion, Br. in Support at 18.) Defendants also cite the testimony of the Defendant officers

that the club’s music and dance performances were halted for only about 15 or 20 minutes. 

(See Beasley Dep. at 89-90; Adams Dep. at 61.) Muczynski, in contrast, states (i) that

several unidentified officers “loudly and repeatedly instruct[ed] patrons . . . to remain in their

seats,” (ii) that some of these unidentified officers had “guns pointed” at the patrons and

club employees, and (iii) that after about 30 minutes, an unidentified officer ordered “the

patrons who had been detained in the main seating area to leave the premises.” 

(Muczynski Aff. at ¶¶ 11, 20, 22.) Muczynski further states that it was over an hour before

the DPD officers allowed the music to be restarted and the dancers to resume their

performances, and he estimates that “about 75% of the patrons had been ordered or

allowed to leave” by that time. (Id. at ¶¶ 24, 26.)

While the question is a close one, the Court finds as a matter of law that Plaintiff’s

Fourth Amendment rights were not violated as a result of the January 18, 2014 detention

34
of club patrons and disruption of service to these patrons. First, Defendants correctly point

out that the DPD officers who entered the club that night were entitled, consistent with the

Fourth Amendment, to temporarily detain club patrons and employees in order to secure

the premises and ensure the safety of the officers, patrons, and club employees while

investigating a suspected drug transaction. See Michigan v. Summers, 452 U.S. 692, 702-

03, 101 S. Ct. 2587, 2594 (1981); Baker v. Monroe Township, 50 F.3d 1186, 1191-92 (3d

Cir. 1995).33 As for the length of the detention and the disruption of service to Plaintiff’s

customers, the Court must accept as true, for present purposes, the evidence that patrons

were detained for at least 30 minutes, that some of them were asked for identification and

frisked, and that the club was prevented for over an hour from resuming its normal

operations. Nonetheless, Defendants cite cases in which the courts have upheld

comparable detentions and business disruptions against Fourth Amendment challenges. 

See, e.g., Palacios v. Burge, 589 F.3d 556, 559, 565 (2d Cir. 2009) (finding that a detention

was reasonably “limited in duration” in order to investigate a stabbing, where police officers

instructed a nightclub owner to stop the music and carried out a 40-minute process of

escorting all male patrons out of the club and walking them one-by-one past a witness to

 33In its response to Defendants’ motion, Plaintiff insists that Defendants’ appeal to a

suspected drug transaction is an unsupported post hoc rationalization of the January

18, 2014 warrantless entry into Plaintiff’s club. (See Dkt. 65, Plaintiff’s Response Br. at

3-5.) Yet, Sergeant Greer-Travis has testified that she directed her fellow officers to

enter the club upon receiving a communication from one of the undercover officers that

she understood as indicating that the officer had successfully purchased cocaine. (See

Greer-Travis 7/26/2016 Dep. at 35, 37, 97-98.) Although Sergeant Greer-Travis

conceded that this understanding was mistaken, and that there had been no such

successful purchase, (see id. at 37, 98), nothing in the record contradicts her testimony

as to the belief of the DPD officers, upon their entry into the club, that a drug transaction

had occurred. Plaintiff cites no authority suggesting that the officers acted unlawfully by

operating under this assumption until they learned it was mistaken. 

35
the stabbing); Baker, 50 F.3d at 1192 (upholding the 25-minute detention of visitors to the

site of a drug raid); Ruttenberg, 603 F. Supp.2d at 866 (finding that a 54-minute search of

a pool hall was not “unduly prolonged,” and explaining that by “approximately halfway

through” this search, “patrons generally either resumed playing pool or left” the premises).34

The cases relied upon by Plaintiff, in contrast, are readily distinguishable. In Bruce

v. Beary, 498 F.3d 1232, 1244-48 (11th Cir. 2007), the court held that a warrantless

administrative inspection of an auto repair shop was unreasonable in its execution, where

it “was conducted by 20 officers over a period of eight hours,” the officers “entered the

