Opinion
Case No. 4:04-CV-36.
March 24, 2005
OPINION
Plaintiff, Margaret Ann Brant ("Brant"), has sued Defendants, Rick Huff ("Chief Huff"), the Chief of Police of the City of Niles; City of Niles police officers Fulton Moore ("Moore"), William Emral ("Emral"), Kevin Kosten ("Kosten"), and other unnamed officers; and the City of Niles (the "City"), alleging claims under 42 U.S.C. § 1983 for violation of her due process and equal protection rights under the Fourteenth Amendment of the United States Constitution. Brant's claims arise out of her allegations that Defendants have harassed Brant and her customers in order to interfere with Brant's bar business and her right to pursue her occupation. Now before the Court is Defendants' motion for summary judgment. For the reasons stated below, the Court will grant the motion and dismiss Brant's complaint with prejudice.
Brant also alleges that this case arises under the common law of the State of Michigan and that the Court has pendent jurisdiction (presumably referring to the supplemental jurisdiction statute, 28 U.S.C. § 1367) "to entertain claims arising under state law." (Compl. ¶¶ 1, 2.) In spite of these allegations, Brant does not allege any state law claims, as her complaint contains only two counts, both of which allege violations of § 1983. Therefore, the Court finds that the only claims alleged in this case are the federal claims under § 1983 .
I. Facts
Brant has owned and operated a bar called Lake Street Watering Hole (the "bar") since 2000. The bar is located at 1031 Lake Street, Niles, Michigan. Brant and Ronald Grifka are the shareholders of Lake Street Watering Hole, Inc. ("LSWHI"), which holds the bar's Class C liquor license.Brant alleges that from the time she opened the bar until the present, Defendants and other police officers have been harassing Brant and her customers in order to discourage customers from going to the bar and to prevent Brant from pursuing her occupation. In particular, Brant alleges that police officers have: (1) followed customers leaving the bar and occasionally arrested them for drunk driving and other violations; (2) issued parking tickets to Brant and towed her vehicle; (3) parked near the bar and staked out its customers, employees, and family members; (4) stopped customers in the vicinity of the bar after "herding" or "red-lighting" them into that area; (5) repeatedly driven down the alley separating the bar from its parking lot and driven through the bar parking lot harassing and intimidating Brant and her customers. (Compl. ¶ 9(a)-(d).) Brant also claims that on one occasion, Defendant Moore went into the bar after investigating a fight between a man and his wife outside the bar and stated in front of customers, "the clientele who come in her are nothing but a bunch of lowlife riffraff." (Id. ¶ 9(f).)
Brant alleges that in January 2002, she and other bar owners complained to Chief Huff about police harassment of bars and that the main complaint concerned "the constant harassment and conduct of Defendant, Fulton Moore," but the complaints apparently went unanswered. (Id. ¶ 10.) Brant claims that she has been singled out by Defendants because her bar is the only bar in the City that has been charged for overserving customers since 1997. (Id. ¶ 13.) According to Brant, most recently, she received a seven-day license suspension for failing to complete alcohol management training before December 11, 2003. Brant asserts that although the police department confiscated her license, as it was required to do, it failed to post the property announcing the suspension, and as a result, she received an additional seven-day suspension. (Id. ¶¶ 14-16.)
Brant filed her complaint in this case on March 10, 2004. She alleges that Defendants' conduct has diminished the value of her business and precluded her from engaging in her occupation. Brant also alleges that Defendants have engaged in selective enforcement activity against her because of her gender.
II. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party.Id.
The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quotingMatsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).
III. Discussion
Defendants contend in the instant motion that summary judgment is proper because Brant cannot show either a substantive due process or equal protection violation. Defendants also contend that Brant's claims against the City must be dismissed because Brant cannot show the existence of a custom or policy of the City that caused the alleged violation and that the individual defendants are entitled to qualified immunity. Finally, Defendants assert that Brant lacks standing to assert alleged violations of her customers' constitutional rights.
