2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-16-2007

Watson v. Abington

Precedential or Non-Precedential: Precedential

Docket No. 05-4133

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-4133

 

ANTONIO D. WATSON; TONY TIX, INC.;

GERALD W. KELLY; JUST JERRY’S INC,

t/a and d/b/a Scoreboard Restaurant & Tavern;

ROBERT KENNEDY

 v.

ABINGTON TOWNSHIP;

ABINGTON TOWNSHIP POLICE DEPARTMENT;

CHIEF WILLIAM J. KELLY, Individually and

in his Official capacity as a Police Chief,

Abington Township Police Department;

DETECTIVE RICHARD L. KONDON, Badge No. 1981,

Individually and in his Official Capacity as a Police Officer,

Abington Township Police Department;

DETECTIVE JOHN PARKS, Badge No. 0092,

Individually and in his Official capacity as a Police Officer,

Abington Township Police Department;

DETECTIVE ANTHONY AMMATURO, Badge No. 1556,

Individually and in his Official Capacity as a Police Officer,

Abington Township Police Department
*

The Honorable Myron H. Bright, United States Circuit

Judge for the Eighth Circuit, sitting by designation.

2

 Gerald W. Kelly, Just Jerry’s Inc. t/a and d/b/a

 Scoreboard Restaurant & Tavern,

 Appellants

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 01-cv-05501)

District Judge: Honorable Petrese B. Tucker

 

Argued September 12, 2006

Before: FUENTES, FISHER and BRIGHT,* Circuit Judges.

(Filed: February 16, 2007)

D. Louis Nicholson(Argued)

Two Penn Center Plaza, Suite 200

1500 JFK Boulevard

Philadelphia, PA 19102

Attorney for Appellants
1

Chief William Kelly – of no relation to Plaintiff Gerald

Kelly – was Abington Township’s police chief from 1986

through the time the events relevant to this case occurred.

3

Walter F. Kawalec, III (Argued)

Marshall, Dennehey, Warner,

 Coleman & Goggin

200 Lake Drive East

Woodland Falls Corporate Park, Suite 300

Cherry Hill, NJ 08002

Joseph J. Santarone, Jr.

Marshall, Dennehey, Warner,

 Coleman & Goggin

620 Freedom Business Center, Suite 300

King of Prussia, PA 19406

Attorneys for Appellees

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.

Gerald Kelly and his business Just Jerry’s, Inc.

(collectively “Plaintiffs”) appeal from a decision of the United

States District Court for the Eastern District of Pennsylvania

dismissing their claims against Abington Township, the

Abington Township Police Department, Police Chief William

Kelly,1

 and three individual officers (collectively, “Defendants”)
2

Watson died on December 25, 2004.

4

under 42 U.S.C. § 1983. The District Court dismissed the

Plaintiffs’ Fourth Amendment claim under Federal Rule of Civil

Procedure 12(b)(6) based on the closely regulated industry

exception to the warrant requirement. It also granted summary

judgment to the Defendants on the Plaintiffs’ Fourteenth

Amendment claim, based on a lack of evidence from which a

jury could infer a municipal policy or custom of discriminating

against African-Americans. For the reasons set forth below, we

will vacate the District Court’s dismissal of the Plaintiffs’

Fourth Amendment claim, and affirm the Court’s summary

judgment ruling on the Plaintiffs’ Fourteenth Amendment claim.

I.

Because this case comes to us on a motion to dismiss and

a grant of summary judgment, we will view the facts in the light

most favorable to the non-moving party, in this case the

Plaintiffs.

In 1993, Gerald Kelly retired from the Abington

Township Police Department as a lieutenant, after twenty-eight

years on the force. Upon his retirement, Kelly purchased the

Scoreboard Restaurant and Tavern (“Scoreboard”), and set it up

under the corporate entity Just Jerry’s, Inc. Kelly and his wife

also purchased the property on which the restaurant was located,

but did so under their own names.