[body shop’s] office with automatic shotguns and sidearms drawn,” and they “searched and

detained employees.” Likewise, the warrantless nightclub raid under consideration in Club

Retro, L.L.C. v. Hilton, 568 F.3d 181, 191 (5th Cir. 2009), was carried out by forty police

officers, “some outfitted in full S.W.A.T. gear and black ski masks,” who “stormed [the club]

with shotguns, AR-15 assault rifles, and pistols drawn and pointed at both patrons and

employees.” That case also featured allegations (i) that one employee was “pushed to the

ground with a gun pointed at her head,” another employee was “thrown to the ground[] and

stepped on,” a third employee “was hit on the head with a rifle butt,” and other staff

members were handcuffed, (ii) that “every patron and employee” was searched and most

 34The Court recognizes the Fourth Amendment concerns implicated by the frisking of

club patrons, absent any evidence of individualized suspicion that these patrons might

be armed or involved in criminal activity. See Ybarra v. Illinois, 444 U.S. 85, 90-96, 100

S. Ct. 338, 341-45 (1979); Hamilton, 1993 WL 460784, at *3-*4. As explained earlier,

however, Plaintiff cannot vicariously challenge this infringement of the rights of its

patrons, except to the extent that it impaired Plaintiff’s own business interests. Since

the patrons at Plaintiff’s club were already being detained, it seems doubtful that the

frisking of some of these patrons during this detention added much, if at all, to the

disruption of the club’s operations.

36
patrons were required “to walk by drug-sniffing dogs,” and (iii) that the police “detained the

patrons and employees between three and five hours and denied them access to the

restrooms for a long period of time.” Club Retro, 568 F.3d at 192. Needless to say, the

present case does not involve anywhere near the lengthy detention, use of force, and

widespread searches featured in Bruce and Club Retro.35

Even if the Court were to conclude that issues of fact preclude a determination as a

matter of law as to the legality of the detention of Plaintiff’s customers and the disruption

of Plaintiff’s business on the night of January 18, 2014, Plaintiff once again has failed to

suggest which of the Defendant officers could be charged with liability for any such Fourth

Amendment violations. The affidavit of club manager Edward Muczynski does not identify

any of the officers who he observed detaining, pointing guns at, and frisking patrons, nor

does the record otherwise shed light on this question. Accordingly, no individual Defendant

officer is subject to liability for any Fourth Amendment violation arising from these

activities.36

As for the three other enforcement actions at issue in this case, each involved either

a more limited detention of patrons and disruption of club business or none at all. 

According to the night manager, George Gibson, a club employee was ordered to turn off

 35A third decision cited by Plaintiff, Berry v. Leslie, 767 F.3d 1144 (11th Cir. 2014),

was vacated upon the Eleventh Circuit’s grant of en banc rehearing, see Berry v.

Orange County, 771 F.3d 1316 (11th Cir. 2014). In any event, Berry involved “a

tremendous and disproportionate show of force,” and the officers in that case entered a

barbershop “with guns drawn,” they “forced all of the children and other customers to

leave” while announcing “that the business was ‘closed down indefinitely,’” and they

“handcuffed and conducted pat-down searches of the employees.” Berry, 767 F.3d at

1153.

 36Again, the Defendant City’s potential liability is addressed below.

37
the music during the July 10, 2015 enforcement action and dancers were summoned to

their dressing room, (see Gibson Aff. at ¶¶ 7, 9),37 but there is no evidence that patrons

were detained or searched that evening. The October 24, 2015 enforcement action

entailed only the investigation of the club’s VIP rooms, and Gibson acknowledged that the

officers did not order the music turned off or the lights turned on, nor did they disrupt any

dancers’ performances. Finally, Muczynski has stated that during the December 3, 2015

enforcement action, the club’s patrons were detained for about 30 minutes and some of

them were frisked and asked to produce identification, but the activities observed by

Muczynski that evening were either similarly or less disruptive than the activities he

described as occurring in the course of the January 18, 2014 enforcement action. It follows

under the Court’s earlier analysis that the detention of patrons and disruption of business

that occurred during this most recent enforcement action did not rise to the level of violating

Plaintiff’s Fourth Amendment rights.