As a preliminary matter, the Court will address Defendants' argument regarding the sufficiency of Brant's evidence in support of her response in opposition to Defendants' motion. It is well-established in the Sixth Circuit that evidence offered to support or oppose a motion for summary judgment must be admissible. See Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003) (stating that "[i]f the comments are deemed to be hearsay, then the evidence could not be considered on summary judgment"); Williams v. York Int'l Corp., No. 01-3699, 2003 WL 1819637, at *5 (6th Cir. Apr. 3, 2003) ("Hearsay is inadmissible in affidavits submitted in conjunction with, or in opposition to, motions for summary judgment."). This rule comes from the language of Rule 56(e), which states, "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Thus, statements in an affidavit that are hearsay or that constitute nothing more than conclusory allegations or subjective beliefs must be excluded from consideration of a summary judgment motion. See Mitchell v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992) (noting that the district court properly refused to consider the plaintiff's affidavit, which contained statements that were nothing more than rumors, conclusory allegations, and subjective beliefs). Brant's affidavit contains both admissible and inadmissible statements. For example, Brant's observations in paragraph 3 regarding nightly bar checks by police officers are admissible because they appear to be based upon Brant's personal knowledge. In contrast, Brant's statement in paragraph 3 that police officers make nightly bar checks "for no reason other than to harass and intimidate me and my customers and drive me out of business," is a mere unsupported conclusion. (Brant Aff. ¶ 3, Pl.'s Answer Defs.' Mot. Ex. B.) Similarly, Brant's statement in paragraph 4 that her customers are frequently followed after they leave the bar and her statement in paragraph 6 that "many former customers at my bar have informed me that they no longer attend because of the high density of police patrols at the bar as well as their fear of being pulled over or followed by the police upon leaving" are based upon hearsay and thus are inadmissible. (Id. ¶¶ 4, 6.) While the Court need not conduct an exhaustive review at this point of the contents of Brant's affidavit or other evidence for admissibility, it will, as Defendants urge, consider only admissible evidence in determining whether Brant has sustained her burden of demonstrating a genuine issue of material fact.
A. Standing
Defendants first contend that to the extent she seeks to assert such claims, Brant lacks standing to assert claims based upon her allegations that police officers violated her customers' rights. In response, Brant acknowledges that she does not have standing to assert claims based upon violation of her customers' rights, but she states that the claims she is asserting are based solely upon violation of her own rights. Based upon its review of Brant's complaint, the Court does not interpret Brant's allegations or claims as raising anything other than the alleged violation of Brant's own rights. As the Court understands it, Brant's references to traffic stops or arrests of her customers pertain solely to her allegation, discussed below, that Defendants, through their arbitrary conduct, have violated Brant's right to pursue her occupation. Therefore, Brant has standing to assert her claims.
Although the bar's liquor license is held by a corporation, Defendants do not argue that Brant lacks standing on the grounds that a shareholder cannot maintain a § 1983 claim for damage suffered by the corporation in which he or she owns shares. See Goutos v. Vill. of Summit, No. 93 C 601, 1995 WL 794569, at *2 (N.D. Ill. Dec. 8, 1995). In contrast to the circumstances inGoutos, however, Brant has standing because she has alleged and shown that she operates the bar and that the business is her sole source of income.
B. Due Process Claim
Defendants assert that Brant fails to allege a substantive due process claim. Noting that Count I lacks clarity with regard to the precise nature of the claims asserted, Defendants analyze Brant's due process claim as alleging separate claims for harassment and interference with her right to engage in the occupation of her choice under the Substantive Due Process Clause. Based upon its own review of the complaint, as well as Brant's response, the Court determines the due process claim to be that Defendants violated Brant's right to pursue her chosen occupation without arbitrary interference. In fact, Brant's sole authority in support of her due process claim is Benigni v. City of Hemet, 879 F.2d 473 (9th Cir. 1989), in which the Ninth Circuit affirmed a jury verdict in favor of the plaintiff on his claim that the defendants violated his right to pursue his occupation. Benigni is not unique, because the right to choose and engage in an occupation is well-recognized. In Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989), the Sixth Circuit stated: "This Court has long held that the `freedom to choose and pursue a career, "to engage in any of the common occupations of life," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L.Ed. 1042 (1923), qualifies as a liberty interest which qualifies as a liberty interest which may not be arbitrarily denied by the State.'" Id. at 831 (quoting Wilkerson v. Johnson, 699 F.2d 325, 328 (6th Cir. 1985)). See also Bower v. Vill. of Mount Sterling, No. 00-3418, 2002 WL 1752270, at *3 (6th Cir. July 26, 2002) ("Under [ Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972)], the Due Process Clause encompasses the liberty to pursue one's trade, profession or calling, but does not grant the right to a specific job."); R.S.S.W., Inc. v. City of Keego, 18 F. Supp. 2d 738, 745 (E.D. Mich. 1998) (holding that the plaintiffs stated a claim for deprivation of their liberty interest to conduct their chosen profession where the plaintiffs alleged that the defendant city and its police officers engaged in a campaign of harassment because the plaintiff refused to close its bar establishment before the legal closing time).