On August 10, 1998, Kelly leased a storefront adjacent

to the Scoreboard to Antonio Watson, an African-American who

was an original plaintiff in this case.2

 Watson used the property

to operate a ticket agency named Tony Tix, Inc. Tony Tix
3

The Defendants dispute this account, claiming that they

had no knowledge of Watson before May 10, 1999, when he

was involved in a shooting near his residence. They also claim

to have received numerous complaints about Watson’s business

dealings, which led to an investigation in 2000. For the

purposes of this matter, however, we are required to view the

record in the light most favorable to the Plaintiffs. In particular,

when considering the Fourth Amendment claim dismissed

pursuant to Fed. R. Civ. P. 12(b)(6), we must accept the

Plaintiffs’ allegations as true. Langford v. City of Atlantic City,

235 F.3d 845, 847 (3d Cir. 2000).

5

remained open from October 1998 to February 2000, and was

reportedly very successful during this time.

Shortly after Tony Tix opened, Lieutenants Peter Hasson

and George Magalish of the Abington Township Police

Department reportedly spoke to Kelly about Watson.3

 They

asked about his background and his business. During their

discussion, Kelly mentioned his plans to sell the Scoreboard to

Watson. Kelly testified that upon learning of these plans, Lt.

Hasson allegedly said “[w]e heard you’re . . . selling the bar to

[Watson]. And [Kelly] said, [w]ell, you won’t be mad when I

sell it to a black guy. [Hasson] said, [w]ell, we can raid you out

of business and you can buy it back cheap and then he just

laughed.”

The Plaintiffs argue that, although Kelly never sold the

bar to Watson, the police did precisely what Lt. Hasson

suggested they would do: raid him out of business based on his

association with Watson. On May 20, 1999; December 18,

1999; August 3, 2000; and November 25, 2000, the Abington
6

Township Police Department conducted sweeps of the

Scoreboard. During these raids, between five and fifteen

uniformed officers would enter the bar. One officer would

secure the door, while others would walk around and check the

identification of the bar’s patrons. The officer at the door

prevented anyone from entering or leaving until the sweep was

complete.

On the dates that the officers searched the Scoreboard,

other bars were also swept. For example, on May 20, 1999,

officers also swept the McKinley Tavern, Hollywood Tavern,

Union Jacks Old Glory Pub, and Keswick Tavern. The

Defendants claim that the sweeps began in 1999, and were

funded by grants provided by the Commonwealth of

Pennsylvania. However, Lt. Hasson testified that on May 20,

1999, no one from either the Liquor Control Board or the

enforcement bureau accompanied the officers in their search of

the Scoreboard. According to his testimony, an agent from the

enforcement bureau did accompany the officers during the

December 18 and August 3 sweeps. Nothing in the record

confirms this claim.

The Plaintiffs also claim that, beginning in 1998, the

Defendants would often station a marked police vehicle in the

parking lot directly across the street from the Scoreboard. On

one occasion in either 1998 or 1999, the Defendants set up a

Driving Under the Influence (“DUI”) checkpoint directly in

front of the Scoreboard. During this checkpoint, floodlights

illuminated the bar.

The Plaintiffs presented sworn affidavits from several

individuals who were familiar with the Abington Township

Police Department’s activities at the Scoreboard. Eugene
7

Chapman, an African-American, was a frequent patron of the

Scoreboard, who lived behind the establishment. According to

his affidavit, he was followed on several occasions for no

legitimate reason by Township police when he drove from

behind the Scoreboard. He has been stopped seven times by the

Department, but has never received a ticket or citation.

Chapman also stated that he was present for a raid of the

Scoreboard, during which the officers made all of the customers

lie on the floor. In addition, he saw the Department set up

highly visible DUI checkpoints very close to the Scoreboard

every other weekend. In 2003, he was harassed while parked in

a public park by officers who said they had a call that “a strange

man was in his car in the park watching television.”

James Barry, a floor manager for the Scoreboard, also

submitted an affidavit. He claimed to have been present on at

least seven occasions when Abington Township police raided

the establishment. One week, they raided the bar two nights in

a row. According to him, no other bars were being raided in this

manner. During these raids, African-American customers were

harassed more than Caucasian customers. Officers were also

stopping Scoreboard patrons for no apparent legitimate reason

after they left the bar. This happened to African-American

customers more frequently than to Caucasian patrons. In

addition, a marked police car was parked across the street from

the Scoreboard every night, and this car was visible to

customers. According to Barry, these actions destroyed the

Scoreboard’s business.

Robert Kennedy, an employee of the Scoreboard,

submitted an affidavit claiming that he observed a uniformed,

African-American female officer harass a black customer. On
8

one occasion, Kennedy witnessed the Department set up a DUI

checkpoint immediately outside the Scoreboard’s parking lot.

