Thought you might be interested in the attached.

Kevin Wood, 9/18/03

Panama City News Herald

Letter to the Editor

37¢ Forum

September 16, 2003

High Hurdles, Even for Tunnell to Step Over

As Paul Harvey would say: "And now for the rest of the story."

United States District Court Judge Stephan Mickle did not make the conclusions of fact and law that he made on the Sundancer matter in his May 18, 2000 order, which denied Sheriff Tunnell's motion for summary judgment on the merits, by watching television reports or reading newspaper reports on the Sundancer events during 1997-1998.

Judge Mickle instead reviewed depositions, affidavits, exhibits, interrogatories, admissions, and other evidence in the federal court record before him.  Cases are tried in court, not in the media in this country.

To the contrary, the public in Bay County has not had the opportunity to directly review the substantial evidence against Tunnell that is in the record.  This is the evidence and record that the Florida Senate Ethics and Election Committee will have a hard time ignoring.  National security clearance investigators and adjudicators will also not ignore this and other compelling evidence.

Nor should they ignore the fact that the most powerful and politically influential civil rights organization in the Country, the NAACP, is opposing Sheriff Tunnell's appointment, and has the power to influence elections for both governor and president.

After looking at the evidence, Judge Mickle, a "reasonable" federal judge, concluded:

"[f]rom the beginning, Sheriff Tunnell doubted the veracity of the complaints and his deputies determined that many of them were false.  It appeared that the residential neighbors did not want a "Black club" in their area and were reporting false complaints to force the club into closing...Captain Hendrix, stated that he knew how to close the club down...the most serious conflict with the Sheriff's office occurred during the early morning hours of New Year's Day, 1998.  Between 1:00 and 2:00 A.M., a number of deputies gathered as the E-Z Serve Store next to the Sun Dancer.  From there, approximately eighteen deputies lined up and then entered the club.  When Ms. Farr asked them why they were there, no one offered an explanation...Inside, one deputy asked a patron for identification.  When the patron produced it, the deputy twisted the patron's arm behind him and arrested the patron for resisting arrest.  After the patron was taken outside, Ms. Farr also walked outside and saw deputies' cars all around the Sun Dancer and deputies and their canines patrolling the parking lot...On January 5, 1998, Sheriff Tunnell sent a letter to the Bay County Commission urging them to file an injunctive suit against the Sun Dancer to shut it down...Sheriff Tunnell's actions took the form of persistent, unreasonable searches of the Sun Dancer's premises and harrassment of its patrons...a reasonable jury could conclude that the defendants [Tunnell and Bay County Commissioners] acted with a discriminatory purpose...many, including Sheriff's officers, thought that the Sun Dancer was not a nuisance and just like any other club in the area...it appears that Sheriff Tunnell and the Commission undertook to close the Sun Dancer down solely because the neighbors (and as a consequence they, too) did not want a Black club around...circumstantial evidence suggests that many of these complaints were bogus and that the Sheriff and the commissioners well knew it.  Nevertheless, the Sheriff, in accord with his meetings with commissioners, increased his presence at the Sun Dancer and provoked problems at the club, including the problems that occurred on New Year's Day, 1998...[t]he evidence, taken as a whole and in the light most favorable to Ms. Farr, suggests that Sheriff Tunnell and the Commission engaged in a common plan, motivated by racial animus, to close the Sun Dancer down [and] shows that the Sheriff's office harassed her customers and even closed down her business on New Year's Day, 1998."

Larry Bodiford of Bay County, another "reasonable" and credible federal magistrate, had characterized one neighborhood meeting that he attended as "nasty and racial in its overtones" as recognized by Judge Mickle from a letter in the record signed by Magistrate Bodiford.

Most importantly, Sheriff Tunnell will definitely be required to have a national security clearance because the FDLE Commissioner holds a crucial leadership position in matters of national and Florida homeland security.  Former Commissioner Tim Moore had pointed out during his tenure that FDLE cannot do its job without the ability to share national security information with federal authorities.  FBI Chief Mueller pointed out that it is a federal crime to share this information with state officials unless they have a national security clearance.

The FDLE Commissioner must be able to communicate and cooperate with federal authorities to protect the citizens of Florida and of the other states where threats to the rest of the country may have its origins in Florida, or from threats passing through Florida's borders involving terrorist objectives elsewhere in the country or throughout the world.