4. The Inspection of the Club’s VIP Rooms

Plaintiff’s next claim of a Fourth Amendment violation may be quickly resolved. During

each of the enforcement actions at issue here, one or more officers were observed entering

the club’s VIP rooms, and Plaintiff has produced evidence that on at least some of these

occasions, the officers were seen searching in and around the furniture in those rooms and

examining them with a flashlight. In Plaintiff’s view, this activity exceeded the Defendant

officers’ authority to enter areas of the club that were open to the public.

 37As noted by Defendants, Gibson contradicted a portion of this statement at his

deposition, testifying that the music was not turned off and the lights were not turned on

during the July 10 enforcement action. (See Defendants’ Motion, Ex. 41, Gibson Dep.

at 40-41.) 

38
The Court cannot agree. Although the club’s VIP rooms were closed off by curtains,

they nonetheless were accessible to the public, and it follows that police officers could

inspect them without a warrant. Indeed, it is telling that on each occasion at issue here,

tickets were issued to patrons for engaging in improper conduct in a VIP room. Given that

dancers are prohibited from performing in such curtained-off areas under the Detroit

ordinance governing sexually-oriented businesses, it would be surprising if a club such as

Plaintiff’s could invite its patrons to accompany dancers into VIP rooms and yet insist that

these rooms are not open to the public. And as Defendants observe, the courts have found

that there is no reasonable expectation of privacy in secluded areas of a public adult

entertainment establishment. See, e.g., Matney v. County of Kenosha, 86 F.3d 692, 698

(7th Cir. 1996); Czerniak v. City of Milwaukee, 669 F. Supp. 247, 249 (E.D. Wis. 1987). 

Accordingly, the Defendant officers did not violate the Fourth Amendment by conducting

warrantless inspections of the VIP rooms in Plaintiff’s club. 

5. The Inspection of Dancers’ Sexually-Oriented Business Licenses

As the final apparent basis for its Fourth Amendment claim, Plaintiff contends that the

Defendant officers acted unreasonably in the manner in which they carried out their

inspections of dancers’ sexually-oriented business licenses. In particular, Plaintiff

complains that the officers could not enter the dancers’ dressing room without a warrant, 

that dancers were unlawfully detained after their licenses were inspected and for the

improper purpose of running LEIN checks, and that officers illegally ordered dancers to

produce their purses for searches without probable cause.

First, while it is true that the dancers’ dressing room at Plaintiff’s club was not a public

area that the Defendant officers were free to enter without a warrant, Defendants point out

39
that Plaintiff expressly consented to the inspection of dancers’ sexually-oriented business

licenses “in the area of [the club’s] locker rooms, or at such other location requested by”

Plaintiff. (Defendants’ Motion, Ex. 45, 7/10/2008 Letter Agreement at 1.) The parties

agreed to this procedure for the express purpose of allowing DPD officers to “perform their

[inspection] duties in a manner so as to minimize disruption of [Plaintiff’s] business.” (Id.) 

Moreover, the City ordinance that mandates sexually-oriented business employee licenses 

requires that dancers keep their licenses on the premises when they are performing, (see

Defendants’ Motion, Ex. 34, Detroit City Code § 5.15.42(e)), and it surely follows that DPD

officers must have the authority to ensure that dancers are complying with this provision.