The Plaintiffs also presented Kelly’s deposition

testimony in order to provide an inside view of the Abington

Township Police Department. Based on his twenty-eight years

with the Department, he testified that it was “common

knowledge” that racial profiling in traffic stops was an easy way

for an officer to increase the number of traffic tickets he issued.

Kelly himself had racially profiled cars leaving Philadelphia as

a way to get quick tickets.

According to Kelly, there was a high number of profiling

car stops of African-Americans coming out of Philadelphia, and

African-Americans were stopped more often than Caucasians.

He also alleged that the police department applied a different

standard to African-Americans and other minorities than it

applied to Caucasians. Kelly believed that the racial profiling

occurred on a weekly basis, and that it was still occurring when

he retired in 1993.

In addition to the profiling, Kelly testified that he heard

a number of racial slurs during his twenty-eight years at the

Department. He claims to have heard them approximately on a

monthly basis. Detective Richard Kondon, a defendant in this

case, testified that he also heard racial epithets while at work,

but did not discuss their frequency.

Kelly also testified that he did not know of anyone ever

being reprimanded for making racial slurs. However, Chief

Kelly testified that he personally heard only two racial epithets

uttered by Township officers during his eighteen years as chief,

and that he punished the offending officer both times. One slur
9

was directed at African-Americans, and the other at Jews. Both

of the officers who used these slurs were suspended.

According to Kelly, most of the Department knew about

the racial profiling, and Chief Kelly “should have known.”

When asked if Chief Kelly knew about the racial profiling and

racial slurs, Kelly answered, “[y]es, I would say. Unless you’re

totally absent from there, you have to hear something.” When

asked if Chief Kelly was totally absent, Kelly replied “I don’t

believe so.” However, when Kelly was asked if Chief Kelly was

aware of officers uttering racial slurs, Kelly replied “Well, I

assume at some point during [his] career [he] might [have]

hear[d] a slur, yeah. That is an assumption. I can’t say I have

proof of anything.”

On October 30, 2001, the Plaintiffs filed suit against

Abington Township, the Abington Township Police

Department, Chief William Kelly, and three individual officers.

Among other claims that have been dismissed and are not

relevant to this appeal, the Plaintiffs brought claims under 42

U.S.C. § 1983 for violation of their Fourth and Fourteenth

Amendment rights. In response, the Defendants filed a motion

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

On February 20, 2002, the District Court granted the

Defendants’ motion to dismiss as to the Plaintiffs’ Fourth

Amendment claim. The Court determined that the Plaintiffs had

not made any allegations upon which relief could be granted

because all they had claimed was that the bar was searched

without a warrant. The Court reasoned that no warrant was

necessary to comply with the Fourth Amendment because the

sale of liquor is a closely regulated industry. The Plaintiffs filed
10

a motion for reconsideration, which was denied by the District

Court on March 31, 2003.

On September 30, 2004, the Defendants filed a motion

for summary judgment, requesting that all of the Plaintiffs’

remaining claims be dismissed. The District Court granted this

motion on August 5, 2005. As to the Plaintiffs’ Fourteenth

Amendment claim, the Court determined that there was

insufficient evidence of a municipal policy or custom of racial

discrimination to survive summary judgment. The Plaintiffs

now appeal from both the order dismissing their Fourth

Amendment claim and the grant of summary judgment on their

Fourteenth Amendment claim. We exercise jurisdiction over

this appeal pursuant to 28 U.S.C. § 1291.

II.

A.

The Plaintiffs’ first argument is that the District Court

erred in dismissing their Fourth Amendment claim pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim. We exercise plenary review over such matters. Langford

v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000).

In determining whether the District Court erred in

dismissing the Plaintiffs’ claim under 12(b)(6), “[w]e must

determine whether, under any reasonable reading of the

pleadings, the plaintiffs may be entitled to relief, and we must

accept as true the factual allegations in the complaint and all

reasonable inferences that can be drawn therefrom.” Id.

(quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996))

(internal quotation marks omitted). At this stage of the

proceedings, “[t]he complaint will be deemed to have alleged
4

Here, the Plaintiffs’ complaint alleged the following in

relation to their Fourth Amendment claim:

54. As a result of the Plaintiffs Gerald W.

Kelly and Scoreboard’s social and

professional association with Plaintiff

Watson, an African-American, Defendants

. . . through their agents, servants, and/or

employees, prior to February 10, 2000,

commenced a systematic practice of

sending 15 to 20 uniformed Abington

Township police officers, in marked cars

and without a warrant, into the Scoreboard

Restaurant and Tavern allegedly for the

purpose of investigation [sic] underage

drinking.

11

sufficient facts if it adequately puts the defendants on notice of

the essential elements of the plaintiffs’ cause of action.” Id.

Finally, “[i]n considering a 12(b)(6) motion, we do not inquire

whether the plaintiffs will ultimately prevail, only whether they

are entitled to offer evidence to support their claims. Thus, the

district court’s order granting the defendants’ motion to dismiss

will be affirmed only if it appears that the plaintiffs could prove

no set of facts that would entitle them to relief.” Id.

Here, the District Court determined that the Plaintiffs had

not made any allegations upon which relief could be granted

because all they had claimed was that Abington Township

police had searched the Scoreboard without a warrant.4

 The
55. During these police raids, as described in

above paragraph 54, the police officers

would not allow anyone to either enter or

leave the Scoreboard Restaurant & Tavern.

56. During the police raids as described in

above paragraph 54, the police officers

would surround the Scoreboard Restaurant

& Tavern in marked police cars with their

flashing lights operating.

57. The practice of sending in several

uniformed police officers into the

Scoreboard Restaurant without a warrant

. . . was an illegal and unjustified seizure.

. . . .

101. In the manner, described . . . all

Defendants deprived Plaintiffs of their

rights to be [sic] equal protection of the

law, freedom from unlawful search and

seizure, freedom from intentional infliction

of emotional distress and to due process of

law. These rights are secured to the

Plaintiffs by the provisions of the Fourth,

Fifth and Fourteenth Amendments of the

U.S. Constitution and by Title 42 U.S.C.

Sections 1983 and 1985.

12

Scoreboard was engaged in the sale of liquor, which is a closely
13

regulated industry. Under the closely regulated industry

exception to the warrant requirement, the Court reasoned that a

warrant was not necessary for a lawful search. Thus, the District

Court concluded that the Plaintiffs had not stated a claim upon

which relief could be granted.

Generally, a search or seizure must be carried out

pursuant to a warrant to be considered reasonable under the

Fourth Amendment. See, e.g., Shoemaker v. Handel, 795 F.2d

1136, 1142 (3d Cir. 1986). In New York v. Burger, 482 U.S.

691 (1987), however, the Supreme Court explained that the

“expectation of privacy in commercial premises . . . is different

from, and indeed less than, a similar expectation in an

individual’s home. This expectation is particularly attenuated

in property in ‘closely regulated’ industries.” Id. at 700 (internal

citation omitted). Thus, the closely regulated industry exception

to the warrant requirement, based on Colonnade Corp. v. United

States, 397 U.S. 72 (1969), and United States v. Biswell, 406

U.S. 311 (1972), provides that “[b]ecause the owner or operator

of commercial premises in a ‘closely regulated’ industry has a

reduced expectation of privacy, the warrant and probable-cause

requirements, which fulfill the traditional Fourth Amendment

standard of reasonableness for a government search, have

lessened application in this context.” Burger, 482 U.S. at 702

(internal citation omitted).

However, we have emphasized that “the regulated

industries exception is a narrow one, and . . . a warrantless

search can be placed within that exception only if it is in fact

made pursuant to and in enforcement of the regulatory scheme.”

United States v. Shaefer, Michael & Clairton Slag, Inc., 637

F.2d 200, 204 (3d Cir. 1980). The warrantless inspection of a
14

heavily regulated business will be deemed reasonable only if

three criteria are met: (1) “there must be a ‘substantial’

government interest that informs the regulatory scheme pursuant

to which the inspection is made,” (2) “the warrantless

inspections must be ‘necessary to further [the] regulatory

scheme,’” and (3) “‘the statute’s inspection program, in terms of

the certainty and regularity of its application, [must] provid[e]

a constitutionally adequate substitute for a warrant.’” Burger,

482 U.S. at 702-03 (quoting Donovan v. Dewey, 452 U.S. 594,

600 (1981)). In short, the closely regulated industry exception

to the general rule requiring a warrant to search a property

requires more than a finding that the business being conducted

on that property is closely regulated. It requires that the search

or seizure actually be carried out in accordance with a regulatory

scheme that provides a constitutionally adequate substitute for

a warrant.

