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Eleventh Circuit Court of Appeals affirms dismissal of civil rights case against Deputy Fire Marshal accused of violating plaintiff nightclub owner’s Fourth Amendment rights by conducting warrantless fire inspection of nightclub

On May 6, 2021, in Fuqua v. Tuner, et al. No. 19-13877, the Eleventh Circuit Court of Appeals affirmed a summary judgment for the defendant law enforcement officers and deputy fire marshal in a 42 U.S.C. § 1983 civil rights case in which the plaintiff, an Alabama nightclub owner, alleged that his Fourth Amendment constitutional rights were violated by a warrantless search of his nightclub performed as part of a fire inspection. The district court dismissed the claims against the law enforcement officers and entered summary judgment for the deputy fire marshal on qualified immunity grounds. On appeal, the Eleventh Circuit considered several issues. First, the Court determined that the district court had not erred in considering the suppression-hearing transcript from the plaintiff’s prosecution for a federal firearms offense related to a weapon seized during the inspection. Although the federal summary judgment rule, Federal Rule of Procedure 56, does not specifically refer to testimony from related judicial proceedings as appropriate record evidence for a Rule 56 summary judgment, the Eleventh Circuit concluded that such testimony can be considered because it is “functionally equivalent todeposition testimony since it is given under oath and with the opportunity forcross-examination.” Second, the Eleventh Circuit determined that the deputy fire marshal was entitled to qualified immunity because a reasonable officer in his position could have believed that the search was being conducted with the “effective consent” of the plaintiff. The Court discussed previous case law concerning consent and derived a “fairly defined picture” of when officers have effective consent to search private residences for evidence of criminal activity: “We know that the mere failure to object to an officer’s entry into the home does not constitute valid consent to the entry, but that some affirmative indication, even if non-verbal, that the officers are welcome to enter may be enough. We also know that an officer cannot procure valid consent by force or intimidation, whether verbal or physical. Finally, we know what factors might tip the determination one way or the other: how many officers are present; whether the officers are armed, whether the arms are visible, and whether they are drawn; whether the agents explain the purpose of the search; and whether the homeowner actively aided the officers in searching his home.” The Eleventh Circuitfound that the facts viewed in the light most favorable to the plaintiff supported a finding that the deputy fire marshal gained admission by a claim of right rather than a request for admission—a finding which would cast doubt on the legality of the inspection, but that “this alone does not come close to the sort of egregious conduct that gives rise to a clear violation in the absence of any on-point case law.” The Court concluded that a reasonable officer in the fire marshal’s position could have believed that he in fact had the plaintiff’s effective consent to conduct the warrantless inspection, even if that was not the case.

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