Current FDLE Deputy Commissioner Jim Sewell has a national security clearance.  Mr. Sewell has also advised me that acting FDLE Commissioner Daryl McLaughlin has one, as does former FDLE Commissioner Tim Moore.  Tunnell will be required to have one or he cannot do his job, period.

Therefore, the Senate Committee on Ethics and Elections will be bound to review Tunnell's qualifications against the backdrop of national security guidelines approved by the President of the United States for all persons requiring access to classified information.  These guidelines are posted on the Internet.

This is not good news for Sheriff Tunnell, even if his sponsor, Jeb Bush, is the brother of the President.  Although blood may be thicker than water, national and state security is unquestionably thicker than blood as President Bush has shown us in Iraq.

If Jeb were to seek his brother's assistance to protect Sheriff Tunnell from the full gamut of a full-blown national security background investigation, this would be fodder for a national scandal of epic proportions, considering the President's uncompromising policy on homeland security matters---Great material for the media during the upcoming elections for president and governor.

The requirements for a national security clearance far exceed the 3-day quickie "investigation" done by the Florida Highway Patrol in response to a phone call from the office of the governor's drug Czar, Jim McDonough.

National background investigators will talk to coworkers, employees, friends, family, and others that may have information that Tunnell or Jeb would rather not come out in the sunshine.

They will look at the evidence in the Sun Dancer case and talk to the victims who were battered and injured during the Sheriff's planned raid on the Sundancer on January 1, 1998.  They will review the numerous federal civil rights complaints filed against Tunnell with the U.S. Department of Justice, Civil Rights Division, Office of Coordination and Review, agent Wonder Moore Davis.

They may even interview me, former FHP Captain Bill Tindall, one white Sun Dancer neighbor who recently came forward and heard Tunnell tell white neighbors words to the effect of "be patient, the club will be gone soon", and others that are coming forward with character and conduct issues involving Tunnell that would be of interest to national security investigators.

They will view the January 1, 1998, videotape of eighteen deputies entering the Sundancer without a reason to do so and the club owner asking them on tape why they were there without receiving an answer.

They will talk to the two Air Force Airmen that were assaulted, battered and falsely arrested that day.  They will look at one Airman's, Lincherria Barnes', medical records at Eglin Air Force base that documented the injuries she received while pleading with deputies to stop beating her friend who had a history of seizure disorders.

Investigators will look to see if other citizens' constitutional rights have been trampled in Bay County in other cases.  They will find that at least two citizens who have been arrested or threatened with arrest to prevent them from entering the courthouse to attend civil and criminal (Randy Fowler) proceedings to which they are a party (and Tunnell doing nothing about it and condoning the conduct), they will find one citizen falsely prosecuted for stalking a public official merely because this citizen was seeking public records, they will find another unarmed African-American citizen having been shot twice in the back by deputies, and they will find another citizen falsely arrested and prosecuted for exposing law enforcement's and the state attorney's illegal "cash register justice" scheme.

They will also find other things that Jeb and Guy would rather have ignored.  The term "supplanting" has arisen from one source involving federal funds and DUI programs.  The Senate Committee should find these things before it even gets to a national security investigation team.  In the interests of national and state security, these things should come out before Tunnell steps one giant foot in the Tallahassee FDLE office in October.

Any person who has "[i]nvolvement in activities which unlawfully advocate or practice the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the United States or of any state" may be disqualified from holding a security clearance under the President's guidelines.  Involvement in such conduct raises questions of a person's allegiance to the United States and its constitutional form of government.

Were the patrons of Sun Dancer denied their rights by police power, assaults, and batteries on New Year's Day, 1998?  Are citizens who are arrested by force, or threatened with force, to keep them from entering a public courthouse to attend criminal and civil hearings in which they are defendants or plaintiffs denied their rights?  Of course they all were.

It will be the Senate Committee's job to determine if Sheriff Tunnell could pass a national security background investigation and adjudication.  That is a prior qualification for the job.  If the Committee is aware that Sheriff Tunnell has events or patterns of conduct that would disqualify him from holding the position, it is then their duty to abandon party line voting strategies in the interests of homeland security and the safety of citizens of Florida and the United States, and declare Tunnell a threat to state and national security.