Plaintiff correctly observes, however, that the same letter agreement cited by

Defendants as granting consent to enter the club’s dressing rooms further provides that

“[t]o avoid disrupting [Plaintiff’s] business, the officers will not require that all entertainers

be removed from the performance areas at the same time, but will attempt to inspect cards

from a small group of dancers, while allowing entertainment to continue to be offered by

others.” (7/10/2008 Letter Agreement at 1.) Yet, night manager George Gibson states that

officers ordered “all dancers to gather in the entertainers’ dressing room” during the July

10, 2015 enforcement action so that their licenses could be checked, (Gibson Aff. at ¶ 9),

and club manager Edward Muczynski similarly asserts that large numbers of dancers were

ordered to the dressing room at the same time during the January 18, 2014 and December

3, 2015 enforcement actions, (see Muczynski Aff. at ¶¶ 27, 43, 55, 61). In Plaintiff’s view,

this unreasonable procedure for inspecting dancers’ licenses unlawfully disrupted its

business in violation of the Fourth Amendment, particularly in light of the evidence that

dancers were not permitted to promptly resume their performing after their licenses had

40
been checked and verified, (see id. at ¶ 43, 61). Although the Defendant officers have

denied that dancers were detained in the dressing room after their licenses were verified,

(see, e.g., Defendants’ Motion, Ex. 23, Gonzales 9/18/2015 Dep. at 29-30), the Court must

credit Plaintiff’s contrary evidence for purposes of deciding Defendants’ motion. In addition,

the LEIN checks performed during the January 18, 2014 enforcement action further

prolonged the dancers’ detention, and Officer Gonzales testified that these LEIN checks

were done not simply to confirm the dancers’ identities, but also to check for outstanding

warrants. (See Gonzales 7/29/2015 Dep. at 51-53.)

Despite this evidence that the Defendant officers carried out their inspections of the

dancers’ licenses in a questionable manner, Plaintiff has failed to demonstrate that these

questionable practices rise to the level of a violation of Plaintiff’s Fourth Amendment rights. 

As already explained, the issue in this case is not whether the patrons or employees at

Plaintiff’s club were subject to unreasonable searches or seizures; rather, the question is

whether the actions of the Defendant officers violated Plaintiff’s Fourth Amendment

protection against unreasonable transgressions of its business interests. Accordingly,

regardless of whether the Defendant officers could have verified the dancers’ licenses more

efficiently or through means that were less intrusive upon the privacy and other interests

of these dancers, Plaintiff cannot prevail absent a showing that the officers unreasonably

disrupted the operation of its club.

The Court finds that Plaintiff has failed as a matter of law to make this required

showing. The record, when viewed in a light most favorable to Plaintiff, indicates that the

club’s dancers were unavailable to perform for about 90 minutes on January 18, 2014 and 

on July 10, 2015, and for over an hour on December 3, 2015. (See Muczynski Aff. at ¶¶ 

41
43, 61; Gibson Aff. at 19.) While these disruptions are somewhat longer than the periods

of detention and business disruption deemed reasonable in Palacios, Baker, and

Ruttenberg, supra, they are considerably shorter than the several-hour detentions in the

cases cited by Plaintiff, Club Retro and Bruce. Defendants also point to a decision that is

more factually on point, Tanya A. v. City of San Diego, No. 14-1942, 2015 WL 1197550,

at *1-*2, *9 (S.D. Cal. March 16, 2015), in which the plaintiff adult entertainers alleged that

their Fourth Amendment rights were violated through an inspection process that lasted two

hours and entailed the production of entertainer permits, drivers’ licenses, and social

security numbers, as well as photographing of the plaintiffs’ semi-nude bodies. The court

held that the plaintiffs had failed to plead a viable Fourth Amendment claim, observing that

they had “offer[ed] no legal support” for their allegations of illegal search and seizure. 

Tanya A., 2015 WL 1197550, at *9.

