                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       April 27, 2011
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                            FOR THE TENTH CIRCUIT


    PAUL KOZEL, an individual, d/b/a
    The Wranglers Club,

                Plaintiff-Appellee,
                                                         No. 10-7065
    v.                                          (D.C. No. 6:08-CV-00471-FHS)
                                                         (E.D. Okla.)
    JIM DUNCAN,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior
Circuit Judge.


         In this civil-rights action, Defendant-Appellant Jim Duncan, the Sheriff of

Pushmataha County, Oklahoma, interlocutorily appeals from the district court’s

order rejecting his qualified-immunity defense and partially denying his summary

judgment motion. We reverse.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   B ACKGROUND 1

      Plaintiff-Appellee Paul Kozel owns and operates the Wranglers Club, a

dance club and pool hall in Pushmataha County that sells low-point beer to its

patrons. Wranglers admits persons under the legal drinking age, but it excludes

them from a designated bar area. Nevertheless, all patrons are permitted to leave

with a cup and to re-enter with that cup. Local law enforcement agencies have

received complaints of underage drinking in Wranglers. Mr. Kozel recognizes

that eliminating Wranglers’ liberal cup policy could reduce the risk of underage

drinking. Aplt. App., Vol. 1 at 135.

      In January 2007, Mr. Kozel complained to the district attorney’s office

about a sheriff’s deputy who had begun parking his patrol car nightly in the

Wranglers parking lot to watch for illegal activity. The following weekend, more

patrol cars showed up in the Wranglers lot, as well as on the street in front of the

club. Additionally, Sheriff Duncan and his deputies began entering Wranglers

during its hours of operation. According to Mr. Kozel, they “confront[ed]

1
       Preliminarily, we note that on appeal from the denial of qualified immunity,
our jurisdiction is limited to “the purely legal question of whether the facts
alleged by the plaintiff support a claim of violation of clearly established law.”
Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1152 (10th Cir. 2010)
(quotation omitted). “Accordingly, those facts explicitly found by the district
court, combined with those that it likely assumed, form the universe of facts upon
which we base our legal review.” Id. at 1152-53 (quotation and alterations
omitted). “Our jurisdiction also extends to situations where a defendant claims on
appeal that accepting the plaintiff’s version of the facts as true, he is still entitled
to qualified immunity.” Buck v. City of Albuquerque, 549 F.3d 1269, 1276-77
(10th Cir. 2008) (quotation omitted).

                                          -2-
customers, check[ed] their identification cards and perform[ed] sobriety checks.”

Aplee. Br. at 29. They also “shin[ed] their flashlights in” patrons’ faces. Aplt.

App., Vol. 2 at 271, 273. And on at least one occasion, they turned the lights on

inside Wranglers, turned off the music, and “line[d] everyone up for sobriety

tests,” preventing some patrons from using the restroom for over an hour. Id.

      Alleging “the harassment of his patrons” and his business, Mr. Kozel sued

Sheriff Duncan, several deputies, and other law enforcement personnel in federal

district court. Id., Vol. 1 at 42, 50. He advanced claims under the federal

Constitution and state common law. The district court granted the deputies and

other law enforcement personnel summary judgment. But as to Sheriff Duncan,

the district court granted only partial summary judgment, leaving in place

Mr. Kozel’s official-capacity claims for First Amendment retaliation, Fourth

Amendment unlawful entry, and Fourteenth Amendment harassment, and two

state-law claims for assault and battery. And, while the district court found that

Sheriff Duncan in his individual capacity had qualified immunity from the

Fourteenth Amendment claim, the court denied Sheriff Duncan immunity in his

individual capacity from the First and Fourth Amendment claims.

      Sheriff Duncan now appeals from the denial of immunity on those two

federal claims.




                                         -3-
                                     D ISCUSSION

                               I. Standards of Review

      Qualified immunity shields “government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson

v. Callahan, 129 S. Ct. 808, 815 (2009) (quotation omitted). “We review de novo

a district court’s decision to deny a summary judgment motion that asserts

qualified immunity.” Eidson v. Owens, 515 F.3d 1139, 1145 (10th Cir. 2008).