African-American, or other, employees of FDLE should also be interviewed and polled on how they feel about Tunnell's appointment after they are permitted to read Judge Mickle's order.  How can Tunnell lead subordinates who may find issue with his character and prior conduct?

I have been told by one FDLE employee in Tallahassee that thirty-year FDLE veteran Daryl McLaughlin, current acting Commissioner of FDLE, was the preferred candidate by FDLE employees.  Mr. McLaughlin already has a security clearance and is arguably better qualified than Tunnell.

Citizens in Bay County have not been safe from Tunnell's intimidation and bully tactics.  Nor will any other citizen, particularly African-Americans, if Tunnell is allowed to wield the tremendous power that accompanies the position of Commissioner of FDLE.

Several years ago former Florida Governor Lawton Chiles asked game commission appointee Joe Bruner, during a long and contentious Senate committee hearing as Tunnell is now going to face, to step down.  Maybe it is now time for Jeb Bush to ask Tunnell to do the same because Tunnell's conduct, a possible federal crime under 18 U.S.C. 241 and 242, is far more of a threat to national and state security and to the safety of this country's citizens than Bruner would ever have posed to the cottontail bunnies running through the woods.

Of course, Jeb will talk to George, Neill, St. Joe-Arvida officials, and other family members before making his decision in the best interest of the American People.

Kevin Wood

Panama City, Bay County, Florida

Activists lash out at Tunnell

BAY SHERIFF: 1998 Sundancer case raises questions for new top cop.

By Anthony Cormier
News Herald Writer
747-5089 / acormier@pcnh.com

A 1998 federal court ruling has political activists across the state fuming at Bay County Sheriff Guy Tunnell’s appointment as Florida Department of Law Enforcement commissioner.

The National Association for the Advancement of Colored People is decrying Gov. Jeb Bush’s decision. NAACP officials labeled Tunnell a racist for his role in the controversy surrounding a predominantly black Panama City Beach nightclub more than five years ago.

"A federal judge found some interesting stuff that happened at the Sundancer," said T.H. Poole, a longtime NAACP leader from Eustis. "What the judge has said is that (Tunnell) didn’t have a right to put those people out. He made up charges and found a way to get that club shut down.

"Yes, we do think that is racist."

The Sheriff’s Office, prompted by county officials and residents near the Thomas Drive club, arrested 16 people outside the Sundancer during a disturbance on New Year’s Eve 1998.

At least half of those arrested were acquitted or had charges dropped, and club owner Cindy Farr claimed the fracas was racially motivated. To a degree, U.S. District Judge Stephan Mickle agreed.

Farr later sued Tunnell and Bay County commissioners. Mickle ruled that the suit presented enough evidence that a reasonable jury, if it considered the evidence in a light most favorable to the plaintiffs, could find that the club was the victim of racial discrimination.

The suit eventually was dismissed because the business was owned by a partnership, Herron & Farr, giving Cindy Farr no legal grounds to sue.

Mickle’s ruling did not call Tunnell a racist, as some activists claimed. But the court found it was the first time the sheriff went to the County Commission to have a nightclub closed, calling the action "unprecedented."

Mickle also said there was enough evidence provided by Farr for a jury to decide whether the Sheriff’s Office overstepped its bounds and searched patrons. He also suggested that it could be found it was the Sheriff’s Office, not the patrons, causing the problem.

However, the registered owners of the club never refiled the suit and the questions were never addressed in court.

Tunnell, 52, has repeatedly declined comment on the issue. But Poole and Adora Obi Nweze, Florida’s NAACP president, called for Bush to rethink his appointment based on the lawsuit.

"We are in complete disagreement with this appointment," Nweze said at an August press conference, "and we would wish the governor to please take time and investigate those people he definitely wants to have in various spots."

Said Poole: "The federal judge is suggesting the sheriff lied. Normally a federal judge’s opinion carries heavy weight in the judicial system."

The Florida Cabinet unanimously approved Tunnell on Aug. 26, although Treasurer Tom Gallagher questioned why the background check was not completed before the appointment.

Nevertheless, the governor backed his decision.

"Being the sheriff is a tough job," Bush said in response to the accusations. "But I know Guy Tunnell and I know he’s not a racist."