The same can be said here. To be sure, the Defendant officers could have acted

more expeditiously in verifying the dancers’ licenses, and could have allowed the dancers

to resume their performing immediately after this process of verification was completed.38

In addition, the dancers’ detention was further prolonged through LEIN checks and

searches of purses that arguably transgressed the dancers’ Fourth Amendment rights. Yet,

these criticisms alone do not establish a violation of Plaintiff’s Fourth Amendment rights,

and Plaintiff has not pointed to any case holding that a commercial establishment’s Fourth

 38As noted, some of the Defendant officers have testified that the dancers at Plaintiff’s

club were, in fact, allowed to leave the dressing room and resume their performing after

their license checks were completed, but the Court must credit Plaintiff’s contrary

evidence for present purposes.

42
Amendment rights were violated under facts analogous to those presented here.39

Consequently, Plaintiff may not go forward with a Fourth Amendment claim premised on 

purported defects in the process through which the Defendant officers inspected the

sexually-oriented business licenses of the performers at Plaintiff’s club.

6. Municipal Liability 

In its foregoing analysis, the Court has rejected the bulk of Plaintiff’s claims of Fourth

Amendment violations by the Defendant DPD officers. To the extent that the individual

Defendant officers did not violate Plaintiff’s Fourth Amendment rights, the Defendant City

likewise cannot be held liable. See Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th

Cir. 2001) (explaining that “[i]f no constitutional violation by the individual defendants is

established, the municipal defendants cannot be held liable under § 1983”). To the limited

extent, however, that the Court has found that Plaintiff has produced evidence in support

of viable claims of Fourth Amendment violations — albeit without sufficient evidence to

permit identification of the particular Defendant officers who committed these violations —

the Court must consider whether the record provides a basis for charging the Defendant

City with liability for these violations.

Under well-settled principles, the Defendant City “cannot be held liable under § 1983

for an injury inflicted solely by its employees or agents.” Gregory, 220 F.3d at 441 (citing

Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037 (1978)). 

Rather, “[f]or liability to attach, there must be execution of a government’s policy or custom

which results in a constitutional tort.” Gregory, 220 F.3d at 441. Moreover, Plaintiff must

 39For this reason, the Defendant officers presumably would be shielded by qualified

immunity even if Plaintiff could show that its constitutional rights were violated.

43
establish that “through its deliberate conduct, the municipality was the ‘moving force’

behind” the violation of [Plaintiff’s] constitutional rights — that is, it “must show that the

municipal action was taken with the requisite degree of culpability and must demonstrate

a direct causal link between the municipal action and the deprivation of federal rights.” 

Gregory, 220 F.3d at 442 (quoting Board of County Comm’rs of Bryan County v. Brown,

520 U.S. 397, 405, 117 S. Ct. 1382, 1389 (1997)).

The purported customs and policies identified by Plaintiff cannot account for any of

the Fourth Amendment violations arguably supported by the record. In its response to

Defendants’ summary judgment motion, Plaintiff focuses primarily (and repeatedly) on a

City of Detroit custom of conducting warrantless entries into adult cabarets without probable

cause. Yet, the Court has concluded that each of the warrantless entries at issue here was

lawful, notwithstanding the Fourth Amendment presumption that entry into a residence or

commercial establishment must generally be authorized by a warrant. Thus, the custom

claimed by Plaintiff does not bear upon any Fourth Amendment violation that is supported

by the record in this case.

Plaintiff fares somewhat better with its appeal to purported City of Detroit customs of

detaining club patrons without particularized suspicion and carrying out inspections of

dancers’ licenses by detaining all of the dancers in the club’s dressing room until this

inspection process is fully completed. Nonetheless, the evidence cited by Plaintiff — to the

extent that it cites any record evidence whatsoever — would not permit the conclusion that

the posited customs exist. First, while Plaintiff points to evidence that patrons were

detained and frisked during two of the warrantless entries giving rise to this suit, it has failed

to produce any evidence whatsoever that the (unidentified) officers who carried out these

44
activities were acting pursuant to a municipal custom or policy.