The issue in the present case is whether the sweeps of the

Scoreboard were “in fact made pursuant to and in enforcement

of the regulatory scheme” devised by the Commonwealth of

Pennsylvania. Initially, this requires us to determine who

actually carried out the searches. The Pennsylvania Liquor

Control Board (“PLCB”) “may inspect the entire licensee’s

premises during business hours, and cite a licensee for any

violation of the Liquor Code or any law of the Commonwealth.”

In Re Catering Club Liquor License No. CC-4837 Issued to

Fulton Post, Inc., 438 A.2d 662, 663 (Pa. Commw. Ct. 1981).

Pursuant to this rule, the District Court’s decision was premised

on its finding that “[h]ere, Defendants argue that the searches of

Scoreboard were conducted at the direction of the Liquor

Control Board . . . .” Based on this understanding of the facts,

the searches would certainly have been valid under the closely
5

The record also contains deposition testimony taken

after the Fourth Amendment claim was dismissed wherein

Abington Township police officers claim that some of the

sweeps were conducted in conjunction with the PLCB, but this

was not part of the record when the claim was dismissed, and we

are required to credit the Plaintiffs’ allegations over assertions

by the moving party. See Langford, 235 F.3d at 847.

15

regulated industry exception. But the record is devoid of any

proof that the PLCB was actually involved with all of the

sweeps at issue.

When considering “the dismissal of petitioners’ Fourth

Amendment complaint for failure to state a claim, we can

sustain the District Court’s action only if, taking the allegations

in the light most favorable to petitioners, we nonetheless

conclude that they could prove no set of facts entitling them to

relief for a [search or] ‘seizure.’” Brower v. County of Inyo, 489

U.S. 593, 598 (1989) (internal citation omitted). Here, the

Plaintiffs have alleged, consistent with their affidavit testimony,

that Abington Township police, and not members of the PLCB,

were responsible for carrying out the searches. While the

Defendants claim that the sweeps were part of a program funded

by the Commonwealth of Pennsylvania, the record contains no

evidence that this is the case, and no evidence that Township

police officers were ever authorized to enter a business’s

premises. The record does contain evidence that there was a

state-funded DUI checkpoint program, but it is far from clear

that this included a valid authorization for warrantless searches

of establishments that provided alcohol.5

 Thus, at best there is

a dispute about the nature of the sweeps and whether or not the
16

state actually authorized officers to search businesses without a

warrant. At this stage of the proceedings, it was an error for the

District Court to accept the Defendants’ unsupported

explanation of the searches rather than “taking the allegations in

the light most favorable to petitioners.” Id.

The next question before us, then, is whether the

regulatory scheme at issue here authorized local police officers

to carry out warrantless searches of businesses that sold liquor.

If not, the Plaintiffs have alleged a possible Fourth Amendment

violation by claiming that Abington Township police officers –

and not members of the PLCB – searched the Scoreboard

without a warrant. To make this determination, we turn to the

relevant Pennsylvania statutory and case law. Section 2-211 of

Pennsylvania’s Liquor Code provides, in relevant part, as

follows:

(a) There is created within the Pennsylvania State

Police a Bureau of Liquor Control Enforcement

which shall be responsible for enforcing this act

and any regulations promulgated pursuant thereto.

Officers and investigators assigned to the bureau

shall have the power and their duty shall be:

(1) To investigate whenever

there are reasonable grounds to

believe liquor, alcohol or malt or

brewed beverages are being sold on

premises not licensed under the

provisions of this act . . . .

. . . .
17

(3) Upon reasonable and

probable cause, to search for and to

seize, without warrant or process,

except in private homes, any liquor,

alcohol or malt or brewed

beverages unlawfully possessed,

manufactured, sold, imported or

transported and any stills,

equipment, materials, utensils,

vehicles, boats, vessels, animals,

aircraft, or any of them, which are

or have been used in the unlawful

manufacture, sale, importation or

transportation of the same. Such

liquor, alcohol, malt or brewed

beverages, stills, equipment,

materials, utensils, vehicles, boats,

vessels, animals or aircraft so

seized shall be disposed of as

hereinafter provided.