Tunnell, a Republican, is slated to take over for James "Tim" Moore on Oct. 1. The appointment won’t be official, however, until Tunnell is confirmed by the Florida Senate.

Senate confirmation proceedings likely will take place during the regular legislative session next spring. The appointment first will go to the Senate Committee on Ethics and Elections, and then to the full Senate for a vote.

Republican Sen. Anna P. Cowan of Leesburg, the committee’s chairwoman, said her staff would review several appointees during the next session. She said she was aware of the NAACP’s complaints, but could not remember an appointee being rejected by the committee.

"I know that there’s a controversy," Cowan said in a phone interview. "And I have purposefully not gotten in the middle of it. The committee staff will make sure a full investigation is done, as it would have been done anyway."

The Committee on Ethics and Elections is composed of six Republicans and four Democrats. Sen. Mandy Dawson, D-Fort Lauderdale, expressed concerns about Tunnell’s appointment to the capital media corps, but did not return repeated calls for comment.

CHECKED BY THE FHP

The Florida Highway Patrol handled the background check on Tunnell and sent its findings to The News Herald. The investigation was requested on Aug. 25 and completed on Aug. 28.

"We look at everything," said Chief Jim Howell of the FHP public information office. "But again, we don’t make a recommendation. We go to the ethics commission with our report."

Among the areas probed by investigators were Tunnell’s criminal, employment and credit history, fingerprint checks and education verification.

But according to the investigation summary, authorities did not check ethics complaint records. As indicated by the summary, the Florida Commission on Ethics "reported that Mr. Tunnell has no ethics complaint records."

Howell said the investigation delved into legal problems alone, not controversies that may have arisen during Tunnell’s tenure.

The last point is disturbing to Bay County activist Kevin Wood, who worked with the NAACP to bring the Sundancer allegations to light.

Wood, 49, worries that Tunnell’s history will have an impact on relations between blacks and law enforcement agents across the state, particularly when it comes to racial profiling. He also is concerned by what he sees as a lack of action by politicians.

"(It’s important) because our freedoms are at stake," Wood said. "I think that’s the bottom line. … Complacency and apathy is going to take this country down if we don’t stand up and do something about it."

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CINDY FARR,

                        Plaintiff,

vs.                                                                                           CASE NO.:  5:99CV160-SPM

GUY TUNNELL,

Bay County Sheriff, and

BAY COUNTY COMMISSIONERS,

                        Defendants.

____________________________________/

ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

Pending before the Court are the motions for summary judgment (docs. 36 and 37) filed by Defendant Guy Tunnell, Sheriff of Bay County, and the Bay County Commissioners.  Plaintiff filed responsive memoranda (docs. 46 and 47).  In accordance with Northern District of Florida Local Rule 56(B), the Court will rely on the parties' written memoranda and submissions to rule on the motion.

I.  STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) provides for entry of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law."  An issue of fact is "material" if it is a legal element of the claim under the applicable substantive law such that it might affect the outcome of the case.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);  Tipton v. Berfrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992).  "It is 'genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party."  Tipton, 965 F.2d at 998.

The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met  this burden the court must view the evidence and all factual inferences arising from it in the light most favorable to the nonmoving party.  Fitzpatrick v. City of Atlanta, 2 F.2d 1112, 1115 (11th Cir. 1993).  If the movant satisfies its burden of demonstrating the absence of a genine issue of material fact, the burden shifts to the non-movant to "come forward with 'specific facts showing that there is a genuine issue for trial.' "  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).  The basic inquiry by the court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."  Anderson, 477 U.S. at 251.  Against these standards, the defendants' arguments for summary judgment will be assessed.

II.  SUMMARY OF FACTS[1] AND CLAIMS

In March of 1997, Plaintiff Cindy Farr opened the Sun Dancer nightclub on Thomas Drive in Panama City Beach, Florida.  In June of 1998, Ms. Farr shut down her business.  She claims she was forced to do so by Sheriff Tunnell and the Bay County Commission through concerted efforts that were motivated by racial animus towards her patrons.

Ms. Farr explains that although there were other nightclubs in the area, hers was the only one that had a predominantly African-American clientele.  Not long after opening, residential neighbors near the Sun Dancer started making complaints.  Most concerned noise.