In Sanderson v. Village of Greenhills, 726 F.2d 284 (6th Cir. 1984) (per curiam), the plaintiff sought to open a pool hall within the defendant village. The plaintiff contacted the village administrator to inquire about whether a license for the proposed use was necessary under the village's ordinance requiring a license for "amusement devices." The administrator informed the plaintiff that the ordinance was not applicable because it regulated only coin operated devices. However, one unidentified village council member stated that the plaintiff would need, but could not obtain, approval from the council. Proceeding upon the administrator's advice that a license was unnecessary, the plaintiff opened his business. Three hours after it opened, the police chief ordered the pool hall closed as a consequence of being unlicensed. The police chief gave the plaintiff an application for a license but told the plaintiff that he would not receive a license. The plaintiff closed his business and then filed suit against the village for violation of his civil rights. The Sixth Circuit held that the plaintiff failed to establish a due process violation based upon deprivation of a property interest because the plaintiff's business was not covered by the ordinance and the plaintiff was not entitled to a license. However, the court held that the plaintiff presented sufficient evidence to show a deprivation of a liberty interest "to engage in whatever legal business he elects to pursue without arbitrary interference."Id. at 286. The court observed:
Although the defendants, and the court below, are quite correct in asserting that there can be no unfettered freedom to engage in a business which may be properly regulated pursuant to a municipality's general police power, such an assertion does not resolve the issue of whether the clear freedom, or liberty, to engage in even a potentially regulated business was properly circumscribed in this case.Id. at 287. The court reasoned that the plaintiff's evidence that village officials interfered with his business "simply [because they] did not desire a billiard parlor in the village" demonstrated arbitrary and unconstitutional conduct. Id.
In San Jacinto Savings Loan v. Kacal, 928 F.2d 697 (5th Cir. 1991), the Fifth Circuit held that the owner of a soda fountain and arcade presented sufficient evidence to establish deprivations of her property interest in the profits of her business and her liberty interest in operating her business based upon police officers' harassment of her patrons. The plaintiff presented evidence showing that police officers repeatedly harassed her teenage patrons at her place of business, threatened to arrested patrons if they did not leave, prevented patrons from entering the parking lot, and stopped at least one vehicle on the way to the arcade and told the occupants to turn their car around. The court held that this evidence was sufficient to allow the plaintiff to show "that the officers, acting under color of state law, sought to remove or significantly alter her liberty and property interests in [her business] without due process of law." Id. at 704.
Based upon the foregoing, Brant may assert a due process claim for deprivation of her liberty interest in pursuing her occupation and/or operating her business if she can show that the officers sought to alter or destroy her liberty or property interests in her business through a campaign of harassment. The question is whether Brant has presented sufficient admissible evidence to show arbitrary and unconstitutional conduct by the police officers that has caused an injury to Brant or her business. Brant's evidence in support of this claim comes primarily from her affidavit. The admissible evidence of harassment is as follows:
1. Police officers perform "bar checks" by driving through the bar parking lot, down the alley adjacent to the bar between the bar and the parking lot, or down the alley north of the bar which T's into the alley between the bar and the parking lot. Brant states that her video recordings show 63 such checks between January 1, 2003, and October 2, 2004. (Brant Aff. ¶ 3 Exs. A B.)
2. Police officers have ticketed and towed Brant's vehicle for no reason. (Id. ¶ 4.)
3. On a Saturday afternoon, Defendant Moore went into the bar and announced, "the clientele who come in here are nothing but a bunch of low life riffraff." (Id.)
4. Police officers "stake out" streets near the bar on a nightly basis and often stop vehicles in front of or near the bar, and if the vehicle is traveling west on Lake Street and the stop is initiated to the east of the bar, the officers will "herd" or "red light" the stops into the bar parking lot. (Id. ¶ 5.)
Brant also states in her affidavit that her "customers are frequently followed from the lounge and sometimes arrested," and "[t]hat many former customers at my bar have informed me that they no longer attend because of the high density of police patrols at the bar as well as their fear of being pulled over or followed by the police upon leaving." (Id. ¶¶ 4, 6.) However, these statements are hearsay and, as noted above, may not be considered for purposes of determining whether Brant has met her burden of demonstrating a genuine issue of material fact.