(4) To investigate and issue

citations for any violations of this

act or any laws of this

Commonwealth relating to liquor,

alcohol or malt or brewed

beverages, or any regulations of the

board adopted pursuant to such

laws or any violation of any laws of

this Commonwealth or of the

Federal Government, relating to the

payment of taxes on liquor, alcohol
18

or malt or brewed beverages by any

licensee, his officers, servants,

agents or employes.

47 Pa. Cons. Stat. Ann. § 2-211. In addition, Section 5-513 of

the Code directs that:

Every place operated under license secured under

the provisions of this article where any alcohol,

liquor or malt or brewed beverage covered by the

license is manufactured, produced, distilled,

developed or used in the process of manufacture,

denatured, redistilled, rectified, blended,

recovered, reused, held in bond, stored for hire or

in connection with a licensee’s business, shall be

subject to inspection by members of the board or

by persons duly authorized and designated by the

board at any and all times of the day or night, as

they may deem necessary, (a) for the detection of

violations of this act or of the rules and

regulations of the board promulgated under the

authority of this act, or (b) for the purpose of

ascertaining the correctness of the records

required by this act to be kept by licensees and the

books and records of licensees, and the books and

records of their customers, in so far as they relate

to purchases from said licensees, shall at all times

be open to inspection by the members of the

board or by persons duly authorized and

designated by the board for the purpose of making

inspections as authorized by this section.

Members of the board and the persons duly
6

The “enforcement bureau” refers to the Bureau of Liquor

Control Enforcement of the Pennsylvania State Police. 47 Pa.

Stat. Ann. § 1-102.

19

authorized and designated by the board shall have

the right, without fee or hindrance, to enter any

place which is subject to inspection hereunder, or

any place where records subject to inspection

hereunder are kept, for the purpose of making

such inspections.

47 Pa. Stat. Ann. § 5-513 (emphasis added). Finally, Section

4-493(21) of the Liquor Code makes it unlawful:

For any licensee, or his servants, agents or

employes, to refuse the board or the enforcement

bureau6

 or any of their authorized employes the

right to inspect completely the entire licensed

premises at any time during which the premises

are open for the transaction of business, or when

patrons, guests or members are in that portion of

the licensed premises wherein either liquor or

malt or brewed beverages are sold.

47 Pa. Stat. Ann. § 4-493(21). Thus, we must consider whether

these provisions authorized the warrantless searches of the

Scoreboard by Abington Township police officers.

Faced with a similar question, the Pennsylvania Superior

Court determined in Commonwealth v. Black, 530 A.2d 423 (Pa.

Super. Ct. 1987), that these regulations did not authorize the

warrantless entry and search of a licensed premises by a police

officer, even if that officer was accompanied by an agent from
20

the PLCB. Id. at 430. In Black, the PLCB was investigating the

Second Story Lounge, a private club in Reading, Pennsylvania.

The Lounge was a licensee of the PLCB, and was therefore

subject to the above statutory provisions of the Liquor Code.

An agent of the PLCB contacted local police and requested that

an officer accompany him on a search of the club. Id. at 425-26.

Pursuant to this request, an officer from the police department

accompanied several PLCB investigators on a warrantless

search of the Lounge. Id. During the search, the officer

discovered the drugs which served as the basis for the criminal

charges brought against Black. Id.

After considering the provisions noted above, the

Superior Court determined that they did not authorize the

officer’s warrantless search of the premises. The court first

noted that “[t]he statute specifies those categories of individuals

who have been entrusted to enforce the liquor laws by

conducting special searches and inspections, i.e., enforcement

officers, investigators, members of the board, and persons duly

authorized by the board.” Id. at 429-30. A municipal

policeman, the court explained, is certainly not an enforcement

officer, an investigator, or a member of the board. Id. at 430.

In addition, the officer “did not become a ‘[person] duly

authorized and designated by the board’ simply by raiding [the

Lounge] at the request of [a PLCB agent].” Id. Thus, “[i]n the

absence of any evidence of record as to whether [the agent’s]

request was documented or approved by his superiors, we surely

cannot regard the invitation extended to [the officer] as a form

of due authorization to inspect within the meaning of the

statute.” Id. The court then noted that, viewing Sections 5-513

and 4-493(21) in conjunction, “persons duly authorized and

designated by the board” under Section 5-513 were intended to
21

be “authorized employes” of the board who are under the direct

supervision of board members, as per Section 4-493(21). Id.