From the beginning, Sheriff Tunnell doubted the veracity of the complaints and his deputies determined that many of them were false.  It appeared that the residential neighbors did not wan a "Black club" in their area and were reporting false complaints to force the club into closing.

In the summer of 1997, the neighbors held a meeting at the Volunteer Fire Department, located within a block of so from the Sun Dancer.  The purpose was to discuss their problems with the club.  Ms. Farr was in attendance at the meeting and relies on one characterization of it as "nasty and racial in its overtones."

Some members of the Bay County Commission attended, as did Sheriff Tunnell and at least two Sheriff's office captains.  Sheriff Tunnel told the attendees that he was suspicious of some the complaints about the club.  He also explained that the problem appeared to be a zoning issue and that noise should be expected in a neighborhood that was close to a commercial, recreational strip on the beach.

In response to demands by attendees as to why more was not being done about the Sun Dancer, one of the Sheriff's office captain, Captain Hendrix, stated that he knew how to close the club down.  He then told the neighbors that the Sun Dancer needed to be a serious, ongoing problem before it could be forced to close under the nuisance law.  This sentiment was echoed by Captain Metz.

After the meeting, the frequency of the complaints increased and they appeared to be more serious.  Ms. Farr claims that the Sheriff responded to the complaints in an exaggerated manner and began keeping a heavy presence at the club.  By early fall of 1997, Sheriff's deputies routinely entered the Sun Dancer in a menacing manner, purportedly to conduct "walk-through" searches for compliance with alcohol licensing requirements.  They would check patrons' identification, search the business office, search under seat cushions, and use flashlights to search storage areas.  The deputies would remain in the club for extended periods of time-sometimes an hour or more.  They would also bring their canines inside the club and allow them to sit by the buffet.

In the club's parking lot, deputies roamed about with canines and they shined flashlights into patrons cars.  They also stood by the club's entrance and ordered patrons to go into the club immediately, go back to their cars, or face arrest for loitering.

The most serious conflict with the Sheriff's office occurred during the early morning hours of New Year's Day, 1998.  Between 1:00 and 2:00 A.M., a number of deputies gathered at the E-Z Serve Store next to the Sun Dancer.  From there, approximately eighteen deputies line up and then entered the club.  When Ms. Farr asked them why they were there, no one offered an explanation.

Inside, one deputy asked a patron for identification.  When the patron produced it, the deputy twisted the patron's arm behind him and arrested the patron for resisting arrest.  After the patron was taken outside, Ms. Farr also walked outside and saw deputies' cars all around the Sun Dancer and deputies and their canines patrolling the parking lot.

Later that morning, a fight occurred at the bar.  The fight was localized and not something our of the ordinary for a typical bar.  Sun Dancer security contained it and escorted the offenders to the door.  Then, Sheriff's deputies immediately informed security that they were shutting the club down.  They ordered the music to be turned off and all patrons to leave at once.  As the patrons, approximately two hundred, were being hustled to the doors, a deputy[2] used pepper spray or some similar substance at the front door.  This incited panic throughout the crowd.  Deputies were chasing and yelling at the patrons.  Those who hesitated for the briefest moment were arrested for misdemeanor offenses.

On January 5, 1998, Sheriff Tunnell sent a letter to the Bay County Commission urging them to file an injunctive suit against the Sun Dancer to shut it down.  At a commission meeting on March 31, 1998, Commissioner Wright recommended that the County Attorney draft a civil nuisance complaint for the neighbors to file against the Sun Dancer, as well as a complaint for the Bay County Commission to file on its own behalf.  The Commission voted in favor of the recommendation over the sole objection of Commissioner Atkinson, who did not feel the Commission should get itself involved in the matter which she deemed to be a neighborhood dispute.  Never before had the Commission instituted a nuisance suit against a night club as they were voting to do against the Sun Dancer.

In early April of 1998, the Commission filed the complaint for an injunction against the Sun Dancer.  Pressure from this legal action along with the continued harassment from the Sheriff's office and negative publicity made it impossible for Ms. Farr to continue operating the Sun Dancer.  She shut down her business in June of 1998.  This action followed.