The Court concludes that this evidence is insufficient to show that the police officers engaged in a campaign of harassment against Brant and her customers in order to interfere with Brant's operation of her business because only two out of four identified circumstances relate directly to Brant or her customers. That is, Brant was ticketed and her vehicle was towed on one occasion without justification, and Defendant Moore disparaged Brant's customers on one occasion. The remaining circumstances — patrolling the area by driving down adjacent or nearby alleys and ticketing vehicles in the area for traffic violations — constitute legitimate police conduct, and Brant has offered no evidence showing that the police were specifically targeting her customers or that her customers were involved in these activities. Nor has Brant suggested that any of the traffic citations were a ruse or that the police officers lacked any legitimate reason for patrolling the area around her bar. Moreover, to the extent Brant relies upon the charge for overserving customers as support for her due process claim, Brant has not shown, nor does she even argue, that the charge was baseless.
It is unclear whether Brant claims that the ticket was issued or the vehicle was towed, or both, without justification.
Brant's only evidence of motive for the alleged harassment is that she is a woman bar owner. However, as it relates to the due process claim, by Brant's own admission the police officers meted out equal treatment to all bar owners because other bar owners complained to Chief Huff about "this police conduct," including "the constant harassment and conduct of Defendant, Fulton Moore." (Brant Aff. ¶ 8.)
In other cases where courts have allowed similar due process claims to proceed, the evidence was much more compelling because the police were physically present on the plaintiff's premises or they directly harassed the plaintiff's customers. For example, inBenigni, the evidence presented at trial showed
that police officers checked the Silver Fox as often as five or six times per evening, that officers went behind the bar, searched in drawers, shined flashlights in patrons' faces, requested identification of persons obviously over 21, and walked through the bar with their hands on their guns.879 F.2d at 477. Although some of the evidence in Benigni was similar to the evidence presented in this case (for example, staff and customers frequently received parking tickets, police officers frequently parked across the street from the bar, and cars were often stopped in the vicinity of the bar), the evidence suggesting that the police officers' conduct was arbitrary and specifically designed to harass was much more substantial than the evidence in this case. In Callaghan v. Congemi, Civ. A. Nos. 91-1496, 91-2897, 1992 WL 124809 (E.D. La. June 1, 1992), the court denied the defendants' motion for summary judgment because the plaintiffs' evidence showed that police officers frequently visited the bar to check customers' identification and chased away customers congregating outside the bar. See id. at *2. Similarly, inKacal, discussed above, police officers threatened to arrest patrons if they did not leave the premises, prevented patrons from entering the plaintiff's parking lot, searched a patron and his car, glove box, console, and trunk, and forced a vehicle en route to the plaintiff's business to turn around. See 928 F.2d at 699-700, 703. See also Reed v. Vill. of Shorewood, 704 F.2d 943, 947 (7th Cir. 1983) (the alleged harassment included arresting customers and employees on baseless charges, demanding proof of age from customers who were obviously many years beyond the drinking age, and bringing groundless proceedings to take away the plaintiffs' liquor license); Goutos v. Vill. of Summit, No. 93 C 601, 1995 WL 794569, at *1 (N.D. Ill. Dec. 8, 1995) (allegations of harassment included issuing parking tickets to patrons while parked on private property, randomly stopping Hispanic patrons without probable cause, stopping certain planned lawful events, and closing the plaintiffs' bar without probable cause and without a hearing). In short, Brant's evidence is insufficient to permit a reasonable jury to conclude that the police officers' alleged conduct constituted anything other than legitimate law enforcement activity that was not intended to infringe Brant's due process rights.
C. Equal Protection Claim
Brant's other claim is that Defendants engaged in selective enforcement of the law against her on the basis of her gender. "Selective enforcement claims are judged according to ordinary Equal Protection standards, which require a petitioner to show both a discriminatory purpose and a discriminatory effect." Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000). The Sixth Circuit applies a three-part test for evaluating selective enforcement claims:
First, [an official] must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Second, [the official] must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to.Id. at 319 (quoting United States v. Anderson, 923 F.3d 450, 453 (6th Cir. 1991)).