      Summary judgment is appropriate when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). 2 “Because of the underlying purposes of

qualified immunity, we review summary judgment orders deciding qualified

immunity questions differently from other summary judgment decisions.”

Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009) (quotation omitted).

Specifically, when the defendant asserts “the qualified immunity defense, the

burden shifts to the plaintiff, who must meet a strict two-part test by showing

(1) that the defendant violated a constitutional or statutory right, and (2) that this


2
      Amendments to Rule 56 that took effect on December 1, 2010, moved the
summary judgment standard from subsection (c) to subsection (a), changed
genuine “issue” to genuine “dispute,” and changed “[t]he judgment sought should
be rendered if” to “[t]he court shall grant summary judgment if.” See Fed. R.
Civ. P. 56 advisory committee’s note (2010 Amendments). But the “standard for
granting summary judgment remains unchanged.” Id.

                                          -4-
right was clearly established at the time of the defendant’s conduct.” Id.

(quotations omitted). A plaintiff’s failure to meet either requirement requires

reversal of the district court’s order. See Swanson v. Town of Mountain View,

577 F.3d 1196, 1199 (10th Cir. 2009).

                                II. First Amendment 3

      Mr. Kozel contends that Sheriff Duncan retaliated against him for

complaining about the deputy who was conducting surveillance from Wranglers’

parking lot. “Even if an official’s action would be unexceptionable if taken on

other grounds, when retaliation against Constitutionally-protected speech is the

but-for cause of that action, this retaliation is actionable and subject to recovery.”

Howards v. McLaughlin, 634 F.3d 1131, 1143 (10th Cir. 2011) (quotations

omitted). Accordingly, “[t]o establish a First Amendment retaliation claim, a

plaintiff must show that (1) he was engaged in constitutionally protected activity,

(2) the government’s actions caused him injury that would chill a person of

ordinary firmness from continuing to engage in that activity, and (3) the

government’s actions were substantially motivated as a response to his



3
       In relevant part, the First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech.” U.S. Const. amend I. “By their
terms, the provisions of the Bill of Rights curtail only activities by the Federal
Government, but the Fourteenth Amendment subjects state and local governments
to the most important of those restrictions,” including the First and Fourth
Amendments. Oliver v. United States, 466 U.S. 170, 186 n.3 (1984) (citation
omitted).

                                          -5-
constitutionally protected conduct.” Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d

1155, 1165 (10th Cir. 2009).

      The district court recognized the applicability of this three-pronged test, but

engaged in only a summary analysis:

      [Mr. Kozel] complained about [Sheriff] Duncan and his deputies to
      the Pushmataha County District Attorney’s Office and the next
      weekend officers began parking their patrol units in the parking lot
      of Wranglers. The court finds this is an adequate showing to deny
      summary judgment as to this claim. The temporal proximity of the
      conduct justifies a permissible inference as to [Sheriff Duncan’s]
      intent or failure of supervision. [4]



4
       “To establish a violation of § 1983 by a supervisor, as with everyone else,
then, the plaintiff must establish a deliberate, intentional act on the part of the
defendant to violate the plaintiff’s legal rights.” Porro v. Barnes, 624 F.3d 1322,
1327-28 (10th Cir. 2010) (quotations and alteration omitted). Sheriff Duncan
appears to argue that there is insufficient evidence to infer his involvement in the
increased law enforcement presence at Wranglers. But at the qualified-immunity
stage, we may not “review a district court’s factual conclusions, such as the
existence of a genuine issue of material fact for a jury to decide, or that a
plaintiff’s evidence is sufficient to support a particular factual inference.” Zia
Trust Co., 597 F.3d at 1152 (quotation omitted).