Ms. Farr is suing Sheriff Tunnell and the Bay County Commissioners under Section 1983[3] for violating her civil rights (1) to be free from unlawful searches, (2) to equal protection under the law, and (3) to due process.  She is also suing them under section 1985[4] for conspiring to violate her foregoing civil rights.  Essentially, Ms. Farr alleges that the Sun Dancer was no more problematic that any other nightclub in the area and that the Bay County Commission and Sheriff Tunnell took concerted actions to close the club down because neighbors did not want a Black club in their area.  Sheriff Tunnell's actions took the form of persistent, unreasonable searches of the Sun Dancer's premises and harassment of its patrons.  The Bay County Commission's actions consisted of its filing of the lawsuit against the Sun Dancer.

III.  DISCUSSION

            A.  Standing

Defendant Bay County Commissioners make two arguments as to why Ms. Farr's claims should be dismissed for lack of standing.  First, the commissioners argue that Ms. Farr lacks standing because she is Caucasian and thus not a member of a protected class.  This argument is without merit.  One who is not a member of a protected class can proceed on an equal protection claim it if is based on injury from association with others who are.  See Board of Managers of the Glen Mills Sch. v. West Chester Area Sch. Dist., 838 F. Supp. 1035, 1041 (E.D.Pa. 1993);  Yesteryears, Inc. v. Waldorf Restaurant, Inc., 730 F. Supp. 1341, 1352-55 (D.Md. 1989).  Accordingly, as to this issue, Bay County's motion for summary judgment is denied.

Second, the Commission argues that Ms. Farr lacks standing because the Sun Dancer was actually operated by a corporate, namely Cool Rae's Productions, Inc., of which Ms. Farr was the sole shareholder.[5]  Although who operated the Sun Dancer is not material to the issue of standing, Ms. Farr may indeed lack standing if a corporate entity was the owner of the Sun Dancer.

Shareholders of a corporation lack standing to assert civil rights claims alleging wrongs to a corporation.  See Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311, 1316-18 (4th Cir. 1994); Bellows v. Amoco Oil Co., 118 F.3d 268, 276-77 (5th Cir. 1997).  This rule extends even to sole shareholders, like Ms. Farr.  See Smith Setzer, 10 F.3d at 1317; Bellows, 118 F.3d at 276-77.  Because the injury to the shareholder often arises from teh shareholder's relationship to the corporation, it is merely "derivative" of the injury to the corporation.  Smith Setzer, 20 F.3d at 1317;  see also Bellows, 118 F.2d at 277.  No separately actionable claim to the shareholder can result from a derivative injury.  See Smith Setzer, 20 F.3d at 1317;  see also Bellows, 118 F.2d at 277.

That being said, whether Ms. Farr owned the Sun Dancer, or whether the corporate entity did, is not entirely clear from the record.  The Court will therefore withhold ruling on the issue of Ms. Farr's standing at this time.  The parties should be prepared, however, to address the matter at the earliest possible opportunity because standing is a jurisdictional question.  See Engineering Conrtractors Ass'n of South Fla., Inc. v. Metropolitan Dade County, 122 F.3d 895, 903 (11th Cir. 1997).

B.  Discriminatory Purpose

Sheriff Tunnell and the Commission both argue that Ms. Farr's equal protection claims and civil rights conspiracy claims must fail as a matter of law because the evidence is insufficient to show that they acted with a discriminatory purpose.[6]  The evidence, however, is sufficient to raise a jury issue on this matter.

In determining whether the defendants acted with a discriminatory purpose some factors to consider are whether the defendants' actions more heavily impacted on one race then another, the historical background of those actions, the sequence of events which led to the challenged actions, and departures, if any, from normal procedure.  See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266-67 (1977).  When these factors are considered in the instant case, taking the evidence in the light most favorable to Ms. Farr, a reasonable jury could conclude that the defendants acted with a discriminatory purpose.

For example, a study of the dispatch reports from the Bay County Sheriff's Office supports a conclusion that the Sheriff directed far more walkthroughs and maintained a heavier presence at the Sun Dancer, even though more serious were reported at the other clubs where there were less Black patrons.  Also, Sheriff Tunnell requested the Commission to file and action to close the Sun Dancer down, which it did.  This action was unprecedented and followed through even though many, including Sheriff's officers, thought that the Sun Dancer was not a nuisance and just like any other club in the area.