In support of her claim, Brant argues that since 1997, she is the only bar owner to have been charged with overserving a customer. Brant concedes that Defendants have taken enforcement action during this period against other bars, including the Corral Bar, Inc., A.A. Timberlanes, Inc., and Charlie's Colonial Bar, Inc., all of which are owned by both men and women, as is the case with Brant's bar. Brant asserts, however, that none of those bars has been charged with overserving since 1997, and that while it is true that the liquor license is held by LSWHI, which is owned by Brant and Ronald Grifka, the bar is her sole source of income and Grifka does not actively participate in the business. As for the recent enforcement activity against Niles Riverfront Café, LLC and RJC Corporation, d/b/a Port of Call, for sale of alcohol to a minor, Brant claims that these violations were the result of a sting operation conducted in order to diffuse Brant's complaint to Chief Huff in January 2002 and the allegations in Brant's complaint. Brant seeks to show unequal treatment by pointing out that there have been three instances of obvious overserving by bars run by men with no charges being filed with the Michigan Liquor Control Commission ("MLCC"). In addition, Brant points out that she has video taped 63 instances of police officers performing drive-through bar checks and 23 traffic citations have been issued on Lake Street in the area near her bar.
Brant's claim fails because the evidence does not show that Brant's gender was the motivating factor behind Defendants' enforcement activities against Brant. Brant incorrectly states that her bar is the only bar that has been charged with overserving since 1997. As Defendants note, the records Brant obtained from the MLCC in response to her FOIA request show that Brant's bar had violations on February 9, 2002, and May 6, 2002, for overserving. The February 9, 2003, violation resulted in a fine of $1,270 and a waived suspension, and the May 6, 2002 violation resulted in a fine of $1,600. Those same records show that Scottie's Bar Grille, Inc. was cited for the same violation on May 15, 1997, and received a $1,000 fine. Scottie's was cited again on January 10, 1998, for the same violation and received a suspension and a $2,000 fine. Thus, Brant's own evidence shows that she was not treated differently because she is a woman.
The Court must also reject Brant's claim because the evidence regarding the three allegedly uncharged incidents of overserving (offered to show dissimilar treatment) is inadmissible. The details of these incidents, which are set forth in Brant's affidavit, are based upon hearsay that was related to Brant by others or taken from the police reports attached to Brant's response brief. Moreover, the police reports do not help Brant. Although the police reports themselves are admissible under Rule 803(8)(C) of the Federal Rules of Evidence, statements to officers by third parties, such as victims or suspects, are hearsay and are not admissible under Rule 803(8)(C). See Miller v. Field, 35 F.3d 1088, 1091 (6th Cir. 1994). Thus, the statement by Devon Burger that he had five or six beers at the Colonial bar is inadmissible. (2/2/02 Incident Report, Pl.'s Answer Defs.' Mot. Ex. G.). In addition, the police report regarding the Debra Edstrom incident lacks any statement that Edstrom was drinking at the Colonial Bar. (2/18/03 Incident Report, Pl.'s Answer Defs.' Mot. Ex. F.) Similarly, although the police report regarding the William Linn incident states that Linn was found intoxicated outside of Aladins night club, there is no statement in the report that Linn was drinking at that bar. (5/6/02 Incident Report, Pl.'s Answer Defs.' Mot. Ex. H.)
Furthermore, the numbers Brant cites — 63 video taped drive-through checks and 23 traffic citations — are meaningless because, standing alone, they do not show that Brant's bar was treated any differently than bars owned or operated by men. As the Sixth Circuit has observed in the employment discrimination context:
Appropriate statistical data showing an employer's pattern of conduct toward a protected class as a group can, if unrebutted, create an inference that a defendant discriminated against individual members of the class. To do so, the statistics must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity.Barnes v. GenCorp, Inc., 896 F.2d 1457, 1466 (6th Cir. 1990). Here, Brant has failed to provide a basis for concluding that police activities occurred more frequently at her bar than at other bars within the City. Thus, these raw numbers lack any probative value regarding discrimination against Brant.
D. Municipal Liability
Defendants have also moved for dismissal of the claims against the City. Where a municipality's liability is based upon the alleged unconstitutional actions of its employees, a court may properly dismiss the plaintiff's claims against the municipal defendant where the plaintiff fails to demonstrate a constitutional violation. See Ewolski v. City of Brunswick, 287 F.3d 492, 516 (6th Cir. 2002); Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001).
E. Qualified Immunity
Defendants have also raised the argument that the individual defendants are entitled to qualified immunity. "If the court finds no valid claim pursuant to 42 U.S.C. § 1983, the court need not reach the issue of qualified immunity." Mays v. City of Dayton, 134 F.3d 809, 813 (6th Cir. 1998); see also Blair v. Meade, 76 F.3d 97, 100 (6th Cir. 1996) (noting that a court reaches the issue of whether the alleged right was clearly established only if it first concludes that the plaintiff has established a violation of a constitutional right). Therefore, it is unnecessary for the Court to decide the issue.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants' motion for summary judgment.
An Order consistent with this Opinion will be entered.