Likewise, in asserting that the Defendant City has a custom of rounding up all of a

club’s dancers in the dressing room to perform license checks and releasing the dancers

only after all of their licenses have been checked and verified, the evidence in support of

this claimed custom consists almost entirely of the fact that the Defendant officers

conducted license checks in this manner during three of the four entries at issue in this

case. Beyond this, Plaintiff points only to the testimony of Officer Allen Williams that when

he performs license checks, “all” of the dancers are “brought to one area out of the public

view.” (A. Williams Dep. at 28.) Even accepting Plaintiff’s view that this is tantamount to

an “admission” that all dancers are brought to and kept in the dressing room at the same

time until all of their licenses are verified, (see Dkt. 65, Plaintiff’s Response Br. at 59),40

nothing in the record supports the conclusion that Officer Williams had policymaking

authority, or that he was testifying to a practice dictated by policymaking officials or

customarily adhered to by all DPD officers. Accordingly, Plaintiff has failed to produce

evidence that could forge the requisite causal link between a violation of its Fourth

Amendment rights and a City of Detroit custom or policy.

B. Plaintiff’s First Amendment Claims of Retaliatory Enforcement Actions

As its remaining theory of recovery, Plaintiff contends that its club was targeted for

enforcement actions due to its protected First Amendment activities of (i) providing adult

entertainment, and (ii) seeking redress from the courts through the filing of this suit. In

 40This is a dubious reading of Officer Williams’ testimony, where he immediately goes

on to explain that dancers are free to resume their performances once their licenses

have been verified, and that “there’s no reason to keep them” beyond this point. (A.

Williams Dep. at 28-29.)

45
seeking summary judgment in their favor on these First Amendment claims, Defendant

argues that Plaintiff cannot establish two of the required elements of these claims: (i) that 

Defendants’ actions “injured [Plaintiff] in a way likely to deter a person of ordinary firmness

from further participation in [protected] activity,” and (ii) that “the adverse action was

motivated at least in part by [Plaintiff’s] protected conduct.” Center for Bio-Ethical Reform,

Inc. v. Napolitano, 648 F.3d 365, 371 (6th Cir. 2011). The Court agrees that the record

does not support the second of these required showings, and it therefore need not address

Defendants’ remaining challenge.

First, to the extent that Plaintiff asserts that it was targeted for enforcement actions

because it offered adult entertainment, the evidence it cites fails to support this proposition. 

Plaintiff points, in particular, to the testimony of Chief Craig that when he was appointed

Chief of Police and determined that the VEU should be reinstated, “one of the things [he]

became aware of” was a “variety of complaints” from members of the community “of Vice

related activities occurring in the city, whether it was street walking prostitution activity . .

. or some of the alleged illegal activity going on in strip clubs.” (Craig Dep. at 7-8.) Chief

Craig further testified to his “expectation” that the VEU would “conduct investigations . . .

[of] Vice clubs,” although he did not direct the VEU to target particular clubs in its

investigations. (Id. at 21.) This testimony, in Plaintiff’s view, supports the inference that

the VEU targeted adult cabarets for enforcement actions.

Even accepting this reading of Chief Craig’s testimony — and overlooking his further

testimony that he also expected the VEU to investigate alleged vice-related activity at

“liquor establishments, . . . gas stations, [and] liquor stores,” as well as “prostitution that

occurs out on the public streets,” (id. at 7) — nothing in this testimony, or elsewhere in the

46
record, supports the conclusion that Chief Craig singled out adult cabarets for enforcement

actions because of their expressive activity. To the contrary, he expressed his expectation

that the VEU would target “complained of” locations, which he described as establishments

where there were reports of “narcotics being sold on the premises or acts of sex being

conducted on the premises,” or where VIP rooms were being operated contrary to the City

of Detroit ordinance governing sexually-oriented businesses. (Id. at 21.) This testimony,

in short, singles out establishments for enforcement actions based on complaints of

criminal activity, and not expressive activity. There is no evidence, moreover, that the

members of the VEU understood Chief Craig, or any other high-ranking DPD official, as

directing enforcement actions at establishments based on the sort of entertainment they

offered, as opposed to the reports of unlawful activity at those establishments. Indeed, as

to the initial January 18, 2014 enforcement action at Plaintiff’s club, Sergeant Greer-Travis

expressly testified that this operation was motivated by a report of drug sales at the club, 

(see Greer-Travis 7/26/2016 Dep. at 58), and nothing in the record calls this testimony into

question or suggests that any other enforcement action at the club was motivated by

expressive activity. Accordingly, Plaintiff’s claim of retaliation based on its expressive

activity of adult entertainment fails for lack of supporting evidence.