These actions were taken subsequent to the neighborhood meeting, characterized as "nasty and racial in its overtones."  From this, it appears that Sheriff Tunnell and the Commission undertook to close the Sun Dancer down solely because the neighbors (and as a consequence they, too) did not want a Black club around.  Because the evidence presents a genuine issue as to whether the defendants acted with a discriminatory purpose, summary judgment as to this issue will be denied.

C.  Conspiracy

Sheriff Tunnel and the Commission argue that Ms. Farr's § 1985 conspiracy claims fail as a matter of law because the evidence is insufficient to show that they engaged in a common plan to violate Ms. Farr's civil rights[7].  The evidence in this case, however, is sufficient to sustain a genuine issue.

In addition to the neighborhood meeting, characterized as "nasty and racial in its overtones," commissioners and Sheriff's officials met on several occasions to discuss the Sun Dancer problem.  In one such meeting, related by Captain Hedrix, Commissioners Sparks and Nolan went to the Sheriff's office and asked the Sheriff to maintain a greater presence at the Sun Dancer.  Subsequently, the Sheriff set up extra details in the area.  At another meeting with a commissioner, the Sheriff and the commissioner discussed the need to document the complaints about the Sun Dancer.

The circumstantial evidence[8] suggests that many of these complaints were bogus and that the Sheriff and the commissioners well knew it.  Nevertheless, the Sheriff, in accord with his meetings with commissioners, increased his presence at the Sun Dancer and provoked problems at the club, including the problems that occurred on New Year's Day, 1988.  The Sheriff also used the complaints to make a record against the Sun Dancer.  The Bay County Commission then used that record to seek an injunction to shut the Sun Dancer down, even though the Sun Dancer was really no different than any other club in the area.

The evidence, taken as a whole and in the light most favorable to Ms. Farr, suggests that Sheriff Tunnell and the Commission engaged in a common plan, motivated by racial animus, to close the Sun Dancer down.  Accordingly, the motions for summary judgment as to this issue is denied.

D.  Unreasonable Searches

Sheriff Tunnell argues that Ms. Farr's claims based on unreasonable searches must fail as a matter of law because Sheriff Tunnell was authorized by law to conduct administrative searches of the Sun Dancer for compliance with state alcohol licensing laws[9].  This argument is unavailing.

Ms. Farr has complained that the searches, even if authorized by law, went far beyond the bounds of reasonableness and thus violated her rights under the Fourth Amendment.[10]  Sufficient evidence supports Ms. Farr's claims.  Because all searches, even authorized ones, are governed by a standard of reasonableness under the Fourth Amendment[11], Sheriff Tunnell may be liable to Ms. Farr if the searches are found be a jury to have been unreasonable.

E.  Due Process

Finally, Sheriff Tunnell argues that Ms. Farr's due process claims must fail as a matter of law because there is no evidence to show that Ms. Farr suffered any economic loss as a result of the Sheriff's actions.  This argument is unavailing.

The evidence, taken in the light most favorable to Ms. Farr, shows that the Sheriff's office harassed her customers and even closed down her business on New Year's Day, 1998.  From these facts, one can reasonably infer that Ms. Farr suffered economic losses, which Ms. Farr alleges forced her to close down her business.  Accordingly, summary judgment as to this issue is denied.

F.  Punitive Damages

Finally, Sheriff Tunnell argues that it is entitled to judgment as a matter of law to the extent Ms. Farr is seeking punitive damages for her claims.  Sheriff Tunnell is correct.  Local governments and local officials sued in their official capacities are immune from punitive damages under § 1983.  See Brandon v. Holt, 469 U.S. 464, 471-72 (1985); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).  Punitive damages are therefore unavailable in this case.

G.  Conclusion

With the exceptions of punitive damages, the defendants have failed to show that they are entitled to judgment as a matter of law on any of Ms. Farr's claims.  Accordingly, it is hereby

ORDERED AND ADJUDGED that summary judgment is granted in favor of the defendants on Ms. Farr's punitive damage claims.  In all other respects, the defendants' motions for summary judgment (docs. 36 and 37) are denied.

DONE AND ORDERED this 18th day of May, 2000.

Stephan P. Mickle

United States District Judge