       Also, Sheriff Duncan argues in his reply brief that Mr. Kozel’s First
Amendment retaliation claim was not pleaded in the complaint. Because Sheriff
Duncan’s immunity defense can be resolved without addressing his pleading
argument, we do not consider it. We note, however, that the argument has
jurisdictional and prudential problems. See Bryson v. Gonzales, 534 F.3d 1282,
1285 (10th Cir. 2008) (“The only issues that properly belong in an interlocutory
appeal for qualified immunity are the existence of a constitutional violation and
whether it was clearly established at the time of the defendant’s conduct.”); Lauck
v. Campbell Cnty., 627 F.3d 805, 810 n.2 (10th Cir. 2010) (“We decline to
consider arguments raised for the first time in a reply brief.” (quotation omitted)).
Because we do not consider Sheriff Duncan’s pleading argument, Mr. Kozel’s
motion to strike is denied as moot.

                                         -6-
Aplt. App., Vol. 2 at 534 (quotation and citation omitted). Further, the district

court did not address whether the constitutional right purportedly violated was

clearly established.

      We have “the discretion to decide which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.” Swanson, 577 F.3d at 1199 (quotation omitted).

Accordingly, we focus our attention on whether Sheriff Duncan violated a clearly

established constitutional right.

      “Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Zia Trust Co., 597 F.3d at 1155 (quotation omitted). While

there does not need to be a “prior case[ ] with precisely the same facts,” Pierce v.

Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004), “[o]ur inquiry . . . must be

undertaken in light of the specific context of the case, not as a broad general

proposition,” Bowling, 584 F.3d at 964 (quotations omitted). The pertinent

question is “whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation.” Id. (quotation omitted).

      Even if Sheriff Duncan violated the First Amendment by increasing the law

enforcement presence at Wranglers because Mr. Kozel complained about that

presence in the first place, we conclude that “the law did not put [Sheriff Duncan]

                                         -7-
on notice that his conduct would be clearly unlawful.” Id. (quotation omitted). In

arguing that the law was clearly established, Mr. Kozel cites only the general

proposition that the “‘First Amendment bars retaliation for protected speech.’”

Aplee. Br. at 25 (quoting Crawford-El v. Britton, 523 U.S. 574, 592 (1998)). But

that general proposition alone would not place a reasonable officer on notice that

he would violate the law by increasing the law enforcement presence at a bar that

has generated complaints of underage drinking, that maintains a policy of

allowing patrons to exit and re-enter with cups (which may in fact facilitate

underage drinking), and that has complained of the presence of law enforcement

personnel.

      Further, our own independent survey of the case law reveals no sufficiently

analogous Supreme Court or Tenth Circuit case. And there is no clear weight of

authority from other courts showing the unlawfulness of conduct similar to

Sheriff Duncan’s. Indeed, there is authority that arguably supports Sheriff

Duncan’s conduct. See, e.g., Moles v. Griffy, No. 00-2147, 2001 WL 1152984, at

*4 (E.D. Pa. Sept. 18, 2001) (rejecting the plaintiff bar owner’s First Amendment

retaliation claim because, among other things, “[i]ncreased police presence, the

verification of patrons’ ages upon entering the bar, and issuance of citations for

violations of the law are appropriate functions of the police when dealing with an

establishment that is the subject of so many complaints”).




                                         -8-
       Because First Amendment retaliation law was not so clearly established

that a reasonable officer standing in Sheriff’s Duncan’s shoes would have

recognized the unlawfulness of his conduct, qualified immunity applies.

                              III. Fourth Amendment 5

       The district court analyzed Mr. Kozel’s Fourth Amendment claim under the

criteria for warrantless inspections of closely-regulated industries. See United

States v. Johnson, 408 F.3d 1313, 1320 (10th Cir. 2005) (observing that such an

inspection is constitutional if there is “a substantial government interest that

informs the regulatory scheme pursuant to which the inspection is made”; the

inspection is “necessary to further the regulatory scheme”; and “the statute’s

inspection program . . . provide[s] a constitutionally adequate substitute for a

warrant”). In denying Sheriff Duncan summary judgment, the district court stated

that there was no regulatory scheme that justified the entries into Wranglers, and

that they “seem to have been based upon whim.” Aplt. App., Vol. 2 at 535. The

district court did not address whether Sheriff Duncan violated clearly established

law.