The court therefore held that the Pennsylvania Liquor Code does

not authorize warrantless searches of licensees by municipal

police officers. Id.

As noted above, “the regulated industries exception is a

narrow one, and . . . a warrantless search can be placed within

that exception only if it is in fact made pursuant to and in

enforcement of the regulatory scheme.” Shaefer, Michael &

Clairton Slag, Inc., 637 F.2d at 204. The regulatory scheme at

issue here only permits warrantless inspection by specified

categories of individuals, and the officers of the Abington

Township Police Department are not among those individuals –

especially absent evidence that they were authorized by the

PLCB. 47 Pa. Stat. Ann. § 5-513; Black, 530 A.2d at 430.

Thus, viewing the allegations in the light most favorable to the

Plaintiffs, the sweeps were not in accordance with the regulatory

scheme, and the District Court erred in finding that the closely

regulated industry exception to the warrant requirement applied

based on the record before it. By alleging that Abington

Township police officers entered the premises without a

warrant, the Plaintiffs have alleged sufficient facts to survive a

12(b)(6) motion. We therefore vacate the District Court’s

dismissal of their Fourth Amendment claim.

B.

The Plaintiffs also allege that the District Court erred by

granting summary judgment in favor of the Defendants on their

Fourteenth Amendment claim. We review a district court’s

grant of summary judgment de novo, applying the same test the

district court would have used initially. See, e.g., Gordon v.
22

Lewiston Hosp., 423 F.3d 184, 207 (3d Cir. 2005). That is,

summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). The District Court’s

grant of summary judgment against the Plaintiffs was predicated

on their failure to advance evidence from which a jury could

conclude that a municipal policy or custom caused their injury.

In Monell v. New York City Department of Social

Services, 436 U.S. 658 (1978), the Supreme Court held that

municipal liability under 42 U.S.C. § 1983 cannot be based on

the respondeat superior doctrine, but must be founded upon

evidence that the government unit itself supported a violation of

constitutional rights. Id. at 691-95; see also Bielevicz v.

Dubinon, 915 F.2d 845, 849-50 (3d Cir. 1990). Municipal

liability only attaches when the “execution of a government’s

policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official

policy, inflicts the injury.” Monell, 436 U.S. at 694; Bielevicz,

915 F.2d at 850.

Thus, there are two ways that a plaintiff can establish

municipal liability under § 1983: policy or custom. Under

Monell, a plaintiff shows that a policy existed “when a

‘decisionmaker possess[ing] final authority to establish

municipal policy with respect to the action’ issues an official

proclamation, policy, or edict.” Bielevicz, 915 F.2d at 850

(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480

(3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S.
23

469, 481 (1986))). A plaintiff may establish a custom, on the

other hand, “by showing that a given course of conduct,

although not specifically endorsed or authorized by law, is so

well-settled and permanent as virtually to constitute law.” Id.

(citing Andrews, 895 F.2d at 1480). In other words, custom may

be established by proving knowledge of, and acquiescence to, a

practice. Fletcher v. O’Donnell, 867 F.2d 791, 793-94 (3d Cir.

1989).

It is clear under either route that “a plaintiff must show

that an official who has the power to make policy is responsible

for either the affirmative proclamation of a policy or

acquiescence in a well-settled custom.” Bielevicz, 915 F.2d at

850 (citing Andrews, 895 F.2d at 1480). In order to determine

who has policymaking responsibility, “a court must determine

which official has final, unreviewable discretion to make a

decision or take an action.” Andrews, 895 F.2d at 1481. It is

undisputed that Chief Kelly is the relevant decisionmaker in this

case.

In addition to proving that an unlawful policy or custom

existed, a plaintiff also bears the burden of proving that such a

policy or custom was the proximate cause of the injuries

suffered. Bielevicz, 915 F.2d at 850 (citing Losch v. Borough of

Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984)). As we have

explained, “[a] sufficiently close causal link between . . . a

known but uncorrected custom or usage and a specific violation

is established if occurrence of the specific violation was made

reasonably probable by permitted continuation of the custom.”

Bielevicz, 915 F.2d at 851 (quoting Spell v. McDaniel, 824 F.2d

1380, 1391 (4th Cir. 1987)).
24

In this case, the Plaintiffs submitted evidence that, at

best, supports an inference that racial profiling was a common

practice in the Department to increase the number of traffic

tickets issued during the twenty-eight years Kelly was there,

including during the time Chief Kelly was chief of police.