As for Plaintiff’s claim that its club was targeted for stepped-up enforcement after it

filed this suit, this claim rests almost entirely on temporal proximity. Yet, while this suit was

filed in August of 2014, the first enforcement action thereafter did not occur until July 10,

2015, nearly a year later, and this considerable passage of time cannot support an

inference of retaliatory motive. Apparently recognizing as much, Plaintiff states that the

parties did not commence discovery until April of 2015, and that it served notices of the

47
depositions of several Defendant officers on July 7, 2015, just three days before the July

10 enforcement action. Defendants state without contradiction, however, that their counsel

did not notify the Defendant officers of Plaintiff’s request to depose them until several days

after the July 10, 2015 enforcement action. This lack of knowledge defeats Plaintiff’s claim

of retaliatory motive.

Next, Plaintiff points to the statement of the club’s night manager, George Gibson, 

that Sergeant Tucker and Officer Williams told him during the July 10, 2015 enforcement

action that they would write “lots of tickets” so that “you folks will have to come to court,”

and that “you should be happy about the tickets [because] your boss likes going to court.” 

(Gibson Aff. at ¶¶ 16-17.) These statements, however, are far too vague to support the

inference that the July 10 enforcement action was intended as retaliation against Plaintiff’s

filing of this suit. In addition, even assuming the officers’ statements about “going to court”

are construed as references to this case in particular, the officers’ mere awareness that

Plaintiff had filed this suit does not, by itself, serve as an explanation for any action taken

by the officers. Certainly, Plaintiff has not pointed to any evidence that this awareness

played any role in the decision to conduct the July 10 enforcement action at Plaintiff’s club;

indeed, Plaintiff does not cite any basis in the record for concluding that Sergeant Tucker

or Officer Williams were even involved in this decision. Simply stated, nothing in the

statements made to Mr. Gibson forges the requisite causal link between Plaintiff’s

commencement of this suit and the selection of Plaintiff’s club for any ensuing enforcement

action.

Nor has Plaintiff produced circumstantial evidence that might assist in establishing this

necessary causal connection. Plaintiff attempts no showing that it was treated differently

48
from other adult cabarets after it filed this suit. Nothing in the record suggests, for example,

that once Plaintiff brought this suit, its club was targeted for enforcement actions more

frequently than other, similarly situated establishments in Detroit. Consequently, Plaintiff’s

claim of unlawful retaliation cannot withstand summary judgment. 

IV. CONCLUSION

For these reasons,

The Court hereby GRANTS Defendants’ December 14, 2016 motion for summary

judgment. (Dkt. 55.) In addition, the Court DENIES Plaintiff’s two motions for partial

summary judgment filed on December 14, 2016 (Dkt. 52 and Dkt. 53), as well as its motion

for partial summary judgment filed on March 20, 2017 (Dkt. 75).

Finally, in accordance with the rulings in this opinion and order, the Court GRANTS

the parties’ applications and motions for leave to file overlength briefs (Dkt. 54, Dkt. 64, and

Dkt. 71), and DENIES Plaintiff’s motions to strike (Dkt. 58, Dkt. 59, and Dkt. 66).

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: May 25, 2017

I hereby certify that a copy of the foregoing document was served upon counsel of record

on May 25, 2017, by electronic and/or ordinary mail.

s/Carol J. Bethel 

Case Manager

49