Opinions of the United
2007 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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
          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




      *
       The Honorable Myron H. Bright, United States Circuit
Judge for the Eighth Circuit, sitting by designation.

                               2
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”)


       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
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

       2
        Watson died on December 25, 2004.

                               4
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

       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,

, 847 (3d Cir. 2000).

                                 5
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

                              6
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

                                7
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

                                8
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



                                 9
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, 

, 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.” 

v. Fauver, 

, 65 (3d Cir. 1996))
(internal quotation marks omitted). At this stage of the
proceedings, “[t]he complaint will be deemed to have alleged

                               10
sufficient facts if it adequately puts the defendants on notice of
the essential elements of the plaintiffs’ cause of action.” 

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.” 

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


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


       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
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, 

, 1142 (3d Cir. 1986). In New York v. Burger, 

(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.” 

(internal
citation omitted). Thus, the closely regulated industry exception
to the warrant requirement, based on Colonnade Corp. v. United
States, 

(1969), and United States v. Biswell, 

(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.” 

(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., 

, 204 (3d Cir. 1980). The warrantless inspection of a

                                13
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.’” 

-03 (quoting Donovan v. Dewey, 

,
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., 

, 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

                               14
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, 

, 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


       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 

.

                                15
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.” 

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 . . . .
                     ....



                               16
        (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

                 17
             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

                              18
      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, 

(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

      6
        The “enforcement bureau” refers to the Bureau of Liquor
Control Enforcement of the Pennsylvania State Police. 47 Pa.
Stat. Ann. § 1-102.

                              19
the PLCB. 

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. 

Pursuant to this request, an officer from the police department
accompanied several PLCB investigators on a warrantless
search of the Lounge. 

search, the officer
discovered the drugs which served as the basis for the criminal
charges brought against Black. 

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.” 

A municipal
policeman, the court explained, is certainly not an enforcement
officer, an investigator, or a member of the board. 

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].” 

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.” 

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

                                20
be “authorized employes” of the board who are under the direct
supervision of board members, as per Section 4-493(21). 

therefore held that the Pennsylvania Liquor Code does
not authorize warrantless searches of licensees by municipal
police officers. 

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, 

. 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; 

.
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.

                                21
Lewiston Hosp., 

, 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, 

, 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, 

(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. 

see also Bielevicz v.
Dubinon, 

, 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.” 

; 

.
       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.” 

(quoting Andrews v. City of Philadelphia, 

, 1480
(3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 

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.” 

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, 

, 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.” 

(citing 

). 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.” 

. 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. 

(citing Losch v. Borough of
Parkesburg, 

, 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.”

(quoting Spell v. McDaniel, 

, 1391 (4th Cir. 1987)).



                               23
        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 African-
Americans customers in 1998 and 1999. Robert Kennedy,
another Scoreboard employee, averred that he had witnessed an
Abington Township police officer harassing an African-
American customer. And Eugene Chapman, a Scoreboard
customer, claimed that he had been stopped by officers when
leaving the establishment for no apparent legitimate reason.


                                24
        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 

(citing

). 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.” 

. 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.” 

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

                                25
people for public intoxication without probable cause to support
a § 1983 claim that the plaintiff had been arrested for public
intoxication without probable 

.
Similarly, in Beck v. Pittsburgh, 

(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. 

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.




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