       We conclude that the district court erred in applying the closely-regulated

industries exception to the warrant requirement. The entries into Wranglers were

not “administrative inspections designed to enforce regulatory statutes.” New

5
       In relevant part, the Fourth Amendment provides: “The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . .” U.S. Const. Amend IV.

                                         -9-
York v. Burger, 482 U.S. 691, 700 (1987). Rather, given the reports of underage

drinking in Wranglers, officers entered in a traditional investigatory capacity for

“gathering . . . criminal evidence” and enforcing the penal laws. Id.; see also id.

at 712-13 (stating that “[a]dministrative statutes and penal laws may have the

same ultimate purpose of remedying the social problem, but they have different

subsidiary purposes and prescribe different methods of addressing the problem”).

Consequently, because this case does not involve administrative inspections, “the

well-established exception to the warrant requirement for administrative

inspections of ‘closely regulated’ businesses,” id. at 712, does not apply. Cf.

Ferguson v. City of Charleston, 532 U.S. 67, 83 n.21, 86 (2001) (holding that

hospital’s administration of urine tests to detect cocaine use by pregnant women

implicated the Fourth Amendment, and noting that the tests were not analogous to

administrative inspections because they were “specifically designed to gather

evidence of violations of penal laws”).

      The appropriate analysis of the warrantless entries at issue here concerns

whether Mr. Kozel “ha[d] a constitutionally protected reasonable expectation of

privacy” in Wranglers. California v. Ciraolo, 476 U.S. 207, 211 (1986)

(quotation omitted). While “[t]he Fourth Amendment protects an individual’s

reasonable expectation of privacy in commercial premises,” United States v. Bute,

43 F.3d 531, 536 (10th Cir. 1994), “[w]hat a person knowingly exposes to the

public, even in his own home or office, is not a subject of Fourth Amendment

                                          -10-
protection,” Katz v. United States, 389 U.S. 347, 351 (1967). Thus, law

enforcement officers do not need a warrant to enter, during normal hours of

operation, a business that invites the general public inside. See Maryland v.

Macon, 472 U.S. 463, 469 (1985); United States v. Sandoval-Vasquez, 435 F.3d

739, 743 (7th Cir. 2006); Bute, 43 F.3d at 537; United States v. Berkowitz, 429

F.2d 921, 925 (1st Cir. 1970).

      Mr. Kozel argues that the law enforcement entries into Wranglers were

unlawful because, unlike the general public, the officers did not pay the cover fee.

This same argument was rejected by the Seventh Circuit in Andree v. Ashland

County, 818 F.2d 1306 (7th Cir. 1987). In that case, sheriff’s deputies entered the

grounds of an outdoor music festival to check for liquor-law violations, but they

refused to pay the admissions price. The court held that the deputies’ gratuitous

entry was at most a common-law trespass, but it did not “make a constitutional

difference” to whether the festival owners had an objectively reasonable

expectation of privacy in the festival, which was held in a field, open to the

general public, and involved the sale of alcohol. Id. at 1314-15. We agree with

the Seventh Circuit that payment of an entry fee is generally not relevant to the

Fourth Amendment analysis.

      Mr. Kozel also argues that Sheriff Duncan and his deputies exceeded the

scope of Wranglers’ public invitation by “confronting customers, checking their

identification cards[,] and performing sobriety checks.” Aplee. Br. at 29. The

                                         -11-
fact that a law enforcement entry is motivated by an investigatory purpose does

not render the entry unlawful. See Macon, 472 U.S. at 469. But when officers

exceed the limits of consent afforded the general public in the premises, the

Fourth Amendment will be violated. See Lo-Ji Sales, Inc. v. New York, 442 U.S.