According to Kelly, Chief Kelly should have known about this

profiling because most of the Department knew. In addition, the

Plaintiffs submitted evidence suggesting that Abington

Township police officers regularly used racial slurs, and Kelly

claimed that he was unaware of anyone ever being punished for

them. According to Kelly’s sworn testimony, Chief Kelly would

have known about the profiling and racial slurs unless he was

“totally absent,” which he was not.

Assuming that this evidence, viewed in the light most

favorable to the Plaintiffs, raises a genuine issue of material fact

as to the Department’s practices regarding racial profiling, the

problem facing these Plaintiffs is that any evidence of a policy

or custom ends in 1993 – five years before the first instance of

misconduct alleged in this case. The only evidence they have

after Gerald Kelly retired from the police force consists of

affidavits regarding the behavior that is the subject of their

complaint. James Barry, for example, asserted based on his

personal observations as a floor manager at the Scoreboard that

officers disproportionally harassed and stopped AfricanAmericans customers in 1998 and 1999. Robert Kennedy,

another Scoreboard employee, averred that he had witnessed an

Abington Township police officer harassing an AfricanAmerican customer. And Eugene Chapman, a Scoreboard

customer, claimed that he had been stopped by officers when

leaving the establishment for no apparent legitimate reason.
25

Even assuming these assertions are true, they raise no

inference of a policy or practice of discrimination by the

Department. As we clearly explained in Bielevicz, “a plaintiff

must show that an official who has the power to make policy is

responsible for either the affirmative proclamation of a policy or

acquiescence in a well-settled custom.” 915 F.2d at 850 (citing

Andrews, 895 F.2d at 1480). The Plaintiffs have produced no

evidence relating to any decisionmaker within the Department

after 1993, nor do they even argue that what happened at the

Scoreboard was so widespread that a decisionmaker must have

known about it. Under these circumstances, a Plaintiff does not

raise a reasonable inference of a well-settled custom by restating

the behavior that is the subject of their complaint.

The time lapse here is even more troubling in light of the

character of the evidence in the record. As noted above, “[a]

sufficiently close causal link between . . . a known but

uncorrected custom . . . and a specific violation is established if

occurrence of the specific violation was made reasonably

probable by permitted continuation of the custom.” Bielevicz,

915 F.2d at 851. Typically, “[a]s long as the causal link is not

too tenuous, the question whether the municipal policy or

custom proximately caused the constitutional infringement

should be left to the jury.” Id. Here, however, the only

evidence advanced by the Plaintiffs is evidence that officers at

one point may have used racial profiling as a way to increase the

number of traffic tickets they were writing and may have used

racial slurs. This evidence is simply too general to sustain their

claims. Our cases under Monell have typically involved an

alleged constitutional violation that was an actual occurrence of

the specific alleged custom. In Bielewicz, for example, we

found that there was sufficient evidence of a custom of arresting
26

people for public intoxication without probable cause to support

a § 1983 claim that the plaintiff had been arrested for public

intoxication without probable cause. 915 F.2d at 851-52.

Similarly, in Beck v. Pittsburgh, 89 F.3d 966 (3d Cir. 1996), we

found that the plaintiff’s § 1983 claim for police brutality could

survive a motion for judgment as a matter of law based on

evidence of the department’s alleged custom of ignoring police

brutality. Id. at 976. Here, the Plaintiffs do not have evidence

that the Abington Township Police Department had a custom of

raiding establishments associated with African-Americans. Nor

do they present evidence suggesting that racism permeated the

Department to such an extent that causation could be inferred

absent evidence of a custom relating to the specific

constitutional violation alleged. Coupled with the fact that their

evidence is not from the relevant time-frame, the Plaintiffs have

not advanced sufficient evidence to raise a triable issue of fact

on their Fourteenth Amendment claim. Consequently, the

District Court did not err by granting summary judgment in

favor of the Defendants.

III.

For the foregoing reasons, we will vacate the District

Court’s dismissal of the Plaintiffs’ Fourth Amendment claim,

and affirm its grant of summary judgment in favor of the

Defendants on the Plaintiffs’ Fourteenth Amendment claim.

The case will be remanded to the District Court for further

proceedings consistent with this opinion.