319, 329 (1979) (rejecting “the notion that because a retail store invites the public

to enter, it consents to wholesale searches and seizures that do not conform to

Fourth Amendment guarantees”). For instance, in Club Retro, L.L.C. v. Hilton,

568 F.3d 181, 196-97 (5th Cir. 2009), the Fifth Circuit held that law enforcement

officers exceeded the scope of a nightclub’s public invitation “by entering with

weapons drawn in a S.W.A.T. team raid,” searching the club, its attic and a

separate apartment, and seizing and searching the club’s patrons and employees in

an attempt to undercover evidence of narcotics possession, fire-code violations,

and alcohol sales to minors.

      While the law enforcement intrusions into Wranglers were not as

substantial as those that occurred in Club Retro, at least one of the intrusions here

was protracted and involved an assertion of law enforcement authority over the

entire establishment. Officers turned the lights on and the music off. They seized

patrons for over an hour and lined them up for sobriety checks. This conduct falls

outside the limits of consent afforded the general public and violates the Fourth

Amendment.




                                         -12-
      To the extent, however, that there were lesser intrusions, limited in scope to

sheriff’s deputies observing patrons for signs of illegal behavior in the public

areas of Wranglers—including using a flashlight in the darkened areas in order to

visually inspect patrons’ identification—the parameters of the public invitation

were not exceeded. Indeed, even Wranglers’ employees “closely monitor” the

patrons for indications of underage drinking. Aplee. Br. at 7. And, even without

reasonable suspicion, officers may approach individuals in a public place, ask

them questions, and request identification. United States v. Drayton, 536 U.S.

194, 200-01 (2002).

      Although we have determined that there was a constitutional violation in

the prolonged sobriety detention, we must still consider whether a reasonable

officer in Sheriff Duncan’s position would have been on notice that his conduct

was unlawful. Mr. Kozel has not met his burden in this regard. Specifically, his

reliance on Donovan v. Dewey, 452 U.S. 594 (1981), is misplaced. There, the

Supreme Court declared that commercial property cannot be “searched for

contraband or evidence of crime” unless there are exigent circumstances, consent,

or a warrant. Id. at 598 n.6. As noted above, however, there is simply no search

for Fourth Amendment purposes when officers, “albeit motivated by an

investigative purpose,” enter a business that is open to the public and examine

what is readily accessible to the public. 1 Wayne R. LaFave, Search and Seizure

§ 2.4(b), at 627, 629 (4th ed. 2004) (collecting cases).

                                         -13-
      While the proscription against warrantless “wholesale searches and

seizures” of a business open to the public is well established, see Lo-Ji Sales,

Inc., 442 U.S. at 329, it is too general to provide notice that officers violate a bar

owner’s constitutional rights by detaining patrons for sobriety checks after

receiving reports of underage drinking in a bar with a cup policy that may

facilitate underage drinking. Granted, “a general constitutional rule already

identified in the decisional law may apply with obvious clarity to the specific

conduct in question, even though the very action in question has not previously

been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quotations and

alteration omitted). But where, as here, that general rule would not have placed a

reasonable official “on fair notice that the described conduct was

unconstitutional,” it will not defeat immunity. Casey v. City of Fed. Heights,

509 F.3d 1278, 1284 (10th Cir. 2007) (quotations omitted).

      Thus, even though there was a Fourth Amendment violation in detaining

Wranglers’ patrons for sobriety checks, because Fourth Amendment law did not

clearly establish the illegality of that conduct, Sheriff Duncan is entitled to

qualified immunity.

                                     C ONCLUSION

      The judgment of the district court is REVERSED, and this matter is

REMANDED with instructions that Sheriff Duncan’s summary judgment motion

be further granted to the extent he asserts qualified immunity in his individual

                                          -14-
capacity against Mr. Kozel’s First and Fourth Amendment claims. Mr. Kozel’s

motion to strike is DENIED as moot.

                                                Entered for the Court


                                                Jerome A. Holmes
                                                Circuit Judge




                                      -15-
